Whoops—Legal Malpractice Prevention, 0816 COBJ, Vol. 45, No. 8 Pg. 77
| Author | Randy Evans, Shari Klevens, Lino Lipinsky, J. |
You’ve Been Sued for Malpractice-Now What?
Randy Evans, Shari Klevens, Lino Lipinsky, J.
You’ve Been Sued for Malpractice-Now What?
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.
The risk that an attorney in private practice will face a malpractice claim has increased significantly over the last 50 years. Statistically, an attorney will be the subject of three claims over his or her legal career. [1] The increase in the number of practicing lawyers, increased consumerism, higher client expectations, better educated clients, and the need for more specialized legal skills have all contributed to this increase in allegations of legal malpractice.2
For these reasons, malpractice claims and grievances have become a reality in the modern-day practice of law. Further, professional negligence lawsuits often follow claims and grievances. There are rarely quick or easy solutions once a former client files a legal malpractice lawsuit. Plaintiffs counsel has typically vetted malpractice claims that reach the courthouse. Even when a case has a quick and easy solution, such as a successful dispositive motion or a nominal settlement, legal malpractice lawsuits leave a permanent mark on the attorney or the law firm against whom they are filed.
A misstep early in the life of a legal malpractice lawsuit can be very costly for the attorney or law practice. As a result, when a malpractice lawsuit is filed, it is important that the attorney and the law practice respond in a decisive and regimented way to prevent the case from becoming a legal malpractice nightmare. This article provides best practices that can help reduce the detrimental impacts that a legal malpractice claim can have on an attorney and law firm3
1. Notify the legal malpractice insurer immediately.
Legal malpractice claims are bad enough, but legal malpractice claims without insurance coverage are even worse. The quickest way to lose legal malpractice insurance coverage is to fail to provide timely notice to the insurance carrier or to fail to report the claim during the policy period.
Most legal malpractice insurance policies contain specific provisions governing notice of a legal malpractice claim to the insurance...
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