13-2 Likelihood of Being Sued

• Jurisdiction: United States

13-2 Likelihood of Being Sued

For a variety of reasons, precise statistics regarding legal malpractice, both in Florida and nationally, do not exist. As one commentator has explained:

There will never be an accurate way to determine how many actual legal malpractice incidents go unnoticed, or unredressed, or are covered up. With so many uninsured lawyers, there is no way to systematically locate claims or even lawsuits against this group. Oregon, the only state with mandatory malpractice insurance, is also the only state where all malpractice insurance claims are documented. Oregon's annual frequency rate, and the probability that any lawyer will be the subject of a malpractice claim, has increased from 8.7% in 1988 to 13.2% in 1993. It would not be difficult to imagine rates of 20% or higher in other states such as California, Texas, or Florida, if all lawyers were insured.²

Quadrennially, the ABA's Standing Committee on Lawyers' Professional Liability releases a report entitled Profile of Legal Malpractice Claims. Because the report is based on information provided by insurers willing to participate and is not broken out by state, it provides, according to its compilers, "At best . . . an expansive, high-level view of the evolution of legal malpractice claims. . .

Even with its limitations, the report is the best evidence available regarding the incidence of legal malpractice. According to the most recent edition, five areas of practice account for two-thirds of all claims: personal injury—plaintiff (18.24%); real estate (14.89%); family law (13.51%); estate, probate, and trust (12.05%); and bankruptcy and collection (10.59%).⁴

The report also provides a snapshot of which practice settings generate the most claims. Sole practitioners (34.21%) and law firms with two to five attorneys (32.03%) are the most likely to be sued for legal malpractice; conversely, very large law firms (100 or more lawyers) are named as defendants just 9.46% of the time.⁵

Three types of lawyer activity are responsible for nearly two-thirds of all claims: preparation, filing, and transmittal of documents (32.66%); commencing an action or proceeding (16.76%); and advice (14.59%).⁶ On the low end are referrals and recommendations (0.65%); tax reporting (0.64%); and ex parte proceedings (0.52%).⁷ Categorized another way, substantive errors are at the heart of 53.82% legal malpractice claims, while administrative errors (23.15%), client relations (13.31%), and intentional wrongs...