A Loss Prevention Discussion for Lawyers
In every respect, even the very notice of a baseless claim against you as a lawyer is upsetting. You immediately need a new mindset at that point. Put aside the disappointment, anger, and unhappiness and do the professional things that are required. Immediately secure the file and preserve it all; refer the client out if still an existing client; notify your carrier with the details; and get outside counsel to advise you. It is not a time to self-represent or try to handle privately or to avoid the issue. Baseless or not, deal with the issue raised right away.
My personal theory from handling the defense of these for years is that good client relations and use of common sense prevent many claims. Mistakes are a given in any endeavor, but it is how well you respond that matters. Treating clients fairly in a timely and professional manner eliminates many of these in the first place. Likewise being a prudent professional and protecting yourself with a proper engagement letter and with full documentation of client discussions and decisions both go a long way in the faded memory category of a later claim against you.
Good client selection plays a part in your claims avoidance. The markers are there for the many who will make claims and it is up to the lawyer to do proper due diligence before taking on any case that is within their legal skill set. My wife’s grandfather said: “People are no damn good.” She believes he meant “some people are no damn good.” He was right with regard to that group of “red flag” clients that are highly likely to sue you. You need to be alert to those flags.
I am still amazed that errors and omissions coverage is not required for lawyers in some 48 states. Needless to say, if you own anything, it would be prudent to obtain and keep current this coverage if you intend to practice law. You can and will make mistakes. The “red flag” clients will be the type to make a claim, regardless of merit.
So, in the Bad Day Category, claims against lawyers steadily come in, whether deserved or not. The problem is that the pure legal cost of defense, as well as the emotional toll, keep rising. Of these claims, the old error of having a conflict of interest lingers (and is still hard to defend before a jury). The new lawyer tools of technology are now giving rise to new types of claims in the cyber world. So, whether old or new issues, they will keep coming so plan to deal with them effectively.
The very best defense to having a very bad claim day — is not to have a claim in the first place. This really requires a law firm’s commitment. Spend the preventative time to eliminate claims by good procedures and constant education. It takes time and repetition. Results show up only by not having claims. It is however worth the cost outlay to avoid having post-tax losses of income when you have claims. Emotionally you are better off knowing you and your other lawyers did all you could to avoid a claim. That process requires all in a firm to discuss and commit to a program of loss prevention with good quality control, as just good professional practice.
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