For any professional – lawyers included – one of the biggest nightmares in life is being served with a malpractice claim.
Even if you know in your heart of hearts that you did nothing wrong, your mind starts racing. What does this mean for your career? Who is going to find out about this? How are you going to defend yourself? How much is it going to cost?
Even the most seasoned legal professionals will experience some, if not all, of these anxiety-producing thoughts.
In fact, the anxiety can be so overwhelming that you simply can’t figure out what to do next.
In this post, we’ll help you navigate through your first malpractice claim so that, hopefully, you come out the other side of this experience relatively unscathed.
Breathe, but don’t ignore
Before you do anything, it’s a good idea to step back, breathe, and put things into perspective.
For example, did you know that according to the American Bar Association, four out of five attorneys will be sued for professional malpractice at some point in their careers? In other words, you’re in good company, and you’re going to get through this, just like the others did.
Once you’ve calmed down a bit, it is important to read the complaint all the way through.
Although it may be difficult, try to read it objectively. Figure out exactly who brought this lawsuit against you and what it is they claim you did negligently (because, after all, malpractice is just a species of negligence).
Next, figure out the date by which you must file your answer.
If you’re a litigator, this will be simple. If not, call one of your attorney or paralegal friends and have them help you determine your response date. The very last thing you want to do is ignore your answer deadline and end up with a default judgment pending against you.
Stay focused on what your opponent has to prove
From the very first moment that you read the complaint, you should be hyper-focused on ways you can overcome the plaintiff’s claim of malpractice.
The best way to do that is to have the essential elements of that claim front of mind.
While they may very slightly from state to state, in most cases, in order to prevail on a claim of legal malpractice, the plaintiff must prove:
- That they were in an attorney-client relationship with you;
- That you committed one or more acts or omissions that were negligent (meaning that you “failed to use that degree of skill, care, diligence, and knowledge possessed and used by a reasonable, careful, and prudent attorney acting in the same or similar circumstances”); and
- That your negligence harmed the plaintiff in some way. This is usually measured by way of economic damages.
By focusing on these three essential elements, you automatically give yourself multiple possible defenses.
For example, maybe you are being sued by someone who took advice from your website, but you never consulted personally. Will that person be able to prove an attorney-client relationship? There’s one possible defense.
Likewise, even if you did give negligent advice, did the plaintiff actually suffer any monetary harm? If not, that may be another defense.
You get the picture.
The point is, if you’re going to obsess about anything at this point, you should be obsessing on how to poke holes in these required elements of proof.
Contact your insurance provider
As you probably already know, legal malpractice insurance mandates vary from state to state.
In the event you have coverage, one of the first things you’re going to want to do is give your insurer notice of the claim. Depending on your coverage, this may trigger duties on the insurer’s part to provide you with an attorney and/or to pay for your defense.
Now, at this point, you may be considering representing yourself.
Try to remain cognizant of the old adage: “a lawyer who represents herself has a fool for a client.”
Nowhere may that be more true than when it comes to legal malpractice claims. You’ve paid your premiums. It’s time to reap the benefits.
Prepare your answer
By the time you’re ready to prepare your answer, you are probably being represented by an attorney provided by your malpractice insurer.
Nonetheless, you should remain active in the preparation of your defense. Review the answer they prepare on your behalf carefully.
For example, you’ll want to make sure they assert all applicable affirmative defenses to the malpractice claim. These may include things like contributory negligence, fraud, illegality, or the statute of limitations.
Preserve relevant documents
As an attorney, you know the drill. You must preserve all relevant documents in case they are sought by the plaintiff in discovery.
Relevant documents in a legal malpractice case may include client files, correspondence, pleadings from the client’s case, and other materials related to the matter in question.
It is important to be organized and thorough when gathering these materials to ensure that nothing is overlooked.
Mitigate risks to your practice
Additionally, now is the time to assess whether you need to take steps to mitigate future risks to your practice.
A thorough risk management audit may include reviewing your firm’s policies and procedures to ensure that they comply with the applicable rules of professional conduct and assessing client intake procedures to make sure you’re not taking on clients who are likely to bring malpractice claims.
Guide your employees
Finally, it is important to guide your employees through this process.
Facing a malpractice claim can be stressful for everyone in your practice, and it is essential to communicate openly and honestly with individuals who need to be involved.
It is also critical to understand that, as with any type of malpractice case, the plaintiff’s lawyers will try to speak with your former employees. Consequently, it’s important that you treat employees with respect during and after their tenure at your firm so they aren’t tempted to say negative things about your practice out of spite.
Take it one step at a time
Undeniably, malpractice claims are one of life’s greatest stressors for an attorney. However, if you handle the situation with care, cooperate with insurance counsel, and stay on the same page with employees, the outcome may not be as bad as you fear.
