The Defining Moment of a Malpractice Misstep

Over the past 27 years as a risk manager here at ALPS, I’ve had more conversations with attorneys and discussed more concerns than I will ever be able to recall. Of course, because I work for a legal malpractice insurer, it should come as no surprise that a number of the conversations I do remember were about malpractice missteps. Of these, some were driven by a desire to look for the learning, others were about trying to determine if a misstep had even occurred, and every once in a while, they were about a lawyer regretting not having appropriately dealt with the misstep that did occur.

One particularly memorable call that occurred earlier in my career came from a solo practitioner who was nearing retirement. He shared that his retirement years were to have been his best years yet given his financial success as a plaintiff personal injury attorney. I also came to learn that he was an esteemed member of the bar and had become something of a pillar in the community. In fact, his reputation for helping others and being of service to the community at large was above reproach, that is, until it all went horribly wrong. 

Two years or so before calling me, this lawyer was handling a personal injury matter. It was nothing out of the ordinary and one of hundreds upon hundreds of similar matters he had successfully resolved over the years. I never learned how the statute got blown on the file he was calling about because it really didn’t matter. What mattered was that it did and this lawyer just couldn’t manage to face the problem head on. He felt embarrassed and disappointed in himself. I imagined that he simply couldn’t stand to look at himself in the mirror. To make matters right, in his mind, he decided to “settle” the matter. He contacted the client and explained that an offer was on the table. While the amount wasn’t quite what he had hoped to obtain, it was a reasonable offer. The client was appreciative of his efforts and agreed to settle her claim for the amount offered. This lawyer then personally paid the “offered” amount out of his own funds and the file was closed. Problem solved.

Now, I’ll push the fast forward button and talk about his call to me. In short, his attempt to cover up the blown deadline eventually came to light and a malpractice claim was made shortly thereafter. Of course, due to the extremely late notice coupled with his past actions, (not the least of which included signing a warranty statement on an application to keep his malpractice insurance policy in force that stated he was not aware of any acts, errors or omissions that could reasonably be expected to give rise to a claim), not only was coverage denied but he also lost all prior acts coverage because his policy was rescinded. Now he would no longer have any malpractice insurance coverage for any of the work he had done over the course of his practice. And sadly, this wasn’t the end of it. A disciplinary complaint was also filed, a complaint which eventually led to the suspension of his license.

I wanted to share this story because it is an excellent example of how easily one misguided decision can change everything. This lawyer ended up having his retirement thrust upon him and what were to have been the best years yet began in shame and devastation.

With all this in mind, think about how you might have responded. What would you do should you ever realize that a serious misstep occurred on one of your files? As the guy on the other end of the line on these types of calls, here’s the best advice I have to offer. Remember that people are not defined by the circumstances in which they find themselves. They are defined by how they choose to respond to their circumstances. Stated another way, in response to a potential claim, be the professional you are and act accordingly.

Start by making a commitment to always remember the lesson from this story. Never ignore any potential misstep! Unlike fine wine, viable claims don’t age well. Next, find your malpractice policy and read through it. Don’t wait until a claim arises before you pick it up and see what it says. For example, how can you comply with your notice obligations if you don’t even know what those obligations are? Then, should a misstep ever occur, contact your carrier and provide a detailed written notice. This is not the time to be vague, to hide anything, to blame the client, or to worry about a potential rate increase. Also, never discuss the problem with your client until you’ve contacted your carrier. Most importantly, let the professionals who handle malpractice claims day in, and day out do their job. Finally, don’t let your ego get in the way. Cooperate, take their advice, and listen because sometimes it might even be possible for another lawyer to do claims repair and make the matter go away. 

If you happen to be uninsured, don’t try to act as your own advocate. The conflict issues that come into play can get messy fast and it’s just too easy for your professional judgment to become clouded. Hire a lawyer who has experience in defending lawyers and then step into the shoes of a client and stay there! I know it can be hard to take the lawyer hat off; but this is the one time when you really can’t afford not to.

I will close by saying that I do understand how the lawyer in the above story felt. In all honesty, he seemed like someone we’d all call a good guy. The problem was this. In his mind, he really was trying to right the wrong. He just lost sight of what truly mattered, which was accepting accountability for his misstep. Anyone can make a mistake. It happens. However, should it ever happen to you, think about this story, and remember what really matters. What people will end up remembering is not the misstep itself but what you did or didn’t do in response. Rise to the occasion, learn from the misstep, and be all the better for it.