WILMIC News & Risk Management Articles

Claims Digest: Better Late Than Never? Not So Fast

Cliams Digest with Atty. Brian Anderson

One of the most common phrases uttered when an insured reports a legal malpractice claim to WILMIC is:

“I knew I should not have agreed to take that case.”

This is especially bothersome to a lawyer who decided to get involved in the underlying representation at the last minute. In hindsight, the lawyer’s initial concern ends up being valid and is supported by the fact that the attorney never had the time to adequately underwrite the prospective client. A claim or grievance is more likely to arise out of a matter where the attorney was unable to make a knowledgeable determination that the client matter was one that the lawyer felt comfortable undertaking in the first place. A claim recipe for disaster is a lawyer who is retained at the 11th hour in a case with deadlines looming or with a trial date already scheduled.

The law in Wisconsin governing legal malpractice claims is not forgiving to the lawyer who has the “last chance” to prevent the harm, even if another lawyer was negligent and should have handled the matter differently prior to the succeeding lawyer’s involvement. In the case of Seltrecht v. Bremer, 214 Wis. 2d 110, 571 N.W. 2d 686 (Ct. App. 1997), the Wisconsin Court of Appeals ruled that when a client is represented sequentially by two lawyers, both of whom were arguably negligent with respect to the same matter, the second lawyer is responsible for any damages if he or she could have prevented the client’s harm.

Although an attorney may feel sorry for a client and want to help them, the court’s decision in Seltrecht creates a situation where the lawyer who decides to get involved late, does so at his or her own peril. Some of the claim issues that we have observed impacting successor counsel include:

  • That the attorney may not have the complete and accurate file materials needed to make a determination as to whether the underlying matter can be handled competently and is meritorious;
  • That there was a misunderstanding that developed between the prospective client and the attorney at the outset regarding the scope of retention or whether an attorney/client relationship was ever established when the deadline is missed;
  • That the attorney may not have properly vetted the new matter to recognize a conflict of interest involving a former client, due to time constraints at the time of the initial intake;
  • That the initial intake information may be incomplete or lacking a proper investigation that would enable new counsel to determine whether he or she has the time and overall competency to diligently prepare and handle the case;
  • That the necessary experts may not have been retained or consulted with and dates may have already been missed on pending litigation matters, severely undermining the lawyer’s ability to successfully prosecute the client matter;
  • That the interested witnesses may not have been interviewed or their statements may not have been secured, creating difficulties in the evaluation and prosecution of the case, and;
  • That the client’s expectations may have been improperly set at the outset and, as such, the client may be expecting an outcome that you will never be able to deliver.

Another risk to consider, before agreeing to take on a case, is whether the prospective client has “fired or been fired by” an attorney on the case matter, prior to your retention. Requesting your prospective client’s consent to speak with prior counsel is often a good idea and can help you better understand the nuances of the case that you are considering taking. If the prospective client has gone through a number of attorneys and has a history of suing lawyers, the reality is that the case is unlikely to turn out any better or differently for successor counsel.

Helping clients in distress is a noble goal and likely why many lawyers decided to start practicing law in the first place. When a lawyer gets involved with a client matter that is already pending or has deadlines that are about to toll, it may quickly be the lawyer who is in distress. A legal malpractice claim or OLR grievance can negatively impact your profitably, reputation and stress level. Careful client selection should include increased scrutiny when you are getting involved, for the first time, late in the dispute. Consider the red flags noted above and the rule of law from the Seltrecht case, before agreeing to jump into a matter.

Brian Anderson

Brian Anderson is WILMIC’s Senior Claims Attorney, and works with lawyers in resolving malpractice claims made against policyholders. He enjoys the challenge of helping place policyholders at ease during a time of stress, when they are facing a legal malpractice claim or grievance. He can be contacted via e-mail or by calling (800) 373-3839 ext. 236.