As an attorney, you should always be alert to the possibility of being sued—even when you haven’t made a mistake. Each year, a substantial proportion of attorneys face malpractice claims, and the average lawyer faces three such claims throughout a legal career.
However, losing a lawsuit isn’t the only threat you face when you have performed less than perfectly for a client. When you do make a mistake (and we all do at some point), it’s important to be proactive in protecting your assets, your practice, and your reputation.
Malpractice suits can be uphill battles for plaintiffs. Suits against attorneys most commonly arise out of claims of negligence, and these cases are not easy for plaintiffs to win. To prevail, the plaintiff must show that
1. The lawyer owed the plaintiff a duty of competent representation.
This part is usually easiest to prove, since agreeing to represent a client establishes this duty.
2. The lawyer breached that duty of care.
This is where it gets trickier for plaintiffs. Showing after the fact that a strategic decision or judgment call resulted in damage is not enough; to qualify as negligence, an attorney’s actions must fall below the standard of care for their profession. In other words, to be negligent, an attorney must act with a lower level of expertise or care than one can generally expect in a qualified attorney.
3. The breach of duty resulted in financial loss.
This can also be difficult for a plaintiff to prove. Even if an attorney was clearly negligent (e.g., missed a deadline), this will result in a malpractice verdict for the plaintiff only if they can show that they would have recovered damages in the original case.
So, while you should always be concerned with whether your actions could give rise to a lawsuit, you may rest a little easier knowing that losing a negligence case isn’t a typical outcome after an attorney makes an error.
Do tell you malpractice insurer.
While it may not be likely that you actually get sued, it’s still critically important that you communicate with your malpractice insurer so they can most effectively help you deal with whatever consequences may follow. Your insurance company employs legal malpractice experts who can help protect you from claims, but they can’t assist you with a problem they don’t know about. You may worry that alerting your insurer to a mistake will cause your rates to go up, but this is unlikely.
Your insurer can best protect its financial interests by providing help from the moment a potential claim arises, which means encouraging you to share this kind of information, not penalizing you for being forthcoming.
Joe Barnard, Director of National Programs for ProDefender, advises, “When considering what to report to your insurer, err on the side of oversharing. It’s in the insurer’s interest to provide you protection from the very beginning.”
Lawsuits aren’t your only concern.
When you’ve made a mistake, it’s much easier for a disgruntled client to file a complaint with the bar association or disciplinary board than to haul you into court. Filing a complaint is free, and it’s relatively quick and easy to do.
Professional complaints are more than just inconveniences; they can take considerable time and resources to defend, and losing can do serious harm to your reputation and career. Your professional liability policy likely provides assistance with defending against these types of claims as well; read your policy to be sure.
The legal malpractice experts at ProDefender want to help you protect your reputation and your livelihood. Click the link below to learn more or to reach out to us for a quote on a legal professional liability policy that fits your practice.