I am your worst professional nightmare. I represent plaintiffs in legal malpractice cases in the District of Columbia and Maryland. I see how lawyers get into malpractice trouble. As a result, I have learned many ways to prevent problems that lead to malpractice claims! Do that by practicing carefully, paying attention to your responsibilities, communicating with your clients, meeting deadlines, organizing yourself, meeting or exceeding client expectations, keeping good records, thinking about your cases and developing prudent legal strategies.

Having said that, I, too, am a lawyer. I’ve been practicing law for some twenty–five years, and, as a small firm practitioner, I know well the fears and anxieties that are inherent in being a lawyer. There are so many potential deadlines to miss, clients with unrealistic expectations, pressures from various sources (judges, opposing counsel, your own clients), interruptions, administrative requirements, etc. that it often feels impossible if you fail in any of these areas, there is somebody like me to come along and jump all over you. (And, yes, I have been sued for malpractice; just once, and it resulted in summary judgment for defendant.)

My first lawsuit against an attorney on behalf of a disgruntled client occurred in 1986. At the time, not many lawyers sued other lawyers. Even now there aren’t that many, but their numbers are increasing as it becomes clear that this is a growth area of legal practice.

The lawyer in the Haislip case,¹ which arose out of a divorce proceeding, simply hadn’t done his homework. That’s where I came in. To make a long story short, I obtained a plaintiff’s verdict in Haislip, the lawyer appealed, and the Maryland Court of Special Appeals affirmed in a widely–cited published opinion. That started my career as a plaintiff’s malpractice lawyer. Even though I have never advertised in any manner, about 50 of my current practice is devoted to this work, and it keeps me very busy. Not good news for some lawyers.

Well, here’s the good news. Many professional mistakes by lawyers fall into the “no harm—no foul” or “small harm—non–callable foul” category. I have a heavy burden of proof when I sue a lawyer. It is the burden of the plaintiff in a legal malpractice case to establish that, but for the below–standard performance of the lawyer, the plaintiff would have done substantially better in his or her case, whatever that case may have been. In most cases, the error is quite apparent, and ttle is over causation and damages. But often the damages do not amount to enough to make the case worthwhile on a contingent fee basis. So often I’ll simply commiserate with the client over his or her bad fortune and, if appropriate, refer him or her to Bar Counsel.

Since Haislip, I have handled dozens of legal malpractice cases in Washington and Maryland. The practice areas involved have included primarily personal injury, domestic relations, commercial transactions, intellectual property, criminal and probate. There are national statistics on what practice areas draw the most frequent malpractice complaints, and I am attaching them as an appendix to this article so you can check on how vulnerable you really are.

Also on the good news front, over the years I have come to know most of the area defense lawyers who are assigned to defend these claims by your malpractice insurance carriers and they are, by and large, a highly competent and aggressive group of lawyers. They are quite adept at casting a cold, analytic eye on your performance and any damage that may have flowed from it, and they usually make my life quite difficult on those pesky causation and damages issues. They will also tell you objectively whether, based on their assessment of the claim, you should stand and fight or get the best settlement you can.

As plaintiff’s counsel, I have heard a lot of clients complain about their lawyers. Although I only accept a small percentage of legal malpractice cases for prosecution, I hear a lot of stories about the conduct of lawyers. I have also seen a lot of lawyers’ records, work product, billing statements and correspondence—things that the lawyers may not have thought would be scrutinized by somebody like me at the time the documents were created.

Over the years, certain patterns have emerged in legal malpractice cases that have suggested some fundamental “Do’s” and “Don’t’s”. ² In this article, I simply want to identify those types of errors and behaviors that I have seen get lawyers into trouble. Armed with this information, take a look at your practice or the way that you practice, and decide whether you need to make changes to avoid an unpleasant encounter with a legal malpractice claim. If you need assistance in making these changes, contact your malpractice insurance carrier or the D.C. Bar Practice Management Advisory Service.

Do carry professional liability (malpractice) insurance. You do have malpractice insurance, don’t you? Although it is not legally required in the District of Columbia, it should be! If you don’t have at least $300,000 in coverage, you’re making a big mistake. Why? Because national statistics show that a lawyer will be sued at least once during his or her career. Even with a meritless claim, you will need coverage to pay for the legal defense costs, which can skyrocket quickly beyond the financial capability of many solo and small firm practitioners.

Do treat every piece of paper in your file as if it were to be scrutinized by a plaintiff’s legal malpractice lawyer. Rules of discovery allow total access to every paper you have—notes on thought impressions, strategy, assessment of clients and witnesses, everything. Always have that in your mind. I have always believed that any profession, including law, should be practiced defensively. Some argue that defensive medicine, for example, is overly cautious and expensive. I believe it is safer. Doctors who know lawyers are looking over their shoulders are more careful, and that is a good thing, on balance. Of course there are costs, but they are worth it. You should be prepared to pay the price of being careful about your note–taking and record–keeping in order to defend against me when I come calling.

Do your utmost to keep your clients satisfied. Being a legal machine that produces quality legal work is not enough. Clients want to be included in the legal process and receive value for their money. Continually evaluate the benefits the client will be receiving as a result of your services, weighed against the fee you are charging. A dissatisfied client is often the genesis of a malpractice complaint.

Do be careful about written documentation in your files.What was that about the internet and a paperless society? Forget it. Printout those e–mails (both out–going and incoming), punch two holes in them, and keep them in the client’s file. I try very hard to keep things chronologically, most recent on top, clipped into the file. Pleadings in one file, expert reports in another, notes and correspondence in a third, etc. I want to be able to reconstruct what I was doing and thinking at any given point in the case. And remember—somewhere down the line somebody else may be reading each one of those papers, with a view toward using them as evidence against you.

Do be very careful about keeping your calendar. Missed deadlines account for 20 percent of all legal malpractice claims, according to Mallen & Smith.³ Whether you use a Palm Pilot, a laptop, or a scraggly–looking old book that you pull out of your pocket, the important thing is to write down every deadline, event and due date. Then, look at your calendar every day—twice a day. How many times have you missed a date that was right there in your calendar, if you had only looked at it? You can’t afford to do that. If possible, have a dual calendaring system, with your secretary or paralegal in charge of one and you carrying a duplicate.

Do talk to other lawyers about your more difficult cases. Schmoozing with a knowledgeable colleague almost always helps you get a better understanding of your case. If you have a large firm, seek out a partner or associate in the same practice area. If you’re a solo or small practitioner, use your bar association or Inn of Court to find someone with whom you can casually talk about the case. (Use hypothetical terms; don’t use any facts that might identify your client.) Use this time to gather new ideas and get a better sense of the case from a colleague whom you respect. Sometimes we assimilate information better if it emerges from a conversation rather than a dusty lawbook or CD–ROM.

Don’t promise the moon to the client in order to get that initial retainer, when the best he or she can realistically hope for is a little asteroid. Understandably, this makes clients upset. In those cases where an objective assessment leads inescapably to the conclusion that the client should settle for the best he or she can get and forget about it, tell The client up front. I’ve been through a lot of painful scenarios in my career, but the worst is having to tell a client why a sure–thing case has gone down the tubes.

Don’t charge your clients unreasonable fees, and do pay attention to cost–benefit. If you don’t know what’s reasonable for a given type of case, ask around. Most of us are generally aware what the competition is charging for the same kind of work. Don’t go outside those bounds. If the client has run up a large fee and gotten a lousy result, give him or her a break on the fee (while making it very clear that the discount is not in any manner intended as an apology for substandard performance—bad things happen to good lawyers and deserving clients, and your bill should reflect that fact).

Don’t sue your client for fees unless you are confident of your services. Malpractice defense lawyers will tell you that a lawsuit on an unpaid bill is the quickest way to draw a claim. The client’s in court anyway; why shouldn’t he or she counterclaim? What’s to lose? Remember, the best defense is a good offense, and all that! At a minimum, make sure your claim for fees exceeds your malpractice insurance deductible. Nothing like paying $5,000 to collect a $2,500 legal fee. Better yet, try the D.C. Bar’s Attorney/Client Arbitration Service.

Don’t agree to represent a client who fails to pass your “smell test”. We all have a sixth sense that can help us determine who will be the problems, the ones with unrealistic demands, excessive need for “hand–holding”, or a story that rings false. I have personally violated this rule more than a few times, and it has always ended badly.

Do unto your client as you would have your client do unto you. If your attitude toward the client is that his or her pockets are deep and you set your rate to suit, then you are a walking malpractice target. Clients don’t like lawyers who take advantage, seem arrogant, forget to follow through with promises, or are unconcerned with their problems. Conversely, clients love lawyers who seem to really care about them and their concerns and can actually do something tangible to help. It may be an obvious point, but it is a fact that clients are less prone to sue lawyers they like.

I’m not sure why I’m giving away all this information on how to avoid malpractice claims when my financial well–being will be enhanced by lawyers making mistakes and angering clients. I guess I’m confident that there will always be enough work for a plaintiff’s malpractice lawyer in a busy urban bar like this one. Hopefully, if you follow these suggestions, we will never have to meet in a courtroom when you are a malpractice defendant.

Notes

1. Pickett, Houlon & Berman v. Haislip, 533 A.2d 287, 73 Md. App. 89, cert. denied, 537 A.2d 273 (1987).
2. The scope of this article is far too narrow to include a comprehensive discussion of the issues and elements involved in a legal malpractice case. If you are interested, and especially if you’ve been sued, there is a “bible” on the subject. It’s called Legal Malpractice, written by Mallen and Smith and published by West. The most recent edition, published in 1996, is a four–volume set and is the source of the statistics in the appendix to this article. That is where you can go for answers to detailed questions.
3. Mallen & Smith, Legal Malpractice, Section 1.7.

Christopher G. Hoge is an AV–rated lawyer in the firm of Crowley, Hoge & Fein. He practices in the areas of criminal law, civil litigation, and professional negligence. He is a past president (1998–99) of the Bar Association of the District of Columbia.