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The Opportunity that Comes with a Malpractice Claim

MalpracticeAs part of my risk consulting, I sometimes explore a firm's claims history in a group setting of attorneys. Every once and a while, one or more of the attorneys will resist this effort and question the appropriateness of the topic. With similar frequency I find myself in an open and honest discussion about what happened. The claims discussion is an interesting part of the visit process as I can learn a great deal about the inner workings of a firm based upon how the group responds. Ultimately, I am looking for an ability of the involved attorney(s) and the firm to hold themselves accountable for their actions or inactions. I am also looking to see if they have embraced the learning that can be taken from the experience and, perhaps most importantly, trying to determine if that learning has been institutionalized. 

Why go through this process?

Consider these two situations. Firm A dealt with a claim that resulted in a $95,000 loss payout. Through it all, the involved attorney proclaimed that the claimant was unreasonable, unappreciative, and demanding to say the least. In addition, the involved attorney continually refused to consider that his efforts in handling the underlying matter were anything less than stellar. Beyond this, the fact that a claim arose was not to be shared with staff, associates and, to whatever degree possible, other partners of the firm. The matter was never discussed internally and there were no firm-wide adjustments to firm practices and procedures. Having dealt with a similar situation, Firm B went even further. In addition to their viewing the entire situation as the fallout of taking on a problem client, the firm made it clear to the involved attorney that they should part ways and that’s exactly what happened.

 

Now, compare the above situations to these. Firm C faced the same set of circumstances as Firm A. With Firm C, however, the involved attorney appreciated that a mistake might have been made during intake. She looked for the learning. Client intake and screening procedures were reviewed and changed in order to help her better identify potential problem clients. Firm D faced what Firm B did. Here, however, the firm had an open culture. Changes in file documentation, changes in communication patterns, and changes in intake procedures were all considered. Staff was brought into the discussion for their input and ideas. Associates and other partners were briefed on the entire situation with the intent of institutionalizing any learnings gained so that others would not make a similar mistake. In short, this firm sought to be better for the experience.

 

To review, Firm A shifted accountability and inhibited learning and Firm B believed that they made the problem go away. The involved attorney at Firm C accepted accountability and embraced the opportunity for learning. Firm D went the distance and not only looked for the learning but saw to it that everyone at the firm learned from the experience. Of these four firms, I would argue that Firm D represents the lowest risk from a malpractice insurer's standpoint. Unfortunately, there are many firms that more closely resemble Firm A, B, or C than they do D and that's why I sometimes discuss claims. I am trying to determine the type of firm I am dealing with. 

 

Certainly there will be times when claims cannot and should not be openly discussed within a firm, particularly while certain claims are new and still evolving. If you are ever legally advised to avoid discussing a claim until it resolves, take that to heart. There will come a time, however, when following that advice is no longer necessary. That will be when the time has come to look for the learning. You might start by talking with defense counsel about the underlying matter. What learning and insights might she have to share? Discuss the underlying matter with a colleague, with a partner, or amongst your practice group. What do they see? Might involved staff have any insights or suggestions regarding prevention? Call your malpractice carrier and talk with the claims handler. This individual's job is to identify and evaluate risk and liability issues in the malpractice arena. There is no one right way to look for the learning. Just don't miss the opportunity. Finally, whatever the learning is, consider whether the firm as a whole could benefit from it. If so, seek to institutionalize it so everyone benefits. A firm meeting where the situation is openly presented and discussed may even be called for.

 

If you are open to this process, consider doing something similar with disciplinary complaints, even the frivolous ones. Frivolous complaints are often filed by disgruntled clients and as such represent an additional opportunity for learning. For example, did you perhaps interact with the client in some fashion that exacerbated the situation? You may never know unless you start asking the questions. At the end of the day, the fact that a malpractice claim or disciplinary matter arose really doesn’t matter. What matters is, will the involved attorney or firm be a better attorney or firm as a result of the experience? Remember, one is not defined by the circumstances in which one finds one's self. Rather, one is defined by how one responds to those circumstances and that's what we all refer to as character.

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