The InQuiring Lawyer
Ronald M. Sandgrund, J.
So, How Does It Feel to Get Sued for Legal Malpractice? (Part 2) 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 firstname.lastname@example.org This month’s article is the second of a two-part conversation about the effect of legal malpractice claims on a lawyer’s psyche. 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.
He who represents himself has a fool for a client. -attributed to Abraham Lincoln1
Experience is simply the name we give our mistakes. -Oscar Wilde2
is no better than adversity. Every defeat, every heartbreak,
every loss, contains its own seed, its own lesson on how to
improve your performance the next time. -Malcolm
This two-part article discusses the emotional roller coaster that lawyers ride when they get sued for malpractice. We spoke to defense lawyers who have represented attorneys against such claims, plaintiff lawyers who have sued other attorneys hundreds of times, defendant lawyers who have been sued, and a psychologist who has counseled lawyers during the ups and downs of such litigation In Part 1, we saw how these emotions not only can affect the attorney being sued, but also may create issues among law partners and between supervising and supervised attorneys.
In this Part 2, we examine whether the shame and stigma many lawyers associate with getting sued for malpractice affects them as client and witness in their own cases, and how it can impair their judgment in defending such claims. We explore whether women attorneys are significantly less likely to get sued for malpractice and, if so, why that might be true. We talk about how eroding-limits (Pac-man®) policies can affect lawyers as they watch their protection against a potentially crippling money judgment evaporate before their eyes while their defense counsel does all they can to protect their reputation and defend against scurrilous, and not- so-scurrilous, claims. Finally, we find out whether lawyers who survive the sausage-maker of litigation learn anything new about our legal system-or themselves.
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
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 (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, 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, a partner with Burg Simpson Eldredge Hersh & Jardine, P.C., 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 (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 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.
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 2: Takeaways from Being Sued
You Will Probably Get Sued
InQ: According to experienced professional liability defense counsel, relying on ABA and liability carrier statistics, lawyers will typically experience one legal malpractice claim and two ethics grievances during their careers. In my efforts to interview lawyers who have been sued for malpractice, not one who lost or settled the claim agreed to talk to me on the record, presumably because they did not want to publicize the assault on their reputation or relive the experience. One purpose of this article is to de-stigmatize being sued for legal malpractice. This can assist lawyers by lessening the emotional toll such claims bring to bear, and making lawyers better clients to their lawyers and better...