As an attorney, one of the most significant professional and financial risks you may face includes becoming a defendant in a malpractice claim asserted by a client. When a former client sues you for legal malpractice, knowing what to do and what not to do can help you respond appropriately to the claim and pursue a favorable resolution.
Understanding the Situation
A malpractice claim by a client alleges that you provided negligent legal representation that failed to comply with the applicable standard of care in your client’s case, such as by missing filing deadlines, or that you breached one or more ethical rules, such as representing the client while under a conflict of interest or disclosing the client’s confidential information.
A malpractice claim may subject you to financial liability for the losses sustained by the client due to the malpractice. Malpractice claims can also have adverse professional consequences, as existing or future clients may withhold their business, and the state bar may open disciplinary proceedings. As a result, staying calm and objective so you can evaluate what steps to take can help you respond to the malpractice claim appropriately.
Dos When Facing a Malpractice Claim
Things you should do when facing an open malpractice claim include:
- Notify your malpractice insurance provider as soon as possible to ensure your entitlement to liability coverage and obtain support for responding to the claim, including legal representation from a malpractice defense attorney.
- Review the claim documents thoroughly to understand the client’s allegations and gather relevant documentation, including the client’s case file, emails, text messages, and any other pertinent notes.
- Consult a legal malpractice defense attorney as soon as possible to better understand your legal options and the potential outcomes of the claim.
- Avoid discussing the claim with others (except for your malpractice insurer or your malpractice defense attorney), and refrain from attempting to contact the client who filed the claim.
- Use the claim as an opportunity to improve your operations and standards, even if you think doing so suggests a consciousness of guilt, as you can use the learning opportunity to avoid future claims.
Don’ts When Facing a Malpractice Claim
Actions to avoid when faced with a malpractice claim that could hurt your interest or jeopardize your ability to defend yourself against the claim include:
- Ignoring the claim or failing to promptly respond, as avoiding dealing with the claim may cause you to miss critical deadlines or potentially worsen the consequences and outcome of the claim.
- Admitting fault or apologizing, since you may not have all the facts or understand the legal standards applicable to the claim fully, and may inadvertently accept liability when you do not bear any under the applicable law.
- Altering, destroying, or deleting relevant records, as doing so constitutes spoliation of evidence that can have adverse consequences in a malpractice lawsuit and subject you to harsher discipline from the bar.
- Discussing the case with other parties besides your malpractice insurer and defense counsel, as people you discuss the case with may become witnesses in the malpractice claim.
- Representing yourself, as another attorney who focuses on handling the defense of legal malpractice claims can better advocate for your rights and interests.
- Letting the claim distract you from your practice and add to your stress, which may cause you to provide less quality representation to your other clients.
Contact WILMIC Today
When a client files a malpractice claim against you, knowing what steps to take can help you protect your rights, professional reputation, and financial interests. Contact WILMIC today for an initial consultation with our team to learn more about how our insurance services can help you resolve a malpractice claim.