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Malpractice and Fear of the Public Eye

Fear can be a powerful motivator. What might you do upon learning that the circumstances surrounding a malpractice claim were about to become public knowledge particularly if you just learned that the firm attorney responsible for the claim is addicted to his pain medication? How about if in the course of electronic discovery of a claim you learn that the attorney responsible for the malpractice has been heavily involved in viewing child pornography? Would you be concerned if that information were to become public knowledge? What if you realize your partner is having an affair with the wife of a major client? Situations like these do arise and when they do, fears will come to the forefront. It’s a natural response. The problem with fear, however, is that too often it can lead to poorly thought through decisions and actions.

For some, the greatest fear that comes with a malpractice claim is the fear of being exposed. Someone else will know something we didn’t want known and pass judgment on us. Perhaps this is why a common response to an allegation of malpractice is often to initially act to preserve personal reputations and, above all, the reputation of the firm. Unfortunately, fear over what might happen to reputations can be disastrous if this feeling is irrationally and spontaneously acted upon. For example, even though there may be no liability, a desire to settle a malpractice claim immediately and at all costs to ensure that reputations are preserved is usually not a responsible decision. If a plaintiff is able to get away with this once, why would the tactic not be repeated? It very well may be.

Think about this, many clients will forgive mistakes; but they will be far less likely to forgive them if the firm or responsible attorney initially responded to notice of the mistake with aggressive tactics or with checkbooks wide open out of a fear that reputations may suffer and without regard to the facts or the firm's pre-existing reputation in the community. Remember that actions speak louder than words. The point here is not to devalue the significance of reputation, for indeed, I value reputation highly. The point is to suggest that as a malpractice claim progresses decisions made, with the primary motivation of preserving reputation driving the decision making process, will often lead to less than ideal outcomes. Why? Because it is one more way for attorneys to demonstrate that their own needs are being placed above their client’s and clients talk. It takes a long time to build a public reputation and that reputation can be destroyed in minutes with one ill-conceived comment or action. How many times have we all seen this play out with various individuals running for or currently serving in public office in recent times?

Because the temptation to allow reputation considerations to drive decision-making processes is stronger in high profile, or potentially high profile, malpractice claims, I will share a few practice tips that address this type of situation. The goal is to offer ideas that may help keep feelings in check so that better decisions can be made. Depending upon the specific circumstances, these tips will also be relevant in responding to non-high profile claims or even a disciplinary matter.

  • If calls from other clients are expected after a claim or disciplinary complaint is made public, develop a formal response to inquiries and train all staff and attorneys in how to handle these calls. The same should be true for handling calls from reporters and, in a perfect world; one person should be the designated point person for handling calls from reporters.
     
  • As standard responses are developed, remind all firm personnel of the importance of maintaining confidentiality. The temptation to defend can easily lead to a breach of confidentiality. This will only worsen matters. There is no exception to Rule 1.6 that makes it ok to divulge client confidences to the public in order to maintain one’s reputation. This does not mean that the situation should always be ignored. A firm may make public statements that they are in control of the situation, are taking measures to remedy the problem, or perhaps to provide reassurances that all client matters are being taken care of in a responsible fashion. 
     
  • Use discretion in choosing with whom to discuss the matter and how much to share. Sometimes these conversations lead to depositions. Again, make certain that everyone at the firm is aware of this. 
     
  • Early on, have involved staff and attorneys review files for complete documentation and, if there are shortcomings, have them add notes while memories are still fresh. Don’t doctor the file, just preserve the recollection.
     
  • Do not respond to an allegation prematurely. Quick (and often emotional) responses that are not thought through can seriously exacerbate the situation. Begin by notifying your carrier and assist them in bringing in defense counsel as quickly as possible, then listen to the advice these experts give. Remember that defense counsel has the more level head. By the same token, never “bury your head in the sand” and decide to completely ignore what has happened. These situations are not like fine wine, when left alone they never get better with time.
     
  • Depending upon the degree of publicity involved and the value of the claim, consider hiring a public relations firm. If spin control is truly going to be necessary, allow an expert to handle the situation from the beginning.
     
  • Shield all involved parties. Defense counsel or an appointed attorney at the firm should become the sole public voice for the firm. Emotions are often running too high to risk placing any involved party before a microphone or camera.
     
  • When a client alleges malpractice, but cautiously agrees to have you remain in the case after being given a promise of “we’ll fix it,” proceed with extreme caution. Certain high profile claims became so because they involved a high profile client that the firm did not want to lose and the firm was eventually unable to fix the matter to the client’s satisfaction. The mistakes that often exacerbate the situation are in failing to insist that the client seek independent advice before agreeing to move forward with a conflict in play coupled with a failure to obtain written informed consent from the client. A firm must always acknowledge and responsibly handle this conflict of interest. If you fail to do so, realize that your decision may well lead to your unintentionally placing the firm in a high profile claim that now has an added conflict of interest component mixed in. The better option is often to “walk away” and not try to run with the self-help approach.
     
  • Do not hire defense counsel before notifying your malpractice carrier because this action can jeopardize coverage. Further, do not expect to be reimbursed for expenses incurred prior to having your malpractice carrier involved. The lesson is contact your malpractice carrier at the first legitimate sign of trouble. Finally, while malpractice carriers understand the desire to preserve reputation, it is not possible to insure against loss of reputation. Therefore, in order to achieve everyone’s goals, seek to work with a team consisting of all involved attorneys, firm management, defense counsel, and the insurance carrier from the beginning. Hopefully everything will work out fine in the end.

Mark Bassingthwaighte, Esq. is a Risk Manager with Attorney’s Liability Protection Society, Inc. (ALPS). In his tenure with the company, he has conducted over 1,000 law firm risk management assessment visits, presented numerous continuing legal education seminars throughout the United States, and written extensively on risk management and technology. Mark received his J.D. from Drake University Law School and his undergraduate degree from Gettysburg College. He can be contacted at mbass@alpsnet.com.

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