For a lawyer, there is nothing worse than the gnawing feeling something at the office is not quite right. Why hasn’t my client returned my phone calls? Did I file that brief on time? Why is my client late paying their bill?

It is inevitable that you will make a professional mistake at some point during your career. Once you realize an error has been made, the actions you take can repair or aggravate the situation.

Prevent Malpractice Claims

Avoiding errors is obviously ideal. Studying the sources and trends in legal malpractice claims can help limit exposure. You should also take proactive risk management steps.

Risk management training and education services can help avoid claims. However, these courses can be costly, especially for smaller firms or attorneys starting their own practices.

It may be beneficial to look for a malpractice insurance carrier that offers complimentary risk management services, such as CLE courses, best practice tips or even a risk management hotline. These services can generate substantial savings now and later, as they may provide the answers that avoids a large claim. 

What NOT To Do if a Malpractice Claim is Pending

The thought of facing a legal malpractice claim is daunting enough, but the uneasiness of what to do next can be just as unnerving. Unfortunately, many attorneys take a course of action that makes mistakes worse.

While most attorneys will try to remedy an error, some choose to ignore the problem, hoping it will just go away. Concern over the cost of defending a claim or unfamiliarity with policy coverage can lead to a “wait and see” approach.

If an attorney waits until a formal claim or lawsuit is filed before involving their legal malpractice insurer, they are doing themselves a disservice. Often, there is coverage for the defense of disciplinary proceedings. The carrier may also offer pre-claim assistance, which can potentially minimize or avoid a lawsuit altogether.

Even worse than ignoring an error is attempting to conceal it. Concealment is ethically wrong and may create a conflict of interest between the lawyer and the client.

What to Do if a Malpractice Claim is Pending

When a mistake is identified, the best approach is to immediately advise the client and the carrier.

Advising of a mistake is very different from admitting malpractice has occurred. When attorneys are upfront and honest about an error, clients are more inclined to be understanding. Realistically, clients will likely look for compensation if they are damaged. Therefore, notifying the carrier early on is crucial, too.

If a legal malpractice suit is filed, provide the client with the carrier’s information and then let the carrier handle the matter. As an attorney, you may think you are the best person to defend yourself, but it is difficult to be objective about your work.

An experienced professional liability claim handler understands what a viable legal malpractice claim is and the many reasons why clients threaten legal malpractice claims.

Malpractice Claims in Summary

No attorney wants to be in the position where their judgement or reputation is questioned. Follow these tips to set yourself and your firm up for success:

  • Know how to avoid a claim
  • Know where to turn in the event of a claim
  • Have proper risk management protocols in place
  • Partner with the right insurance provider and carrier
  • Understand the benefits of early notification

Your legal malpractice provider and carrier should be viewed as experts and allies. Do not think of them as a “fixer,” only to be consulted in times of crisis. Think of them as a trusted advisor to lean upon for professional, expert advice guided by your best interests.


2019 Copyright Swiss Re Corporate Solutions. This article is intended to be used for general informational purposes only and is not to be relied upon or used for any particular purpose.  Swiss Re shall not be held responsible in any way for, and specifically disclaims any liability arising out of or in any way connected to, reliance on or use of any of the information contained or referenced in this article.  The information contained or referenced in this article is not intended to constitute and should not be considered legal, accounting or professional advice, nor shall it serve as a substitute for the recipient.