For lawyers, facing a pending malpractice claim is daunting, especially if you aren’t sure what you should and should not do next. Some attorneys can respond in ways that make matters worse. Yet considering all the available benefits of professional liability coverage, there’s no need to do yourself this disservice. Even though the situation can be unnerving, there are steps you can take to help minimize or avoid further damage.
DO: Be Proactive When You Discover an Error
It is inevitable that every attorney will make a professional mistake at some point in their career. The important thing is to understand that the actions you take upon discovering an error impact the outcome. A proper, proactive approach may determine whether the situation can be repaired or exacerbated.
DON’T: Wait to Involve Your Insurer
Unfortunately, many attorneys respond to mistakes with a “wait and see” approach that makes matters worse. While most attorneys will try to remedy an error, some will choose to ignore the problem, hoping it will just go away. Factors such as concern over the cost of defending a claim or an unfamiliarity with the policy coverage available can lead to this “wait and see” approach.
DO: Find Out What Coverage Is Available to You
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.
DON’T: Hide or Conceal Mistakes
While hiding from an error is harmful, some may attempt to conceal an error, which is even worse. Concealment is not only ethically wrong, it may also create a conflict of interest between the lawyer and the client. If a legal malpractice case is filed under these circumstances, there could be serious consequences.
DO: Advise the Client and Your Insurer Right Away
When a mistake is identified, the best approach is to advise the client and the carrier immediately. Advising of a mistake is very different from admitting that 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, so early notification to the carrier is crucial as well.
DON’T: Try to Defend Yourself Without Help
If a legal malpractice suit is filed, provide the client with the carrier’s information and then let the carrier handle the matter. An experienced professional liability claim handler not only understands what constitutes a viable legal malpractice claim, as well as the other reasons a client may threaten legal malpractice. While it’s understandable that you may want to defend yourself, it’s best for the defense to be steered by a professional liability claims team that specializes in this arena.
DO: Invest Time in Training to Help Avoid Claims
Avoiding errors is obviously ideal. Study the sources and trends in legal malpractice claims to help limit exposure, and take proactive risk management steps, such as training and educational services, to help avoid claims. Since some 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 avoid a large claim.
Conclusion
No attorney wants to be in the position where their judgement or reputation is questioned. Knowing how to avoid a claim and where to turn if a claim is filed is crucial. Having proper risk management protocols in place, partnering with the right carrier and understanding the benefits of early notification can help. Your legal malpractice carrier should be viewed as an expert and an ally. Don’t think of a legal malpractice insurance carrier as “the fixer,” only to be consulted in times of crisis. Think of them as a trusted advisor you can lean on for professional, expert advice guided by your best interests.
Information provided by Attorney Protective is not intended as legal advice. This publication provides best practices for use in connection with general circumstances, and ordinarily does not address specific situations. These best practices are not intended to meet or establish the standard of care, and sometimes recommend practices that exceed the standard of care. Specific situations should be discussed with legal counsel licensed in the appropriate jurisdiction. By publishing practice and risk prevention tips, Attorney Protective neither implies nor provides any guarantee that claims can be prevented by use of the suggested practices. Though the contents of Attorney Protective’s Best Practice Database have been carefully researched, Attorney Protective makes no warranty as to the accuracy, applicability or timeliness of the content. Anyone wishing to reproduce any part of the Attorney Protective Best Practices Database content must request permission from Attorney Protective by calling 877-728-8776 or sending an email to [email protected]. Additionally the rules cited in the contents of this article may have since changed. You should check the laws and model rules in your state for specific information on the topics addressed here.