So, How Does It Feel to Get Sued for Legal Malpractice?, 0317 COBJ, Vol. 46 No. 3 Pg. 67
| Author | Ronald M. Sandgrund, J. |
The InQuiring Lawyer
Ronald M. Sandgrund, J.
This is the fifth article series by The InQuiring Lawyer addressing a topic that Colorado lawyers may consider often but may not discuss publicly in much depth The topics in this column are being explored through dialogues involving lawyers, judges, law professors, law students, and law school deans, as well as entrepreneurs, journalists, business leaders, politicians, economists, sociologists, mental health professionals, academics, children, gadflies, and know-it-alls (myself included).
These discussions may tread on matters sometimes considered too highly regarded to be open to criticism, or even simple examination I take full responsibility for these forays, and I recognize that I may be subject to assessment and criticism myself (Please be gentle!) If you have an idea for one of these columns, I hope you will share it with me via e-mail at rms.sandgrund@gmail.com This month’s article is the first of a two-part conversation about the effect of legal malpractice claims on a lawyer’s psyche. The second part will print in next month’s issue. My thanks to Michael Katz, a Colorado Law 2L, for his help with the dialogue and the thoughtful questions he raised during the editing process. Also, I am grateful to the many dialogue participants willing to go on the record with their forthright observations and comments.
The leading rule for the lawyer, as for the man of every other calling, is diligence. Leave nothing for tomorrow which can be done today Never let your correspondence fall behind. Whatever piece of business you have in hand, before stopping, do all the labor pertaining to it which can then be done.
—Abraham Lincoln
This two-part article discusses the emotional roller-coaster that lawyers ride when they get sued for malpractice and some of the mistakes they make because of the feelings these claims stir. These emotions not only affect the a ttorney being sued, but also may create issues among law partners and between supervising and supervised attorneys. We will talk to defense lawyers who have represented attorneys against such claims, plaintiff lawyers who have sued other attorneys, lawyers who have gotten sued, and a psychologist who has counseled lawyers during the ups and downs of such lawsuits. We will examine whether the shame and stigma many lawyers associate with getting sued for malpractice has lessened over time and how such feelings can impair their judgment in defending such claims.
In addition, we will explore whether women attorneys are significantly less likely to get sued for malpractice and, if so, why. Also, we will talk with lawyers about how eroding-limits (Pac-man®) policies affect psyches and litigation strategies as one's protection against potentially crippling money judgments evaporates before their eyes while their defense counsel do all they can to protect their reputation and defend against scurrilous, and not- so-scurrilous, claims. Finally, we will investigate whether lawyers who survive the litigation sausage-maker learn anything new about our legal system—or about themselves.
Note
1. Basler, ed., The Collected Works of Abraham Lincoln, vol. II, "Notes for a Law Lecture" at 81 (July 1, 1850).
Ronald M. Sandgrund
Ron Sandgrund, of counsel with the Sullan Construction Defect Group of Burg Simpson Eldredge Hersh Jardine, P.C., has been a trial and appellate attorney since 1982, representing, early in his career, primarily product manufacturers, insurance companies, and small businesses, including real estate developers and builders, and then later, mainly property owners and homeowner associations in construction defect, insurance coverage, and class action disputes. He is a frequent author and lecturer on these topics, as well new attorney practice guides and the practical aspects of being a lawyer, and is an adjunct professor at the University of Colorado School of Law.
Series Participants
Nancy Cohen
Nancy Cohen is a partner in the Denver office of Lewis Brisbois Bisgaard & Smith LLP and a member of its Professional Liability Practice. Her practice primarily focuses on representing lawyers in malpractice claims and grievances and provides risk management advice to lawyers and law firms. She also defends healthcare and other professionals concerning licensure issues and malpractice claims. Over the course of her career, she has handled a variety of matters, including commercial litigation, contract disputes, and personal injury matters. She has a Colorado state and federal practice, including trial and appellate matters. Cohen is the 2016-17 Denver Bar Association president.
Kevin C. Flesch
Kevin Flesch, a principal in FleschLaw, advocates for those who have been the victims of unjust injuries in Colorado. He combines his extensive trial experience and knowledge of personal injury law with a personal commitment to his clients' welfare and fair treatment. Flesch is a graduate of the University of Wisconsin, La Crosse, and the William Mitchell College of Law. He is admitted to practice in all Colorado state courts and the U.S. District Court for the District of Colorado, the U.S. Court of Appeals for the Tenth Circuit, the U.S. Court of Federal Claims, and the U.S. Court of Appeals for the Federal Circuit.
Cecelia Fleischner
Cecelia (Cindy) Fleischner is a civil trial lawyer with over 30 years of courtroom experience. She has tried numerous legal malpractice, discipline/grievance, wrongful death, products liability, premises liability, and other personal injury lawsuits in Colorado's federal and state courts. She now specializes in defending attorneys in discipline and legal malpractice matters. She is a founding shareholder of McConnell Fleischner Houghtaling, LLC, and frequently lectures on legal ethics, professional liability law, and civil litigation. She is a graduate of Lafayette College and the University of Denver Sturm College of Law. She has been on the adjunct faculty at DU Law, where she taught basic trial practice and advanced trial practice.
Paul Gordon
Paul Gordon, founding member of Gordon & Melun LLC, is a Denver-based attorney who focuses on plaintiff legal malpractice claims. He also helps attorneys resolve professional disputes with clients and colleagues, defends attorneys who have been sued or grieved, and has served as an expert witness in legal malpractice cases. His mission is to aggressively and successfully represent clients, while at the same time treating all attorneys with the appropriate decorum Gordon also handles personal injury and commercial litigation.
Dave Hersh
Dave Hersh, a partner with Burg Simpson Eldredge Hersh & Jardine, PC, is a civil trial lawyer practicing in state and federal courts throughout the United States since 1984. He focuses on complex commercial and personal injury cases, including legal malpractice. Admitted before the Supreme Courts of the United States, Colorado, and Wyoming, and various federal courts, he has tried well over 100 civil jury trials to verdict. He and his wife are empty nesters who enjoy traveling the world to ride their bicycles and scuba dive.
Michael Mihm
Michael (Mick) Mihm is a trial attorney with Ogborn Mihm, LLP, where he focuses on legal malpractice and business litigation He is the editor of Lawyers' Professional Liability in Colorado (CLE in Colorado, Inc. 2015), a two-volume, 1,500-page treatise on legal ethics and lawyers' professional liability. He also authored or co-wrote a number of the book's chapters, and he updates the treatise each year. Mihm is the immediate past president of the Colorado Trial Lawyers Association, the largest specialty bar organization in Colorado.
John Palmeri
John Palmeri is co-managing partner of the Denver office of Gordon & Rees. He handles complex civil litigation, including legal malpractice. Palmeri has tried dozens of cases to jury verdict and has argued a number of precedent setting appeals. He is a member of the American College of Trial Lawyers and the American Board of Trial Advocates.
David Stevens
Dr. David Stevens is a practicing psychoanalyst and clinical psychologist. He is certified in the practice of psychoanalysis and has been appointed as a training and supervising analyst by the American Psychoanalytic Association He is interested in the pragmatic application of psychoanalytic ideas to clinical circumstances. He enjoys providing clinical consultations, case supervision, and psychotherapy to patients of all ages. Dr. Stevens has been involved in teaching psychotherapy to psychology interns and psychiatric residents and psychoanalysis to psychoanalytic candidates. Much of this teaching is done within the Department of Psychiatry at the University of Colorado Health Sciences Center, where he is an associate clinical professor. He is also on the teaching faculty of the University of New Mexico Health Sciences Center. He co-authored Neurodynamics of Personality (Guilford Press 2000).
Part 1: The Three Vs and the Six Stages of Grief
When the Bomb Drops
InQ: From my discussions, I got the sense that the great majority of lawyers feel like a bomb has dropped on their heads when suit papers are served. John, you’ve defended a lot of lawyers who’ve been sued—what have you seen regarding the emotional journey lawyers embark on when they are sued for malpractice?
John Palmeri: I call it the 3 Vs: vindication, vindictiveness, and victory. The vindicated lawyer wants to see the malpractice claim dismissed and receive acknowledgement that he or she is the best lawyer in the world. The vindictive lawyer wants to see opposing counsel...
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