A common response by an attorney, when first learning about a malpractice claim, is one of shock, anger, or outrage. “How dare my client do this to me! How dare someone question my abilities!” The situation is viewed as a personal affront. Other attorneys respond with disbelief, “the client is simply misinformed and this can be corrected,” or outright dismissal, “this will never go anywhere so I can ignore it.” Sometimes the response is one of extreme embarrassment and every step is taken to hide the situation from everyone, including the client. Regardless of what your initial response might be, should you ever face a claim, try to let the emotions go or at least try to keep them in check. Here’s why.
Sometimes an attorney doesn’t need to be sued to be made aware that an error was made. The error was recognized as soon as it was made. Should this ever happen to you, don’t ignore it. Just as a minor infection can wreck physical havoc if left unattended, a known incident left unaddressed can eventually become a serious concern. Facts never get better over time and any significant delay in dealing with it can so easily be framed as you putting your interests above the interest of your client. Juries can have field days with that one.
My best advice upon the recognition of a misstep is simply to encourage you to respond as the professional you are. In other words, don’t let your emotions run amuck. Not all incidents turn into claims and this is important to remember. Call your malpractice insurance carrier immediately to report the incident and to seek advice. With any luck, the problem can be addressed and resolved favorably for all involved through claims repair. Regardless, with advice in hand, discuss the matter with the client in a straightforward manner. Advise the client about what happened, the consequences of the error, and the options that the client now has. Inform the client that a conflict of interest may exist which might preclude you from representing the client any further. Organize and review your file. Do not alter the file by adding or taking anything from it. Make certain to keep a complete copy of your file should the client wish to take possession of their file.
Similarly, if or when an unexpected allegation of malpractice arises, work to get beyond the initial emotional responses. Although common, quite natural, and certainly understandable, these emotional responses tend to not serve you well in the long run. Let them go and, again, focus on responding as a professional. Understand that many attorneys will be sued at some point during their career. You are not alone. Know, too, that of those attorneys who have gone through the experience, many come out the other side just fine and in some situations as better attorneys.
Once a claim arises, it is extremely important to report the claim to your malpractice carrier immediately and wait for their guidance or the hiring of defense counsel if called for. Then, follow the advice of your carrier or your defense counsel. We all have heard the saying “attorneys make the worst clients.” Try not to live it. Take heed, you are now the client. It’s time to stop being the lawyer because your judgment may be impaired due to the emotions that come with the experience. You are simply too close, too involved. You would not have your clients handle their own lawsuits. 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 respond to a demand letter or a complaint because doing so could do more harm than good.
When dealing with a malpractice claim, however, being “professional” doesn’t mean 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 advice they are receiving. Others allow their emotions to spin out of control for any number of reasons including anger, frustration, embarrassment, impairment or, unfortunately, an inflated ego. Such behaviors only exacerbate the entire situation if for no other reason than they get in the way. Meaningful participation is desired and cooperation is essential. Review your file and assist defense counsel and your carrier in learning the facts; and understand that we know your recollection of the situation is not ever going to be 100%. No one’s is.
Remember that you are human and, as such, will make a mistake from time to time. That’s life; but balance is important, particularly when dealing with a significant claim. Do all that you can to not allow the claim to affect your day-to-day life at home or in the office. A constant focus on the claim can drain you physically and emotionally and potentially jeopardize your support systems and your attention. Some even struggle with insomnia because they simply can’t let it go. Find a way, because the end result of not doing so can all too easily lead to a second misstep on another file. Finally, assuming you have a malpractice policy, remember that you purchased this coverage as a way to protect both you and your client. Thank goodness for that.
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. The professional response is to look 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 ask what can be learned as a result of the incident or claim so that the situation won’t be repeated. 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. In my mind, that’s what it means to be a professional.