Reduce the Risk of Malpractice Claims
| Publication year | 2015 |
| Pages | 99 |
Departments
Whoops—Legal Malpractice Prevention
Reduce the Risk of Malpractice Claims
By Randolph Evans, Shari L. Klevens, Lino S. Lipinsky.
This Department is sponsored by the CBA Lawyers' Professional Liability Committee to assist attorneys in preventing legal malpractice. For information about submitting a manuscript or topic suggestion, contact Andrew McLetchie— (303) 298-8603, a_mcletchie@fsf-law.com; or Reba Nance—(303) 824-5320, reban@cobar.org.
Authors' Note
Readers' comments and feedback on this series of "Whoops—Legal Malpractice Prevention" articles are welcomed and appreciated. References in the articles to "safest courses to proceed," "safest course," or "best practices" are not intended to suggest that the Colorado Rules require such actions. Often, best practices and safest courses involve more than just complying with the Rules. In practice, compliance with the Rules can and should avoid a finding of discipline in response to a grievance or a finding of liability in response to a malpractice claim. However, because most claims and grievances are meritless, effective risk management in the modern law practice involves much more. Hence, best practices and safer courses of action do more: they help prevent and more quickly defeat meritless claims and grievances.
Legal malpractice claims just keep coming. Rarely does a week go by without another article about a new high-profile legal malpractice lawsuit. Sometimes, these claims are the result of a simple mistake. Claims can arise when an attorney is overworked and may be tempted to pay less attention to the details of his practice. Yet most claims do not involve any mistake or error by the attorney. Well over one-half of all malpractice claims against attorneys lack any merit.[1]
While meritless claims are usually dismissed or abandoned, that's little comfort to attorneys who have had a claim brought against them. After all, when a claim is made, attorneys must deal with it, investing time to defend the claim, reporting it to colleagues and insurers, and paying whatever deductible might apply. Needless to say, it is a distraction from the practice of law.
Beyond that, claims leave a lasting impact. From the moment a legal malpractice claim is made, attorneys must answer "yes" to the question, "Has a claim ever been made against you?" This answer does not change even if the claim has been dismissed or abandoned.
The bad news is that most attorneys will face more than one claim over the course of their careers. The good news is that there are things attorneys can do to reduce the risk of having a legal malpractice claim made against them. An important first step is recognizing the difference between actual legal malpractice and a legal malpractice claim.
Legal malpractice occurs only when an attorney's breach of a professional duty proximately causes damages.[2] Anything involving less than all three elements—duty, breach, and proximately caused damages—is a claim but is not malpractice.[3] Moreover, in Colorado, unless it involves fraud or malice, with few exceptions, a legal malpractice claim must be based on the existence of an attorney-client relationship between the plaintiff and the defendant.[4]
Duty
Attorneys' duties are in a state of flux. Certainly, attorneys owe their clients a professional duty. More uncertain is the question of to whom, besides their clients, attorneys owe a duty. It is clear that attorneys do owe some duties beyond the duties to their clients.[5] For example, Rule 1.18(b) of the Colorado Rules of Professional Conduct states, "Even when no client-lawyer relationship exists, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation." Generally...
To continue reading
Request your trial