Recently, the legal malpractice industry has seen an uptick in claims filed against defense attorneys. Some of these claims are of high severity, resulting in seven figure settlements or verdicts.
What is responsible for this new development and how can defense attorneys guard against it?
Why Claims Against Defense Attorneys are Increasing
Traditionally, defense work supported by institutional clients drew relatively few malpractice claims. Institutional clients were simply not inclined to file malpractice claims against their attorneys. For years, such clients placed a high level of importance on loyal partnerships, and legal mistakes were simply folded into the cost of doing business. At times, the relationship that the law firm and the client shared spanned years so that the client would hesitate to sue an attorney who was so familiar with their business.
Now, the legal industry, much like the rest of society, is becoming more transactional in nature. Communication generally takes place behind a computer screen. Institutional clients focus on their bottom line, and relationship building is not as important. Lawyers are now surprised and disappointed to find that some clients are moving their business for marginally less expensive billing rates or cutting their time or staffing allowance.
Institution clients are now hiring employees who are lawyers by trade or maintain their own legal departments to oversee outside counsel. Consequently, they have better access to information than at any other previous time in history and are more inclined to question legal strategy, work and trial results.
As corporate clients are more inclined to question results, more claims and lawsuits are brought against defense firms. Moreover, insurance company clients, depending upon the state, are now able to maintain these lawsuits even in the absence of strict privity. See,Sentry Select Ins. Co. v. Maybank Law Firm, LLC, —S.E2d—, 2018 WL 2423694 (S.C. 2018)
Unfortunately, law firms can no longer count on loyalty as a guarantee against a malpractice claim or lawsuit. Proactive risk management, however, can help in avoiding, or at least reducing, the chance of a professional liability claim.
Risk Management Steps to Prevent Claims Against Defense Attorneys
Defense attorneys may deliver excellent results, but if the individual to whom that attorney reports is already frustrated or angry due to lack of communication, good results may simply not be enough to make up for their frustration. Consequently, defense attorneys may not receive a second assignment, or if the attorney ever makes a mistake, there may be insufficient goodwill to ward off a claim.
Open lines of communication with these tips:
- Decide on a collective win, factor in the necessary time and expense and then document the plan. Remember—a defense attorney’s win may differ from a client’s win after discussing time, expense and likely consequences.
- Analyze potential trial results as early in the life of the file as possible. If there are missing pieces of information, identify them. No client wants to be surprised in a trial report by a recommended settlement number or potential verdict analysis never previously discussed. Likewise, no client wants to learn that the settlement value of a claim is a tenth of incurred defense costs.
- Never guarantee results. A client will make the ultimate decision regarding whether to proceed to trial on any given case. The attorney, however, often knows the unpredictable nature of a jury trial. Motions are granted, witnesses fail to appear, juries have preconceived notions of fairness and judges overrule good objections. While an experienced trial attorney should be able to provide a generally accurate verdict range, the client should also understand that a trial result is never guaranteed.
- Be responsive. Returning telephone calls and reporting in a timely manner can make all the difference to some clients. Consistency can sometimes trump brilliance. Indeed, the second the client picks up the telephone for a status update, it is too late for a timely report. Moreover, if the client calls repeatedly with no return telephone calls, the attorney may have already lost support from that client.
- Proactively notify a client if you will be out of the office for any length of time and use an automatic email reply. While everyone should be able to take a vacation or go on trial, let your clients know that you are out of the office and not ignoring them. Provide them information regarding when you will be back in the office and available again to respond.
- Provide the client with an alternative contact. Many partners are transparent about the identity of the associate with the most knowledge on certain files. Other attorneys are more reluctant to encourage client contact with their associates even when (or especially when) the associate is more conversant on certain issues. The client will always figure out who knows the file best. Allow them access to good people.
- Report to your client after every major development on the file, especially if the evaluation of the file changes. Ideally, any significant change in the evaluation would be conveyed with a telephone call followed by thoughtful correspondence.
- Keep advancing the ball. No client wants to read a lengthy update with no conclusion or analysis. Rambling deposition summaries with no analysis will really frustrate a client.
- Never condescend a client. Spend some time listening to the client before you start talking. They may know more about an issue or defense than you do right out of the gate. Many clients face the same issues repeatedly.
- Schedule time to spend with your client. It is hard to emphasize the positive impact a meaningful face-to-face meeting can have on a relationship. Clients really appreciate the effort, and it is always good to put a name with a face.
- Never send a bill without an update. No client wants to review a bill only to first learn about a substantive motion hearing, deposition or contract review of which they have no knowledge. Billing entries should never surprise a client. Moreover, never send a bill if you owe the client a telephone call.
- Document, document, document. Defense attorneys who report to corporate clients may be less likely to document files on a routine basis. Documenting the file, however, does not have to entail writing endless formal or lengthy letters. A simple email may suffice.
Ultimately, communication skills are never overrated. Humans are still making the decisions for their respective institutional employers, including whether to file a malpractice action or not.
Keeping the lines of communication open with your client may be the most important feature in establishing a strong and loyal relationship. Effective communication may also lessen the possibility of a legal malpractice claim and help to maintain business relationships.
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 Corporate Solutions 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 obtaining such advice. Insurance products underwritten by Westport Insurance Corporation, a member of the Swiss Re Group. Copyright 2018 Swiss Re Corporate Solutions.