Made a Mistake? Stop, Drop, and Roll

Kate Gould, Esq.
March 18, 2024

Reading time: 3 minutes

As an attorney, you might feel like you are putting out fires every day, all day. But what about when you find yourself caught in the blaze? If you made a mistake that may warrant a malpractice claim or grievance – stop, drop, and roll. 

Any elementary school child can tell you what they have been taught to do if they find themselves in the precarious position of having their clothes catch fire. And these tips easily translate into your next steps when you have discovered a mistake that may constitute malpractice:

Stop – Just as the fire-affected person is instructed, the lawyer who made the mistake should stop and cease any movement which may fan the flames or hamper those attempting to put the fire out. Instead of trying to fix the error or, even worse, attempting to conceal it, the lawyer should immediately stop any further action. Once you know there is the possibility of a claim or potential claim, it is important to tell the appropriate individuals in the firm immediately. They have a right to know about the issue and will be more objective than you regarding the situation. Also, it is likely that a claim against you will also result in a claim against the firm, so it may also be necessary for the firm to take action. You should then reach out to your malpractice carrier. Be sure to comply with all reporting requirements and make no admissions or statements to the client before involving the carrier. If the situation involves an act, error, or omission by you that has prejudiced the client’s position, you have an ethical obligation to inform the client. This should be done after consultation with the carrier. The value of being honest about the mistake cannot be overstated. 

Drop – The elementary school student is taught to drop to the ground and cover their face with their hands in an effort to avoid facial injury. Like the child, the lawyer should take steps to mitigate the damage. When a mistake is made, the lawyer should drop (or at least avoid) communication or discussions about the matter with anyone not on a need to know basis. Do not send texts or emails discussing the situation. This may create admissions against interest or discoverable evidence.

Roll – To extinguish the flame, children are taught to roll on the ground to deprive the fire of necessary oxygen. For the lawyer who has committed malpractice, it is easy to think you are the best person to defend yourself against a claim. However, it is critical you allow an experienced legal professional liability claims team and their defense counsel put out the fire. It is difficult for lawyers to be objective about their work. Let your carrier and their claims professionals take over and analyze whether malpractice did indeed occur. Many potential claims can be avoided by taking quick action to repair the mistake before any damage has occurred. Pre-claim assistance can save you from an embarrassing claim and your client from suffering damages. However, if you delay reporting the claim to your carrier, the opportunity to repair the claim can be lost. Legal malpractice defense is a highly specialized area of practice, and your best defense is working with your carrier and defense attorney to defend against a malpractice claim.

Everyone makes mistakes, but the stakes are undoubtedly higher for lawyers. While it is easy to dwell on the error and question your legal prowess, do your best to analyze what went wrong, implement additional processes to guard against future mistakes, and move forward. Having a claim or potential claim made against you can be daunting. However, partnering with the right carrier, utilizing their expertise, and knowing the appropriate steps to take, can make your situation much less stressful. By seeking risk management resources before a problem arises, you can be better prepared to avoid being burned by a future claim.

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Information provided by AttPro Ally is not intended as legal advice. This publication provides best practices for use in connection with general circumstances and ordinarily does not address specific situations. Specific situations should be discussed with legal counsel licensed in the appropriate jurisdiction. By publishing practice and risk prevention tips, Attorney Protective neither implies nor provides any guarantee that claims can be prevented by the use of the suggested practices. Though the contents of AttPro Ally have been carefully researched, Attorney Protective makes no warranty as to its accuracy, applicability, or timeliness. Anyone wishing to reproduce any part of the AttPro Ally content must request permission from Attorney Protective by calling 877-728-8776 or sending an email to [email protected].

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