LEGAL MALPRACTICE AND THE CIVIL DEFENSE LAWYER: PAST TRENDS, PRESENT CONDITIONS

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1 LEGAL MALPRACTICE AND THE CIVIL DEFENSE LAWYER: PAST TRENDS, PRESENT CONDITIONS AND FUTURE AVOIDANCE Allison O. Van Laningham * When one thinks about who is likely to be a legal malpractice defendant, several categories might spring to mind: plaintiff s lawyers; real estate lawyers; bad lawyers. Conventional wisdom and survey results have supported that response. Plaintiff s lawyers get sued when they miss a statute of limitations. Real estate lawyers get sued over title searches or failure to extinguish prior property liens. Bad lawyers are sued because, well, they are bad lawyers. Absent from the listing is the category of civil defense lawyers. Although members of that group have traditionally not been noted as frequent defendants in legal malpractice actions, the landscape may be changing. With the proliferation of malpractice suits in general, 1 civil defense lawyers increasingly are targets of * Allison O. Van Laningham is a partner at Smith Moore LLP in Greensboro, North Carolina. Her practice is focused on complex civil litigation and appeals, including legal malpractice defense. 1 Paul E. Kovacs & Craig G. Moore, Legal Malpractice Claims, Avoidance and Defense: If an Attorney Who Represents Himself has a Fool for a Client, Who are You Representing?, 61 J. MO. B. 142, 142 (2005) ( Each year, more than 20 percent of attorneys in private practice are faced with the potential of having to defend against a legal malpractice claim. ); Manuel R. Ramos, Legal Malpractice: The Profession s Dirty Little Secret, 47 VAND. L. REV. 1657, 1661 (1994) ( Since 1970 there has been an unprecedented growth in legal malpractice claims and lawsuits. ). In their treatise, Ronald E. Mallen and Jeffrey M. Smith report: In the 1980s, the number of reported decisions tripled over the prior decade. The trend of decisions in the 1990s continued, showing approximately a 155% increase over the prior decade. 1 RONALD E. MALLEN & JEFFREY M. SMITH, LEGAL MALPRACTICE 1:6 (1st ed. 2008).

2 legal malpractice actions. This is true even for lawyers who do not also fall into the bad lawyer category. In today s environment, very good lawyers handling complex legal matters are increasingly more likely to find themselves on the receiving end of a legal malpractice claim. This paper will examine some trends regarding malpractice actions and allegations against civil defense lawyers and also outline some best practices to avoid and respond to malpractice issues. THE PAST It is often noted that it is difficult to get accurate information about legal malpractice claims. 2 First, and perhaps even more than other kinds of disputes, many malpractice claims are settled or never become lawsuits. 3 Second, legal malpractice insurers are often the source of malpractice information, a fact that could cause some misleading conclusions. 4 The insurer s ability to provide information will necessarily be based on the lawyers it insures, who may disproportionately fall into certain categories, especially if there is no state 2 MALLEN & SMITH, supra note 1, at 1:6 ( The availability of statistics on current claim frequency and severity is scarce. Insurance companies tend not to publish their data. ); Manual R. Ramos, Legal Malpractice: No Lawyer or Client is Safe, 47 FLA. L. REV. 1, 5, (1995). 3 In their statistical analysis Ronald E. Mallen and Jeffrey M. Smith note that they only use reported decisions. However that analysis has its own limitations: Most decisions are by appellate courts, usually from one to ten years after the claim was first litigated. There are few published trial court decisions, and those are by federal district courts, federal bankruptcy courts and a few state trial courts. Even those decisions typically reflect a disposition a few years of the claim being made against the lawyer. MALLEN & SMITH, supra note 1, at 1:6. 4 Ramos, supra note 2, at

3 requirement to maintain malpractice insurance. In addition, many potential claims may be reported to an insurer that never actually bloom into malpractice actions. If the insurer includes all such claims in any statistical reporting, the conclusions drawn from such reporting could be skewed. The American Bar Association survey is often cited as the most comprehensive information available. 5 The 1986 findings confirmed that plaintiff s personal injury accounted for twenty-five percent of all malpractice cases while real estate accounted for another twenty-three percent, by far the largest categories. 6 Other efforts to develop malpractice statistics likewise concluded that plaintiff s personal injury and real estate are fertile grounds for malpractice claims. 7 THE PRESENT Although it is still true that plaintiff s personal injury and real estate claims, to the extent that the statistics are accurate, are the subject of a majority of malpractice claims, claims in other areas like civil defense may be on the rise. In 5 The ABA project was the first nationwide effort to collect date on legal malpractice claims. MALLEN & SMITH, supra note 1, at 1:7. 6 Profile of Legal Malpractice: A Statistical Study of Determinative Characteristics of Claims Asserted Against Attorneys (ABA May 1986). The remaining categories of malpractice claims are collection/bankruptcy (10 %); family law (8%); estates, trusts and probate (7%); other (16%), personal injury (defendant) (3%); criminal law (3%) and corporate and business organizations (5%). 7 See MALLEN & SMITH, supra note 1, at 1:7 n.4 (noting a 1994 Oregon study that found personal injury and real estate to top the list of malpractice claims with 16% each and a report in 1997 showing personal injury at 17.5% with real estate adding another 13.5%). 3

4 more recent statistical information, for instance, claims against plaintiff s personal injury lawyers have remained static or fallen while claims against defense lawyers in the same category almost doubled. 8 Claims against defense lawyers in general have risen and now constitute as much at ten percent of all claims, a sharp rise from the almost statistically insignificant percentage of just a decade ago. There are many different theories as to why malpractice claims against defense lawyers may be on the rise. One explanation is the rise of litigation in general 9 coupled with an increasing willingness of lawyers to pursue claims against other lawyers. Another is the expansion of the potential pool of malpractice plaintiffs to include a variety of third-parties allegedly aggrieved by the lawyer s actions. 10 The decline in courtesy and civility in the bar and the increasing pressure of the business environment on both lawyers and clients may also 8 In the 1986 ABA study, personal injury (defense) accounted for only 3% of claims while personal injury (plaintiff) accounted for 25% of claims. Profile of Legal Malpractice, supra note 6. The ABA subsequently conducted another study that compared claims reported from 1995 to 1999 with those reported from 2000 to See Siobhan Morrissey, Malpractice Claims Rise for Personal Injury Defenders, 4 No. 42 ABA J. E-Reports 4, 4 (2005). Claims against personal injury defense lawyers rose from 5.86 percent of reported claims in to 9.96 percent of reported claims in Id. During the same period, claims against plaintiff s personal injury lawyers fell by a third. Id. 9 See MALLEN & SMITH, supra note 1, at 1:6 ( The change in frequency of actions against attorneys must be viewed in the context of similar increases in other areas of litigation, such as product liability and medical malpractice. Thus the explanation for the increase of legal malpractice litigation is similarly intertwined with numerous sociological factors that defy generalizations. ). 10 George S. Mehaffey, Jr., All for One and One for All? Legal Malpractice Arising from Joint Defense Consortiums and Agreements, the Final Frontier in Professional Liability, 35 ARIZ. ST. L.J. 21, 21 (2003). 4

5 contribute to increased claims by civil defendants against their lawyers. Cost cutting measures by clients may create pressure on lawyers to spend less time on matters or to cut corners. 11 Whatever the reason, though, there is little doubt that civil defense lawyers are increasingly becoming defendants themselves. The Origins of Claims Claims against defense lawyers arise from a wide variety of circumstances, ranging from the mundane to the extraordinary. A malpractice claim in general is negligence-based and usually involves (1) an attorney-client relationship; (2) a breach of the standard of care; (3) proximate cause; and (4) damages. There are instances when third parties have been able to bring claims against lawyers, like estate beneficiaries and insurers as part of the tripartite relationship, even in the absence of an attorney-client relationship. Deadlines. Like statutes of limitations in the plaintiff s world, missed deadlines in the defense world are a ripe area for malpractice allegations. From failing to file an answer on time resulting in default to failing to respond to discovery or a court order resulting in sanctions or the striking of defenses, missed deadlines can become an easy target for negligence claims. In part, this basis for claims may be prolific because it is easy to understand the duty and easy to prove 11 Morrissey, supra note 8, at 4. 5

6 the breach: There was an important and known deadline, the lawyer missed it and the client suffered. Failure to Settle. A settlement opportunity that may not seem inviting today might look a lot different, especially to the client, in the wake of a jury verdict for a much larger amount. If the client thinks that the lawyer failed to properly analyze or convey the risks in the case, thus causing the client to reject a settlement opportunity or recognize that settlement would be the best outcome, the client may allege that the lawyer was negligent in her duties. 12 Hindsight is a benefit for the claimant in such cases. Although the lawyer will argue that he used his best judgment in counseling the client regarding settlement and did not breach the standard of care, the client, now a malpractice claimant, has the benefit of pointing to a large verdict to try to prove a breach. In addition, while an exercise of the lawyer s judgment should not lead to a successful malpractice claim, 13 if the lawyer provides mistaken legal analysis, that error could be negligence. For instance, if a lawyer during settlement negotiations provides bad legal information about contribution, joint and several liability, or other principles affecting apportionment of liability among defendants and the client makes settlement decisions on that basis, the client is more likely to be able to prove malpractice 12 Joyce K. Baker-Selesky, Negligence in Failing to Settle Lawsuits: Malpractice Actions and Their Defenses, 20 J. LEGAL PROF. 191 ( ). 13 J. Mark Cooney, Benching the Monday-Morning Quarterback: The Attorney Judgment Defense to Legal-Malpractice Claims, 52 WAYNE L. REV (2006). 6

7 than if the decision was based on the pure exercise of the lawyer s judgment, which turned out in hindsight to have been a poor predictor of the outcome. A related and likely worse category is the failure to communicate settlement offers. In the wake of a large judgment, the client learns that the plaintiff would have accepted much less and conveyed that message to the defense lawyer. The defense lawyer, however, failed to pass the information along to the client or failed to pass it along in a timely manner. Such a failure, in addition to potentially causing a malpractice issue, would likely also violate the professional conduct rules in the lawyer s jurisdiction. 14 If the judgment is in excess of an insurance policy limit while the settlement offer was within that limit, the prospect of a malpractice action against the lawyer is even greater. Poor Management of Expectations/Poor Communication. It is important to let the client know early and often of the risks associated with the case. As new information is developed, the lawyer should update her risk analysis and keep the client informed. It is also important to generally communicate with the client about case developments and status. A client who learns about bad evidence for the first time during a trial or feels blindsided by a large verdict is much more likely to be dissatisfied with legal counsel and to blame counsel and her poor 14 For instance, Rule 1.4 of the ABA Model Rules of Professional Conduct provides that the lawyer has a duty to keep the client informed about the matter and to explain matters sufficiently to allow the client to make informed decisions. 7

8 communication for a bad outcome or a loss of opportunity to manage the case differently and perhaps mitigate the damage. Lack of Knowledge or Preparation. In the era of specialization, a client dealing with a bad outcome may decide that his lawyer had no business agreeing to take on the case in the first place. If the substantive area of law is highly specialized and the lawyer has little experience in that area, the client may allege that the lawyer breached the duty of care by taking on the representation or by failing to at least associate another lawyer with the substantive expertise. Such an allegation also brings the ethical duty of competence into the picture. If the lawyer has breached that ethical duty by agreeing to a representation as to which she does not have the requisite level of competence, it is more difficult to argue against a breach of the standard of care for malpractice. On the flip side, the malpractice plaintiff has the added ammunition of an ethical breach to add to her negligence arguments. Coupled with the lack of substantive knowledge is the potential allegation of poor preparation or staffing. Imagine a case when some of the best evidence for the defense is information that was posted on the internet. During discovery, the lawyer prints out the information and produces it to the other side. By the time of trial, the information no longer exists in its original internet form. During the presentation of the defense, the plaintiff objects to the introduction of the lawyer s 8

9 printouts and disputes their authenticity. Checking the law, the defense lawyer discovers that, if the information is no longer available on the internet, he would need to present a witness who viewed the information on the internet and printed it out to testify that the printouts are true reflections of what the witness viewed on the internet on a particular date. The lawyer has a problem. Since he was the only person who both viewed and printed the original information, he is the only person who can authenticate the printouts. Because he cannot ethically be both a witness and a lawyer in the case, he must either forego the evidence or the continued representation, neither of which is a good outcome for the client in the middle of a trial. The lawyer s lack of trial preparation, even at an early stage, has negatively impacted the client s case and potentially opened the door to a malpractice claim. There are many ways that such an allegation can arise, from development of evidence to failure to timely subpoena a witness. The true danger is that most of them could seem unimportant at the time of the lawyer s original action. In the example above, it may not occur to a lawyer printing information from the internet that, without getting a third party to view a website and print the information, the lawyer has made himself the only witness for authentication. Similarly, a lawyer preparing for trial may not consider that an important third-party witness might be planning an out-of-town trip and, in the absence of a timely subpoena or notice to the trial court of the witness s schedule, the client s case may be deprived of 9

10 crucial evidence. Still, a litigator is charged with preparing the case for trial from the first moments of her representation. It may not be meaningful to the client or to a jury in the malpractice case that the mistake, although easily avoided with proper trial preparation, is one that any lawyer could have made. Actions by an Insurer. Many insurance defense lawyers can find managing the tripartite relationship with the insured and the insurer a challenge. An added challenge may now be the potential of a malpractice action by the insurer following a bad outcome. Most states allow some form of negligence claim by an insurer against the lawyer who represented the insured and, in recent years, there are more instances of insurers trying to take advantage of that fact. 15 The theories that insurers have pursued mainly fall into four categories. 16 One theory is that there is an attorney-client relationship between the lawyer and the insurer by virtue of the tripartite relationship. 17 Another is that the insurer is a third-party beneficiary of the attorney s underlying representation of the insured. 18 Some insurers have pursued the insurer s lawyer under an equitable subrogation theory, arguing that it indemnified the insured and thus is subrogated to the 15 William H. Black & Sean O. Mahoney, Legal Bases for Claims by Liability Insurers Against Defense Counsel for Malpractice, 35-WTR BRIEF 33, 33 (2006). 16 Id. 17 Id. at Id. at

11 insured s rights. 19 Finally, the Restatement (Third) of the Law Governing Lawyers provides that a lawyer designated by the insurer to defend an insured owed a duty of care to the insurer with respect to matters as to which the interests of the insurer and the insured are not in conflict. 20 Each of these theories has been pursued with varying degrees of success depending on the jurisdiction. 21 It is pretty clear, however, that an insurer could likely find a theory under which the courts will allow it to pursue a claim against its insured s lawyer. Joint Defense Agreements. Another emerging theory for malpractice claims involving defense lawyers comes from joint defense agreements. 22 When multiple defendants are aligned in their positions and decide to cooperate in the defense of a case, their lawyers often execute a joint defense agreement in, among other things, an effort to make sure that information exchanged between the defendants and their counsel is confidential and protected. When, under such a relationship, one lawyer acting in a way that affects all defendants makes a mistake, the non-client defendants may pursue a claim, arguing that the lawyer owed them a duty under the joint defense agreement. 23 Some courts considering the issue of an attorneyclient relationship arising from a joint defense arrangement have found such a 19 Id. at Id. at Id. at Mehaffey, supra note 10, at Id. 11

12 relationship to exist. 24 In such a circumstance, an attorney would not only need to guard against malpractice claims by his own client but also by the other parties to the joint defense agreement. IN THE FUTURE Even though malpractice actions against defense lawyers are seemingly on the rise, there are steps that attorneys can take to minimize the risks of such claims. Being aware of the past status of malpractice actions and the present trends can help the lawyer make a plan for a future free of malpractice claims. Avoiding a Claim Client and Case Selection. A lawyer is not required to undertake a representation; rather, it is a matter of choice. Making wise choices in client selection may limit potential malpractice claims down the road. 25 There may be early warning signs, such as a client that has frequently switched counsel or has unrealistic expectations. If the client s litigation purpose is for vengeance or if it is 24 Id. at Mehaffey cites Wilson P. Abraham Construction Corp. v. Armco Steel Corp., 559 F.2d 250 (5th Cir. 1977), in which the court determined that an attorney s prior participation in a joint defense agreement created a sufficient relationship with another defendant-participant in the agreement to disqualify the attorney in a subsequent case. In City of Kalamazoo v. Michigan Disposal Service Corp., 125 F. Supp. 2d 219 (W.D. Mich. 2000), the court considered a similar argument and concluded that even where counsel are acting in a joint defense situation on behalf of their own clients, the circumstances of that representation may create an implied attorney-client relationship with co-defendants. Id. at 234 (internal citations omitted). 25 Mark S. Silver, Avoiding Legal Malpractice Claims: Knowing How to Interact with and Appease the Demanding or Dissatisfied Client, 31-FEB CHAMPION 18 (2007). 12

13 a too-frequent litigant, the lawyer may want to think about whether or not to take on the client. The same can be true of case selection. The case may deal with a subject matter with which the lawyer is not very familiar. The case may call for emergency work on a timeframe that is unworkable for the lawyer or staffing that the lawyer cannot provide. If the lawyer has concerns about her ability to respond to the requirements of the case, she may want to decline the case. Wise case and client selection at the outset may keep the lawyer from walking into an arrangement that is ripe for malpractice in the future. Be Clear About Client Identity and the Scope of the Relationship. The first prong of the typical malpractice claim is the existence of the attorney-client relationship. If the lawyer has been very clear about the identity of the client and what the scope of the representation will be at the outset, he may cut off potential claims of other persons or entities and claims about tasks that are beyond the scope of the representation. Imagine a case involving a declaratory judgment brought by potential beneficiaries of a trust. The issue in the action is whether creditors can reach the assets of the trust following the death of the trustor. A separate action is pending to determine other issues related to the estate. In the declaratory judgment action, the trial court determines that the estate can reach the assets of the trust to satisfy 13

14 the claims of creditors if the estate otherwise has insufficient assets to satisfy those claims. The estate hires a law firm to defend the appeal from the declaratory judgment action. In such a case, it may be important for the appellate lawyer to make clear that only the estate (and not any of the creditors) is her client and that she is only representing the estate with regard to the limited issues on appeal (and not with regard to any matters in the continuing estate action). Since the estate matter will continue during the declaratory judgment appeal and the two proceedings could have some issues in common, it is important for the appellate lawyer to make clear that she has no duties with regard to the estate proceeding. In addition, even though the interests of the estate and the creditors may be aligned for purposes of the appeal, the lawyer who clearly states that his attorney relationship is only with the estate and with no one else may limit the potential plaintiffs in a malpractice action to only that one entity. The same precaution should be taken when related entities exist and may have an interest in the matter but the lawyer only represents one of those entities. Employ Good Case Management Techniques, Including Redundancies. A lawyer who has put processes in place to track deadlines and other important case events minimizes malpractice risk. 26 To the extent there are redundancies in 26 For many good suggestions on managing a law practice to avoid malpractice, see Mark Bassingthwaighte, Keep Malpractice and Disciplinary Problems at Bay, 44-JAN TRIAL 34 (2008). 14

15 the structures that the lawyer has put in place such that the lawyer has more than one opportunity to be reminded of deadlines and events, the risk decreases further. Lawyers are busy and often find themselves up against a deadline. If the lawyer is able to complete as many tasks as far in advance of the deadline as possible, the lawyer again minimizes the risk of later malpractice problems. That is especially the case when the client needs to be involved in the preparation or review of documents. If the lawyer does not give the client a reasonably sufficient time to review a document or a production in advance of the deadline, the lawyer may begin to sow the seeds of client dissatisfaction. In the event of a bad result, the client will point to those events as evidence of the lawyer s inattention or lack of diligence. Even when a lawyer cannot get an item to a client far in advance, she should keep the client informed of the status by letting the client know that she is working on the matter, what the deadline is and when the client can expect to receive the work from the lawyer. Such communications if properly done will, if they become evidence in a malpractice case, help to show that, although the lawyer was busy, she was also aware of the issues in the client s case and was diligent and attentive to them. Keep the Client Informed. Especially in the age of , it takes less effort to keep the client informed of events important to his case than might have been 15

16 true in the past. Not every communication has to be a full and formal report letter in order to be appreciated by the client who may otherwise wonder what is happening in the matter. Keeping the client informed is not only ethically responsible, it also allows the client to understand the efforts that the lawyer is making on his behalf. Such information also gives the client the opportunity to spot issues (especially factual ones), which may be especially important if the issues could be addressed or mitigated at an early stage before becoming a bigger problem at a later stage. The lawyer also needs to manage the client s expectations and keep the client informed, in writing, of the risks in the case. Sending information about such risks is best done, when possible, in formal letters. During a malpractice case, the letter looks more official and it is harder for the client to argue that such communications were buried in a mass of or that the lawyer otherwise did not draw sufficient attention to the risks. A lawyer should never guarantee a result or even come close to such a promise, regardless of how convinced she is of the client s position. None of us can know what issues may arise or what a judge or jury might do with a case. To suggest otherwise is fodder for a disappointed client and a malpractice claim. It is, of course, vitally important for the lawyer to convey any settlement opportunities and certainly actual settlement offers. 16

17 Carefully Consider and Craft Joint Defense Agreements. Analyzing the cases that have considered the creation of duties and attorney-client relationships through joint defense agreements demonstrates that such agreements can but do not always result in the creation of such duties. Because that is the case, attorneys should be able to construct the agreement itself to minimize malpractice concerns. Among other things, the lawyers participating on behalf of their clients in a joint defense agreement should make sure that the agreement makes clear that each is operating only for the benefit of her client and should specifically provide that the agreement does not and is not intended to create an attorney-client relationship between the lawyers and the non-client defendants. 27 Courts have found that the exchange of confidential information is one key to the creation of an attorneyclient relationship under a joint defense agreement. 28 Thus, attorneys should be careful about the sharing of confidential information with non-clients, even when (and perhaps especially when) a joint defense agreement is in place. 29 Responding to a Claim If an issue is raised about a lawyer s services, there are some important things that a lawyer should do in response to the claim or threatened claim. 27 Mehaffey, supra note 10, at Id. 29 Id. 17

18 Notify the Insurance Carrier. If a lawyer has malpractice insurance, it is almost always the right answer to notify the insurance carrier when there is an indication of a possible claim. First, many policies require notice to both invoke coverage and to avoid a possible argument that coverage has been voided. Second, malpractice carriers usually have claims repair counsel who, if they get involved early, may be able to address the issue in a way that will avoid a malpractice claim. 30 Third, it takes the pressure off of the lawyer to try to manage and respond to an issue in which he is personally involved. Many lawyers are reticent to notify their carriers because of a fear that, even if the matter does not result in a claim or a lawsuit, the lawyer s insurance rates could increase as a result of the report. Policies differ, of course, but many malpractice policies and carriers provide that reports of possible claims do not impact the renewal or the rates analysis. 31 A lawyer can check her own policy or with her own carrier, but this fear may be unfounded and thus a poor reason to keep the malpractice carrier in the dark. Get Someone Else Involved. Even if a malpractice carrier is not involved, a lawyer should secure counsel or, at a minimum, advise his own firm so that he can benefit from the view and advice of someone not directly involved in the 30 Kovacs & Moore, supra note 1, at Id. at

19 underlying facts. In many instances, the best time to avoid a legal malpractice claim is when the specter of a possible claim first arises. While that is the case, avoidance is unlikely to happen unless someone other than the potential-defendant lawyer gets involved. In most instances, there is already some bad blood between the lawyer and the would-be claimant or at least a lack of trust. That fact makes the potential-defendant lawyer ill equipped to ameliorate the situation. In addition, a lawyer who becomes aware of a potential malpractice claim will experience a skyrocketing of stress and anxiety. Merely notifying a trusted advisor who can provide advice and assistance will often, in itself, provide the potential-defendant lawyer with some emotional relief. In addition, if the lawyer tries to address the issues herself, that fact may later be used as evidence against her in an effort to show that the lawyer had something to hide. Do Not Contact the Claimant About the Claim. When a lawyer becomes aware of a potential claim, she should refrain from contacting the potential claimant about the matter, especially without the involvement of the lawyer s own counsel. Such conversations almost always go badly. In addition, they are direct evidence that will almost certainly be used against the lawyer. The malpractice plaintiff will attempt to show that the lawyer recognized a problem and tried to talk the plaintiff out of suing, cover over the problem, or bully the plaintiff into compromising the claim. None of these pictures are positive during a malpractice 19

20 action. Jurors may already be inclined to think poorly about lawyers or the legal profession and may think that, as between the lawyer and the client, there is unequal bargaining power. If there is evidence from which they can conclude that the lawyer tried to capitalize on perceived superior bargaining power or position, the reaction may be negative, swift and strong. Maintain Documents and Materials. Once a lawyer is on notice of a claim, he should take great care to make sure that all materials from the representation or potentially related to the claim are preserved. Regardless of how familiar or unfamiliar he is with preservation requirements for litigation generally, the fact is that he likely will be charged with having perfect knowledge of the rules and requirements. Thus, any destruction, even if inadvertent, is even more likely to result in an adverse inference than it would be in another type of case. Be a Good Client. If a lawyer becomes the target of a malpractice allegation, she needs to become a good client. That means that she needs to be available to her lawyers and cooperative in their efforts. By the same token, however, she needs to let her lawyers handle the matter and resist the temptation to micro manage her own case. 32 It is almost equally destructive to the defense effort for the lawyer to be too involved as it is for the lawyer to hide from the 32 Christopher T. Borgenson, The Lawyer as Defendant: How to Best Aid in Your Own Defense, 3 No. 3 LEGAL MALPRACTICE REP. 3, 4 (1992). 20

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