Any attorney could require a legal malpractice defense lawyer

Any attorney could find him or herself the object of a legal malpractice lawsuit; vigorous defense is key.

The risk that a disgruntled client will accuse his or her attorney of legal malpractice is part of practicing law. Still, finding him or herself the defendant in a professional malpractice lawsuit may be disconcerting at minimum, or maddening or terrifying, depending on the circumstances.

The right response is to get legal counsel immediately, often available through the legal malpractice insurance policy carried by the lawyer being sued. It can also be smart to consult an experienced legal malpractice attorney early on when you receive an informal complaint from a client about your service or the turn a legal matter has taken. Early grumbling can turn into a suit later.

But sometimes, an allegation of legal negligence can blindside an attorney who thought the matter had been handled satisfactorily and according to the client's wishes.

Law firm best practices

Every law firm needs to institute best practices that will diminish the likelihood that a client will have any basis to consider a malpractice lawsuit. The professional journals are full of valuable advice such as setting up a tickler system so that client matters are looked at on a regular bases and a calendar to prevent missing important deadlines, as well as communicating as much as possible with clients, and putting important advice in writing or at least memorializing it in the client's file. These are just the most obvious tips; many more exist.

Still, in the course of representation, if you are not sure of the answer to a professional ethics question or of the advice you should give a client, seek legal advice yourself so you can represent the client with confidence.

The latest American Bar Association study

The ABA Standing Committee on Lawyers' Professional Liability's most recent four-year study of malpractice claims was for the years 2008 to 2011 and detailed in the ABA Journal. According to the Journal, the top legal practice areas that experienced malpractice claims were:

  • Real estate: about 20 percent
  • Plaintiffs' personal injury: about 15 percent
  • Family law: about 12 percent
  • Estate, trust and probate: almost 11 percent
  • Collection and bankruptcy: about 9 percent

"Failure to know or properly apply the law" is the most common alleged attorney error in the suits looked at in the report. In the ABA Journal article, a national leader in professional liability insurance who served on the committee that produced the report notes that the high number of complaints in this area may be reflective of the economic downturn during that time span. He reports that lawyers often say they consistently take on stretch cases when they need the business.

Legal malpractice defense

The other thing to remember if you are sued for legal malpractice is that it is a significant claim to prove. For example, in New York, a claim for attorney malpractice requires the plaintiff to show that the lawyer did not use the care, skill and diligence an attorney normally would under the circumstances and that the failure to do so caused the harm complained of in the suit. To show causation, the former client must prove that without the attorney's alleged negligence, the client would have won the original suit being complained about or would not have suffered damage.

Remember, if you are accused of lawyer malpractice, report it to your legal malpractice insurer and get the representation of legal counsel skilled in this unique and serious area of law.

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