Legal malpractice is a topic that often sends shivers down attorneys' spines. O'Roark's article "So You've Been Accused of Legal Malpractice?" (https://bassettlpm.homestead.com/So_you_ve_been_accused_of_malpractice.pdf) offers a refreshing perspective on this challenging situation.
One of the most striking points is how counterintuitive many aspects of legal malpractice are. For instance, experienced lawyers are more likely to face malpractice claims than rookies. This challenges my assumptions and serves as a wake-up call for seasoned attorneys to remain vigilant.
O'Roark's advice to "sit there" rather than rush into action is particularly insightful. In a profession that often demands quick thinking, pausing to carefully assess the situation before responding to a malpractice accusation is refreshing.
The article emphasizes the need for clear, proactive communication with clients when potential malpractice issues arise. This aligns with ethical obligations and is a practical way to manage potential claims. Open communication can help maintain trust and potentially resolve misunderstandings before they escalate.
O'Roark also touches on an often-overlooked aspect: the psychological toll malpractice claims take on attorneys and law firms. This highlights the need for support systems within the legal community.
The article provides crucial information about malpractice insurance, particularly regarding the "Claims Made" nature of policies. This serves as an essential reminder for attorneys to thoroughly understand their insurance coverage and report potential claims promptly.
While the article provides valuable advice, it could benefit from more discussion on preventative measures. For example, how can lawyers and firms proactively reduce the risk of malpractice claims?
Vernon, you mentioned "the psychological toll malpractice claims take on attorneys and law firms." This is a huge concern. As mentioned in class, I've had just one malpractice claim in my 43 years of practice. Although I knew it was meritless, as did insurance defense counsel, it remained pending for about a year and took a toll on me psychologically until it was finally dismissed.
ReplyDeleteDuring that year, in addition to responding to discovery requests and otherwise assisting insurance defense counsel, I began to question my own competency. This occurred although I knew I did everything right in the case and the primary reason for the lawsuit was so the former client could avoid paying the fees he owed me.
That raises another lesson - never get too far underwater in a case when it comes to fees. I should have withdrawn from the case once it became clear the client could not keep up with the fees that were billed monthly, leaving a large balance due when the case was done. If there had not been a large balance due, he would not have been motivated to sue me (on the last day before the statute of limitation ran) after I refused to reduce or waive my fees.
It's interesting that experienced attorneys are more likely to face malpractice claims than their newer counterparts. I assumed that new attorneys would be at higher risk for malpractice claims as they would be more prone to mistakes. However, It seems seasoned attorneys, with larger and more diverse client base, overtime are more likely to encounter complaints. This highlights the importance for all attorneys, regardless of experience, to remain vigilant and continually update their practices and knowledge. I guess experience does not necessarily equate to immunity from errors and that attorneys should always do their best to stay ahead of any potential malpractice claims with good communication and diligent record keeping.
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