When first learning that a legal malpractice claim is on the horizon, a common response is often an emotional one. “How dare my client do this! How dare someone question my abilities!” The situation is viewed as a personal affront. Others respond with dismay, “I can’t believe this is happening. Surely my client must be misinformed,” or even with outright denial perhaps due to fear of the unknown, “This will never go anywhere. In fact to even acknowledge it would give it unwarranted credence so I’m going to completely ignore it.” There are even those whose response is one of extreme embarrassment. These folks take every step they can to hide the situation from everyone to include those who could be of great help in trying to fix the problem. “What are you talking about? What claim? There is no claim.” While an emotional response is entirely appropriate and normal at the outset, work to get past it or at least try to keep it in check because over the long haul it will get in the way and can cause real problems.
Here is a great example of what I’m trying to get at. Once and a while an attorney is well aware that a mistake has been made long before a malpractice suit is filed. In fact the client isn’t even yet aware of what has happened. I’m talking about things like blowing a statute of limitations date or the trial court granting summary judgment against your client due to procedural failures that were your fault. Should you ever find yourself in a similar situation, don’t ignore it. Just as an infection can wreck physical havoc if left unattended or not properly treated, a known incident you completely ignored or tried to fix with a little self-help can quickly become far more serious than it would otherwise have been. One might ask why that is. For starters, any significant delay in informing the client and/or in dealing with it can so easily be framed as you putting your interests above the interest of your client and juries can have field days with that one. Making matters worse, serious coverage concerns may also be in play due to a failure to timely report in accordance with your policy provisions. The better option will always be to immediately report the situation to your malpractice carrier, even before talking with your client, and working with them to responsibly address the situation.
Regardless of how it first evolves, once awareness of a potential claim arises, it is extremely important for you to not make any decisions about how to deal with it. While it’s fine to pull, organize, and review the file at the outset, even the simple act of trying to strengthen your position by adding or removing something from the file would be a really bad idea. Just immediately report the situation to your malpractice carrier and wait for their guidance or the guidance of defense counsel if one is retained. Listen to whatever advice is shared and let these folks do their job. We all have heard the saying “attorneys make the worst clients.” Take that to heart in this situation. You are now the client. You cannot act as your own lawyer if for no other reason than your judgment may be impaired due to the emotions that come with the experience. You are too close, too involved. You wouldn’t have your clients handle their own lawsuits would you? Follow your own advice and don’t try to handle your own. Yes, this does mean that regardless of the merits of any allegations, you shouldn’t even take it upon yourself to respond to a demand letter or a complaint because doing so could do more harm than good. This is not to say that you shouldn’t meaningfully participate in your defense. Of course you should, just do so as the client.
Unfortunately, some attorneys will continue to try to lawyer the matter and ultimately ignore the legal advice they are receiving. This often happens with attorneys who suffer from that debilitating illness otherwise known as an inflated ego. Others will sometimes allow their emotions to spin out of control which will only exacerbate the entire situation. I can’t say this enough. Don’t allow any of this to happen. My best advice is to encourage you to respond as the professional you are. I can share that not all incidents turn into claims and, for those that do, many are resolved without a loss being paid. Remember that. With any luck, the problem may be something that can be addressed and resolved favorably for all involved through claims repair.
I know that putting the emotions aside can be hard. You are human and, as such, will make a mistake from time to time. We all have. That’s life. However, when dealing with the consequences of whatever any specific mistake happens to be, balance is important. This will be particularly true with serious situations such as a legitimate malpractice claim. If or when a claim arises, do all that you can to not allow it to affect your day-to-day life at home or in the office. A constant focus on the claim will drain you physically and emotionally and can jeopardize your support systems and your attention. Some attorneys even struggle with insomnia during times like this because they simply can’t let it go. Find a way. Life’s too short.
A final thought is to encourage you to view all malpractice claims and incidents as a learning opportunity when you are emotionally able to do so. No one is a bad attorney or a bad person simply because they made a mistake. True professionals respond by looking critically at all aspects of the incident or claim in order to consider how the situation might have been avoided or handled differently. Look for it. It’s there. The purpose is to understand what happened and learn from it if for no other reason than to make sure something similar won’t ever happen again. You might ask the following. What could have prevented the problem? What procedural changes could be made? What might I have done differently? Asking and answering these kinds of questions can lead to very positive results going forward if you take advantage of the opportunity. Don’t miss it. Personally, I believe that no one is defined by the mistakes that he or she makes in life. Rather, we each are defined by how we respond to the mistakes we make. Seek to be better for the experience. After all, isn't that part of what it means to be a professional? I certainly think so.
As a Risk Manager for ALPS, Mark Bassingthwaighte. Esq. is responsible for developing and delivering new risk management and CLE products and services, risk management consulting, law firm risk evaluations, and writing content for the ALPS 411 blog at www.alps411.com. In his tenure with the company, Mark 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 Law School. He can be contacted at: firstname.lastname@example.org