As a risk manager for the past 20 years, I’ve had more conversations with lawyers than I can keep track of and that were about more topics than I can remember.  Of course, because I work for a legal malpractice insurer, it should come as no surprise that a number of the ones I do remember were about a malpractice misstep.  Sometimes it was to look for the learning, at other times it was trying to determine if a misstep had even occurred, and every once in a while, it was about regretting not having appropriately dealt with a misstep that did occur.

Claims can and, for many lawyers, will arise at some point in their career.  Client had a business deal go south, blame the lawyer. Client had to face an unexpected outcome, eventually realized he made the wrong decision, or just didn’t like losing, blame the lawyer.  Heck even adverse parties, third parties, and non-clients sometimes try to blame the lawyer. It happens. What interests me is, if and when it does, what should your response be?  This is worth discussing because I don’t want you to ever end up on a call with me regretting what you did or didn’t do. Here’s one reason why.

A number of years ago, I took a call from a solo attorney who was nearing retirement. The retirement years were to have been his best years yet because his plaintiff practice had been quite successful.  He was an esteemed member of the bar and had become something of a pillar in the community.  His reputation of helping others and being of service to the community at large was above reproach, that is, until it all went horribly wrong.

Two years or so before calling me, this attorney was handling a personal injury matter.  It was nothing out of the ordinary and one of hundreds upon hundreds of similar matters he had successfully resolved over the years.  I never did learn how the statute got blown that one time, and it really doesn’t matter. What matters is that it did and this attorney just couldn’t manage to face the problem head on.  He felt embarrassed and disappointed in himself. I imagined that he simply couldn’t stand to look at himself in the mirror. To make matters right, in his mind, he made the decision to “settle” the matter. He contacted the client and explained that an offer was on the table. While the amount wasn’t quite what he had hoped to obtain, it was a reasonable offer. The client was appreciative of his efforts and agreed to settle her claim for the offered amount. The attorney then personally paid the offered amount out of his own funds and the file was closed and put to rest.

Now, let’s fast forward to his call to me. Long story short is his attempt to cover up the malpractice misstep eventually came to light and a malpractice claim was filed.  Of course, due to the extremely late notice coupled with his past actions, (not the least of which included signing a warranty statement on an application to keep his malpractice insurance policy in force that stated he was not aware of any acts, errors or omissions that could reasonably be expected to give rise to a claim), not only was coverage denied but he also lost all prior acts coverage due to the policy being rescinded.  In short, he no longer had any malpractice coverage for any of the work he had done over the life of his practice. Making matters worse, a disciplinary complaint was filed that eventually resulted in a suspension of his license.  So, one misguided decision changed everything. Retirement was thrust upon him and what were to have been the good years began in shame and devastation.

How should this attorney have responded?  More importantly, what should you do if you become concerned that you might have made a misstep?  Here’s the best advice that I can share because it can help dictate what’s to follow. Remember this. People are not defined by the circumstances in which they find themselves.  They are defined by how they choose to respond to their circumstances.  Stated another way, in response to a potential claim, be the professional you are.

With any potential misstep, never ignore it! Unlike fine wine, viable claims don’t age well. Start here. Find your malpractice policy and review it. You need to be aware of what the notice requirements are in order to comply with them. Segregate the file and make sure everything in it is preserved, to include all substantive email, attorney notes, etc. Open a new file to keep track of all communications with your insurance carrier and new lawyer. Contact your carrier directly and provide written notice, detailing the circumstances of the problem.  This is not the time to be vague, to blame the client, or to worry about a possible rate increase. Also, do not discuss the problem with your client until contacting your carrier.  Most importantly, let the professionals who handle malpractice claims day in and day out do their job. Don’t let your ego get in the way. Cooperate, take their advice, and listen because sometimes it’s even possible for another attorney to do claims repair and the matter goes away.

If you don’t have a malpractice insurance policy, don’t try to act as your own advocate.  The conflict issues that come into play can get messy fast and your professional judgment is clouded.  Hire a lawyer who has experience in defending lawyers then step into the shoes of a client and stay there!  I know it can be hard to take the lawyer hat off; but this is the one time where you really can’t afford not to.

I do understand how the lawyer in my story above felt.  He wasn’t a bad guy. In his mind, he really was trying to right the wrong.  He just lost sight of what truly mattered. Anyone can make a mistake.  It happens. However, should it ever happen to you, think about my story and remember that what really matters, what people will end up remembering, is not the misstep itself but what you did or didn’t do in response. Again, be the professional you are.