As AttPro celebrates its 15th Anniversary, we continue to expand our footprint in the legal malpractice market. As we grow, so does our team! We are pleased to introduce our newest Claims Consultants, Tami Harwood, Colleen Zaniewski, and Carla Morman. Each one of these attorneys brings with them vast experience in handling legal malpractice claims. So, we thought it would be interesting to ask Tami, Colleen, and Carla some questions about the claims they see most often and how lawyers can best assist with a legal malpractice claim or grievance.

What is the best thing a lawyer can do when they discover a mistake?

(TH) If a lawyer is faced with a potential malpractice claim, they should not assume that it will go away and should report the matter to the carrier. The attorney should also report the error or mistake to the client as part of the duty to keep the client informed. However, not all mistakes are legal malpractice, and it is important to distinguish between reporting facts material to the representation and admitting liability. Admitting legal malpractice could be a violation of the terms of the insurance policy which prohibits an attorney from making any admissions of liability. Accordingly, the lawyer should timely report any adverse developments to the client and provide just the facts without conceding that the mistake could constitute legal malpractice.

(CZ) The first step, and often the most difficult one, is to tell the client about the incident. The lawyer should advise the client to seek other counsel regarding the incident as the lawyer is unable to give any advice due to the inherent conflict. The second step is to notify the legal malpractice insurance company. Many attorneys believe that it is better to wait for the claim or a lawsuit before involving their legal malpractice insurer. However, there are serious risks in delaying the reporting of a claim. The biggest risk with delayed or late reporting is the possibility of a denial. Lawyers should not try to face a claim on their own. Most lawyers do not have knowledge or experience regarding legal malpractice, so it is imperative to bring the insurer on board as soon as possible.

CM) The lawyer should notify the legal malpractice carrier and promptly inform the client. The carrier will determine whether the mistake can be fixed or mitigated. Depending on the situation, AttPro’s policy may provide pre-claim assistance, and we can assign defense counsel to assist with claim repair before any actual claim is filed. For example, an insured lawyer recently notified us of a matter they were handling that was dismissed as abandoned. We were able to provide pre-claim assistance and with the help of defense counsel, we assisted the insured lawyer with briefing at the trial court and appellate level that reversed the dismissal.

If claim repair is not an option and a conflict of interest exists with your continued representation, you should meet with the client to advise of the need to disengage or withdraw. You should document the conflict and disengagement in a written letter and provide it to the client with a copy of their file at the meeting. If court withdrawal is needed, the lawyer should explain that they will need to seek leave of court to obtain an order of withdrawal.

What types of claims do you see most frequently?

(TH) The most frequent claims that I see are a result of an attorney’s failure to timely file lawsuits within the relevant statute of limitations and claims related to divorce/custody proceedings. Because plaintiff personal injury attorneys are affirmatively litigating claims on behalf of their clients, they have the added responsibility of complying with time constraints. Malpractice claims against plaintiff personal injury attorneys are most often a result of missing key deadlines, failing to timely commence suit because of applying the wrong statute of limitations, failing to calendar deadlines, missing crucial filing deadlines, and failing to sue the correct parties. There are also a higher frequency of claims against attorneys who practice family law because of the contentious nature of this area of practice. Unfortunately, neither party is usually satisfied with the result, especially when substantial assets are at stake or there are child custody issues. In family law matters, claims can arise when the attorney fails to obtain complete financial information or conduct discovery to uncover assets. Sometimes, the failure to hire an expert to perform an appraisal of marital property can result in an unfair divorce judgment for which a client may assert a claim.

(CZ) The types of claims I see most are due to poor administrative procedures and calendaring mistakes. Investigation and discovery mistakes, as well as inadequate knowledge of the law and poor lawyer-client communication, are other frequently reported claims. Lawyers should keep a calendaring system that has checks and balances in place to ensure deadlines are not missed. Attorneys should not take on cases that involve areas of law for which they do not have the required knowledge and experience. If their client has a problem they are not familiar with, the lawyer can always refer the case to another lawyer who is an expert in the field.

(CM) I most often handle cases involving missed deadlines and claims brought in response to fee collection efforts. It is important to weigh the pros and cons before filing suit for fees. Preventing fee disputes from arising in the first instance is the best strategy. Having written fee agreements, securing appropriate retainers, providing detailed and regular bills, maintaining communication with the client about fees and work performed, and considering fee arbitration may help minimize exposure.

In lieu of suing your client to collect fees, consider offering payment plans. Although it may take longer for the bill to be paid, it may help avoid a counterclaim to your suit for payment.

Describe how an attorney can best “assist” in the claims process.

(TH) Lawyers can best assist in the claim process by being responsive to requests for documentation and information during the investigation of the claim and cooperating with defense counsel, if assigned. When a lawyer does not cooperate or effectively assist in the defense of their claim by providing truthful disclosures, it could negatively impact defense counsel’s ability to defend the claim, including timely complying with discovery deadlines. It may also adversely impact defense counsel’s and the carrier’s ability to expeditiously resolve the claim, especially if liability is established and the lawyer withholds their consent to settle.

(CZ) Lawyers can best assist by keeping complete and organized records and being responsive to both counsel and their claims consultant. Lawyers should provide timely and accurate information to their counsel to ensure they can develop a robust defense strategy. If the lawyer does not keep organized records, they may miss a deadline or be found in contempt if they do not cooperate in producing requested documents.

(CM) An attorney should provide sufficient detail to the carrier with their initial report and cooperate with the claims team and their assigned defense counsel in providing information. Failure to provide comprehensive report or omitting pertinent details can affect the strength of your defense. Additionally, failing to include important information such as the date of alleged wrongdoing and not including key documents can delay both the set-up of the claim and development of an initial strategy. By being honest and forthcoming with the facts and circumstances of the alleged incident, you can expedite the claims process allowing you to put the claim behind you.