Legal Malpractice and the Civil Defense Lawyer: Past Trends, Present Conditions and Future Avoidance

Transcription

1 Legal Malpractice and the Civil Defense Lawyer Legal Malpractice and the Civil Defense Lawyer: Past Trends, Present Conditions and Future Avoidance Allison O. Van Laningham In contemplating who is likely to be a legal malpractice defendant, conventional wisdom would place several types of lawyers at the top of the list: plaintiffs lawyers, real estate lawyers, and bad lawyers. Absent from the list are civil defense lawyers. Although members of that group have traditionally been infrequent defendants in legal malpractice actions, the landscape may be changing. With the proliferation of malpractice suits in general, 1 civil defense lawyers are increasingly targets of legal malpractice actions. In today s environment, even very good lawyers who handle complex legal matters are increasingly likely to find themselves on the receiving end of a legal malpractice claim. This article examines current trends in malpractice actions, explores common bases for claims, suggests best practices for avoiding claims, and offers strategies for effectively responding to malpractice claims. Submitted by the author on behalf of the FDCC Appellate Law Section. 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. Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice 1:6 (1st ed. 2008). 325

2 FDCC Quarterly/Summer 2009 Allison O. Van Laningham is a partner at Smith Moore Leatherwood LLP in Greensboro, North Carolina. Her practice is focused on complex civil litigation and appeals. She regularly handles cases in the areas of commercial litigation, products liability and legal malpractice defense. She also has an active First Amendment and media practice. Prior to joining Smith Moore, Ms. Van Laningham clerked for the Honorable N. Carlton Tilley, Jr. on the United States District Court for the Middle District of North Carolina in and for the Honorable Susan H. Black on the United States Court of Appeals for the Eleventh Circuit in She graduated from Wake Forest University School of law in 1996 cum laude and Order of the Coif. Ms. Van Laningham has been named by Law & Politics Magazine as a North Carolina Super Lawyer, Civil Litigation Defense (2006 to present) and as one of the Top 50 Women attorneys in North Carolina (2007, 2008). She is listed The Best Lawyers in America 2009 (Copyright 2007 by Woodward/White, Inc., of Aiken, S.C.), Appellate Law, First Amendment Law, Personal Injury Litigation, Product Liability Litigation. She has also been the recipient of the Triad Business Journal s 40 Leaders Under Forty award (2005), awarded to outstanding young business and community leaders in the Greensboro area. In addition to the FDCC, Ms. Van Laningham is a member of DRI, the Council of Appellate Lawyers, as well as DRI s Appellate Advocacy Committee. She serves in the leadership groups for both the Litigation Section and the Constitutional Rights and Responsibilities Section for the North Carolina Bar Association and is a member of the North Carolina Association of Defense Attorneys. I. Trends in Malpractice Actions Traditionally, plaintiffs personal injury has accounted for the majority of all malpractice cases, followed closely by real estate, at twenty-five and twenty-three percent, respectively. 2 Today, while it is still true that plaintiffs personal injury and real estate claims represent the majority of malpractice claims, claims in other areas, such as civil defense, appear to 2 Profile of Legal Malpractice: A Statistical Study of Determinative Characteristics of Claims Asserted Against Attorneys (ABA May 1986). See also 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 at 13.5%). 326

3 Legal Malpractice and the Civil Defense Lawyer be rising. For example, more recent American Bar Association data suggest claims against plaintiffs personal injury lawyers have remained static or fallen, while claims against defense lawyers in the same category have almost doubled. 3 Claims against defense lawyers in general have risen to constitute as much at ten percent of all claims, a sharp rise from the almost statistically insignificant percentage of just a decade ago. Theories abound as to why malpractice claims against defense lawyers may be rising. One explanation is the rise of litigation in general, 4 coupled with lawyers greater willingness to pursue claims against other lawyers. Another theory suggests that the potential pool of malpractice plaintiffs has expanded to include a variety of third parties allegedly aggrieved by the lawyer s actions. 5 The decline in courtesy and civility in the bar and the increasing pressure of the business environment on both lawyers and clients may also contribute to increased claims by civil defendants against their lawyers. Clients cost-cutting measures may pressure lawyers to spend less time on matters or to cut corners, giving rise to a greater number of claims as well. 6 Whatever the reason for the increase in malpractice claims, however, civil defense lawyers are facing a new environment in which becoming a defendant themselves is no longer as remote a possibility as may once have been the case. II. The Origins of Claims Claims against defense lawyers arise from a wide variety of circumstances, ranging from the mundane to the extraordinary, and are generally negligence-based, requiring an attorneyclient relationship; a breach of the standard of care; proximate cause; and damages. Even in the absence of an attorney-client relationship, third parties such as estate beneficiaries and insurers have been able to bring claims against lawyers as part of the tripartite relationship. The most common bases for malpractice claims are discussed below. 3 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 2. 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 plaintiffs personal injury lawyers fell by a third. Id. 4 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. ). 5 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). 6 Morrissey, supra note 3, at

4 FDCC Quarterly/Summer 2009 A. Missed deadlines Like statutes of limitations in the plaintiffs world, missed deadlines in the defense world are ripe for malpractice allegations. From a failure to file an answer on time that results in default, 7 to a failure to respond to discovery or a court order that ends in sanctions or the striking of defenses, missed deadlines are an easy target for negligence claims. In part, this basis for claims may be common because it is easy to understand the duty and easy to prove the breach: the lawyer missed an important and known deadline, and the client suffered as a result. B. Failure to Settle A settlement opportunity that may seem unattractive to the client today may look very different in the wake of a jury verdict for a much larger amount. If the client believes the lawyer failed to properly analyze or convey the risks in the case, leading the client to reject a settlement opportunity or to fail to recognize that settlement would be the best outcome, the client may allege that the lawyer was negligent in her duties. 8 Hindsight typically, though not always, benefits the claimant in such cases. 9 Although the lawyer will argue that she used her best judgment in counseling the client regarding settlement and did not breach the standard of care, the client as a malpractice claimant can point to a large verdict to try to prove a breach. In addition, while a lawyer s exercise of professional judgment should not lead to a successful malpractice claim, 10 the lawyer could be negligent for providing mistaken legal analysis. For example, 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 based on that information, the client is more likely to be able to prove malpractice than if the decision were based on the pure exercise of the lawyer s judgment, which in hindsight proved fallible. 7 See, e.g., Lifestar Response of Al., Inc. v. Admiral Ins. Co., No , 2009 WL (Ala. Feb. 6, 2009) (action against lawyer and insurer alleging malpractice and breach of duty following entry of default judgment). 8 Joyce K. Baker-Selesky, Negligence in Failing to Settle Lawsuits: Malpractice Actions and Their Defenses, 20 J. Legal Prof. 191 ( ). 9 See, e.g., McCluskey v. Gabor & Gabor, 876 N.Y.S.2d 162, 164 (App. Div. 2009), in which the plaintiff sued his lawyer claiming that his attorneys committed malpractice by failing to take an immediate appeal from an adverse decision. The appellate court determined that failure to take the appeal was not malpractice because the underlying causes of action were properly dismissed in the first instance. This is the essence of the case within a case rubric of proving or disproving a malpractice claim. 10 See, e.g., Biomet Inc. v. Finnegan Henderson LLP, 967 A.2d 662 (D.C. Cir. 2009) (noting that [i]t has long been recognized that an attorney is not liable for mistakes made in the honest exercise of professional judgment. ). See also, J. Mark Cooney, Benching the Monday-Morning Quarterback: The Attorney Judgment Defense to Legal-Malpractice Claims, 52 Wayne L. Rev (2006). 328

5 Legal Malpractice and the Civil Defense Lawyer A related basis for filing malpractice claims against civil defense lawyers is the failure to communicate settlement offers. Imagine the following scenario: in the wake of a large judgment, the client learns the plaintiff would have accepted much less, and had previously conveyed that message to the defense lawyer. The defense lawyer, however, failed to share information with the client, or did not do so in a timely manner. In addition to likely violating the professional conduct rules in the lawyer s jurisdiction, such a failure will potentially trigger a malpractice claim. 11 If the judgment exceeds an insurance policy limit, while the settlement offer was within that limit, the prospect of a malpractice action against the lawyer becomes even more likely. C. Poor Management of Expectations or Poor Communication A client who learns about bad evidence for the first time during a trial, or who feels blindsided by a large verdict, is much more likely to be dissatisfied with legal counsel and to blame counsel s poor communication for a bad outcome or a lost opportunity to manage the case differently, perhaps limiting the damage. Lawyers who fail to communicate to clients the risks associated with the case, or to keep clients informed with updated risk analyses as new information develops, place themselves at higher risk of malpractice claims. D. Lack of Knowledge or Preparation If the substantive area of law is highly specialized, and the lawyer has little relevant experience, a client stung by a bad outcome may allege that the lawyer breached the duty of care by taking on the representation or by failing to at least associate another lawyer who could provide the substantive expertise. Such an allegation also raises the question of whether the lawyer has breached the ethical duty of competence. If the lawyer has breached that duty by agreeing to a representation for which she lacks the requisite level of competence, she will have greater difficulty defending against a claim that she breached the standard of care. Inadequate preparation may contribute to a client s impression that his lawyer lacked the requisite substantive knowledge in a case. Imagine, for example, a case where some of the defense s best evidence is information 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 defense s presentation, the plaintiff disputes the authenticity of the lawyer s printouts. As the defense lawyer discovers after reviewing the law, if the information is no longer available on the Internet, he needs to present a witness who viewed the information on the Internet and printed it out 11 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. 329

6 FDCC Quarterly/Summer 2009 to attest that the printouts are true reflections of what the witness viewed on the Internet on a particular date. The lawyer clearly now 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 likely 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. 12 The lawyer s inadequate preparation or knowledge has negatively affected his client s case and has potentially opened the door to a malpractice claim. Allegations of lack of adequate preparation can arise from multiple circumstances, from development of evidence to failure to timely subpoena a witness. The unforeseen danger is that most of these circumstances may well seem unimportant at the time the lawyer originally acts. In the example above, it may not occur to a lawyer printing information from the Internet that, without having a third party view a website and print out 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 crucial evidence. Nonetheless, a litigator is charged with preparing a case for trial from the first moments of his representation. Neither clients nor a jury may be persuaded in a malpractice case that a mistake, although avoidable with proper trial preparation, is one that any lawyer could easily have made. E. Actions by an Insurer Many insurance defense lawyers can find it challenging to manage the tripartite relationship with the insured and the insurer. An added challenge may now be the potential for an insurer to file a malpractice action 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, insurers are increasingly taking advantage of that opportunity. 13 Insurers in these situations have generally pursued four theories to support their claims. 14 One theory posits that an attorney-client relationship exists between the lawyer and the insurer by virtue of the tripartite relationship. 15 A second theory insurers pursue is that the insurer is 12 A fortunate lawyer may be able to relocate the Internet information using an Internet archive and then have printouts from the archive authenticated by another person. The Librarians Internet Index lists a number of website archives. Librarians Internet Index, (last visited August 4, 2009). 13 William H. Black & Sean O. Mahoney, Legal Bases for Claims by Liability Insurers Against Defense Counsel for Malpractice, 35-WTR Brief 33, 33 (2006). 14 Id. 15 Id. at

7 Legal Malpractice and the Civil Defense Lawyer a third-party beneficiary of the attorney s underlying representation of the insured. 16 Third, some insurers have pursued the insurer s lawyer under an equitable subrogation theory, arguing that the insurer indemnified the insured and is thus subrogated to the insured s rights. 17 Finally, some courts have relied on the Restatement (Third) of the Law Governing Lawyers to conclude that a lawyer designated by an insurer to defend an insured owes 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. 18 Each theory has been pursued with varying degrees of success, depending on the jurisdiction; 19 however, it seems clear that an insurer is likely to find a theory under which the courts will allow a claim against the insured s lawyer. F. Joint Defense Agreements Joint defense agreements are another emerging basis for malpractice claims against defense lawyers. 20 When multiple defendants are aligned in their positions and cooperate in the defense of a case, their lawyers often execute a joint defense agreement to make sure information exchanged between the defendants and their counsel is confidential and protected. Under such a relationship, when one lawyer makes a mistake that affects all defendants, the non-client defendants may pursue a claim, arguing the lawyer owed them a duty under the joint defense agreement. 21 Potential conflicts between the clients may also provide fodder for a later claim: some courts have found an attorney-client relationship to arise from joint defense arrangements. 22 Under these arrangements an attorney thus needs to guard not only against malpractice claims by his own client, but also against those by the other parties to the joint defense agreement. 16 Id. at Id. at Id. at Id. at Mehaffey, supra note 5, at Id. 22 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). 331

8 FDCC Quarterly/Summer 2009 III. Taking Steps to Avoid Malpractice Claims Although malpractice actions against defense lawyers appear to be increasing, and varied circumstances can give rise to potential claims, attorneys can take several steps, discussed below, to minimize the risks of such claims. A. Select Clients and Cases Thoughtfully Making wise choices in client selection may limit potential malpractice claims down the road. 23 Early warning signs of potentially problematic clients include those who have frequently switched counsel and those who have unrealistic expectations. If the client is litigating for vengeance or is a too-frequent litigant, the lawyer should pause in considering whether to take on the client. The need for judicious selection applies equally to cases. For example, a case may deal with a subject matter unfamiliar to the lawyer, one that calls for emergency work on an infeasible timeframe, or one that requires staffing the lawyer cannot provide. If a lawyer is concerned about her ability to meet the case s requirements, she may consider declining the case. Ultimately, wise case and client selection at the outset may keep a lawyer from entering an arrangement ripe for malpractice claims in the future. B. Clearly Identify the Client and the Scope of the Relationship If a lawyer has been clear from the outset about the client s identity and the scope of the representation, he may cut off potential claims by other persons or entities and claims about tasks that are beyond the scope of the representation. 24 Consider, for example, a case involving a declaratory judgment brought by potential trust beneficiaries. The issue in the action is whether creditors can reach the trust s assets following the grantor s death. A separate action is pending to determine other issues related to the estate. In the declaratory judgment action, the trial court determines the estate can reach the trust s assets to satisfy creditor claims if the estate otherwise has insufficient assets. 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 clarify that the estate alone (and none of the creditors) is her client, and that she is representing the estate only regarding the limited issues on appeal (and not any matters in the continuing estate action). In addi- 23 See Mark S. Silver, Avoiding Legal Malpractice Claims: Knowing How to Interact with and Appease the Demanding or Dissatisfied Client, 31-FEB Champion 18 (2007). 24 See, e.g., Turner v. Irving Finkelstein & Meirowitz, LLP, 879 N.Y.S.2d 145 (App. Div. 2009) (finding that dismissal of malpractice claim that defendant failed to advise plaintiff about his other legal remedies was appropriate when the retainer letter clearly limited the attorney s scope of representation to plaintiff s workers compensation claim). 332

9 Legal Malpractice and the Civil Defense Lawyer tion, although the estate s and creditors interests may align for purposes of the appeal, the lawyer who clearly states that her attorney-client relationship is only with the estate and no one else may limit the potential plaintiffs in a malpractice action to just that entity. Both retainer letters and letters declining representations can be extremely important in defining the scope of the attorney-client relationship. A declination letter was critical, for example, to securing dismissal of a malpractice claim in Kehoe v. Saltarelli, 25 where the plaintiff was a lawyer who, with his former firm, had been sued in an underlying malpractice action. The former firm had hired the defendant to represent both the firm and the plaintiff in the underlying malpractice action. The plaintiff had initially rejected the representation but eventually agreed for the defendant to represent him under certain conditions. Although the defendant initially made statements the plaintiff relied on as evidence of the defendant s acceptance of the attorney-client relationship, the defendant later sent the plaintiff a letter stating that the conditions he imposed on the representation were unacceptable and that he would need to secure alternate representation. 26 Determining that the malpractice action was appropriately dismissed, the court noted, The attorney-client relationship is consensual and arises only where both attorney and the client have consented to the retention. A client must manifest his authorization for an attorney to act on his behalf and the attorney must indicate his acceptance of the authorization to represent the client s interests. 27 The court concluded no attorney-client relationship existed because the defendant declined to accept representation and clearly communicated that decision to the plaintiff. 28 To avoid creating affirmative duties that might not otherwise exist, the retainer letter must be carefully crafted. For instance, in Abramsom v. Wildman, 29 the client s malpractice action against his attorney was based, at least in part, on language in the retainer agreement that the client may expect our firm to be both sensitive and professionally responsible to your situation. 30 The court found this language in the retainer agreement to be an explicit promise on which a breach of contract malpractice action could be based N.E.2d 605 (Ill. Ct. App. 2003). 26 Id. at Id. at Id A.2d 703 (Md. Ct. App. 2009). 30 Id. at 711. It is interesting to note that the successful malpractice action was filed as a counterclaim in an action brought by the lawyer for unpaid legal fees, rather than as an original action by the client. 31 Id. 333

10 FDCC Quarterly/Summer 2009 C. Employ Good Case Management Techniques A lawyer who has established processes to track deadlines and other important case events minimizes malpractice risk. 32 Risk further decreases if the attorney builds redundancies into these processes, to generate multiple reminders of important deadlines and events. Lawyers often find themselves up against tight deadlines. Lawyers who complete as many tasks as possible well ahead of deadlines minimize the risk of creating future malpractice problems, particularly when clients need to be involved in preparing or reviewing documents. If a lawyer does not give a client reasonable time to review a document or a production request ahead of a deadline, the client will point to those events as evidence of the lawyer s inattention or lack of diligence if a bad result occurs. Even when a lawyer cannot get an item to a client well in advance, she should keep the client informed by letting the client know she is working on the matter, what the deadline is, and when the client can expect to receive the work. If such communications become evidence in a malpractice case, they will help demonstrate that, although the lawyer was busy, she was aware of the issues in the client s case and was diligent in attending to them. D. Keep the Client Informed and Manage Expectations In this age of , keeping the client informed about his case takes less effort than might have been true in the past. Not every communication need be a full and formal report letter to the client, who may otherwise wonder what is happening. Keeping the client informed is ethically responsible, allows the client to understand the efforts the lawyer is making on his behalf, and gives the client the opportunity to spot issues that may be especially important if they can be addressed or mitigated early. The lawyer also needs to manage the client s expectations and keep the client informed of the risks in the case. Conveying information about such risks is best accomplished through formal letters, which look more official in a malpractice case. These formal communications make it harder for the client to argue that important case information was buried in and help refute claims that the lawyer did not draw sufficient attention to the risks. A lawyer should never guarantee a result, regardless of how confident she is of the client s position. Because no one 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. 32 For helpful suggestions on managing a law practice to avoid malpractice, see Mark Bassingthwaighte, Keep Malpractice and Disciplinary Problems at Bay, 44-JAN Trial 34 (2008). 334

11 Legal Malpractice and the Civil Defense Lawyer E. Carefully Consider and Craft Joint Defense Agreements Because joint defense agreements can create attorney-client relationships, attorneys should construct the agreement itself to minimize malpractice concerns. Among other things, lawyers participating on behalf of their clients in a joint defense agreement should ensure the agreement clarifies that each attorney is acting for the benefit of only her client and specifically provides that the agreement does not and is not intended to create an attorney-client relationship between the lawyers and the non-client defendants. 33 Similarly, because courts have found that exchanging confidential information is one key to creating an attorney-client relationship under a joint defense agreement, 34 attorneys should be careful about sharing confidential information with non-clients, even when (and perhaps especially when) a joint defense agreement is in place. 35 IV. Responding Effectively to a Claim A lawyer should take several steps, discussed below, in response to a claim or threatened claim related to a lawyer s services. A. Notify the Insurance Carrier Three factors may compel a lawyer with malpractice insurance to inform the insurance carrier upon notice of a possible claim. First, many policies require notice to both invoke coverage and to avoid a possible argument that coverage has been voided. 36 Second, malpractice carriers usually have claims repair counsel who may be able to address an issue 33 Mehaffey, supra note 5, at Id. 35 Id. 36 For example, in a recent Minnesota case, the court found that malpractice coverage was voided because the lawyer was aware of a potential claim but did not notify his carrier nor provide the information when he renewed his policy. See Chapman v. Minn. Lawyer s Mut. Ins. Co., No. A , 2009 WL (Minn. Ct. App. June 30, 2009). In Chapman, the lawyer asserted that communications from a disgruntled client... do not rise to the level of a claim that needs to be reported to a legal malpractice carrier, in order to ensure continuing coverage, in case a claim is ultimately made. Id. at *3 (internal citations omitted). The court disagreed, concluding that the trial court did not err in determining that, under the language of his policy and the renewal form, the lawyer should have disclosed the potential claim to the insurer and that the lawyer s material misrepresentation voided coverage under his professional liability insurance policy. Id. at *6. 335

12 FDCC Quarterly/Summer 2009 to avoid a malpractice claim, if they are involved early. 37 Third, involving the insurer can relieve the lawyer of the pressure of trying to manage and respond to an issue in which he is personally involved. Many lawyers are reluctant to notify their carriers because they fear that, even if the matter does not result in a claim or a lawsuit, their insurance rates could increase as a result of the report. While policies differ, many malpractice policies and carriers provide that reports of possible claims do not affect renewal or rate analyses. 38 A lawyer should check her own policy or check with her carrier to address this concern to avoid unnecessarily keeping the carrier uninformed about, and thus unable to assist with, potential claims. B. 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 perspective and advice of someone not directly involved. Involving someone other than the potential defendant lawyer early on may be the best way to prevent a potential claim from being filed. In most instances, bad blood or a lack of trust already exists between the lawyer and the would-be claimant, ill-equipping the lawyer to ameliorate the situation himself. Merely attempting to address the issue himself may later be used as evidence to show the lawyer had something to hide. In addition, a lawyer who becomes aware of a potential malpractice claim will experience a high level of stress and anxiety. Notifying a trusted advisor who can provide advice and assistance will often, in itself, provide the potential defendant lawyer with some stress relief. C. 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 involving the lawyer s own counsel. Such conversations almost always go badly and 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 dissuade the plaintiff from suing, to cover over the problem, or to bully the plaintiff into compromising the claim. Jurors may already be inclined to think poorly about lawyers or the legal profession; if there is evidence from which they can conclude the lawyer tried to capitalize on perceived superior bargaining power or position, the reaction may be negative, swift and strong. 37 Kovacs & Moore, supra note 1, at Id. at

13 Legal Malpractice and the Civil Defense Lawyer D. Maintain Documents and Materials Once a lawyer is on notice of a claim, he should take great care to preserve all materials from the representation or potentially related to the claim. Regardless of how familiar a lawyer is with preservation requirements for litigation generally, he will likely be charged with having perfect knowledge of the rules and requirements. Thus, any destruction, even if inadvertent, is even more likely to prompt an adverse inference than it would in another type of case. E. Be a Good Client A lawyer targeted by a malpractice allegation needs to become a good client, available to her lawyers and cooperative in their efforts. Yet 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 case and not be involved at all. The lawyer needs to let her counsel handle the matter, resisting the temptation to micro-manage her own case. 39 It is an ideal time for the lawyer to become the kind of client she would want to represent. V. Conclusion Although malpractice claims against civil defense lawyers do not comprise the greatest percentage of malpractice cases, they are on the rise. Some indications are that such claims have doubled since the 1990s. By being aware of this trend and of the common bases for malpractice claims, defense lawyers can adopt best practices to minimize the risk of such claims and can take simple steps to respond more effectively should they become defendants in a malpractice case. 39 Christopher T. Borgenson, The Lawyer as Defendant: How to Best Aid in Your Own Defense, 3 No. 3 Legal Malpractice Rep. 3, 4 (1992). 337

14 FDCC Quarterly/Summer