Have you been accused of breaching ethical rules or making negligent errors in a client’s case? If so, you could be facing a professional liability in a malpractice claim, and it’s important that you take prompt action to protect your rights and maximize your options for a favorable resolution. Here are some practical steps to take to protect yourself at this critical moment.
Step 1: Notify Your Professional Liability Insurer
First, notify your professional liability insurance provider of the malpractice claim. Do this as soon as you receive notice of the claim or become aware that a client plans to bring a claim against you. Most professional liability insurance policies require attorneys and law firms to provide notice of claims as soon as they become aware of them. Waiting to contact your insurer can jeopardize your coverage.
Notifying your insurer as early as possible will allow them to assign defense counsel to represent you in the malpractice claim. Your counsel can explain what steps you and your firm need to take in response to the claim. A defense lawyer may also help resolve a legal malpractice claim before it escalates to costly litigation.
Step 2: Do Not Contact the Claimant
When a client serves notice of their legal malpractice claim, you should refrain from contacting the client directly. Anything you say to your client or any actions you take in response to their claim may become adverse evidence in the case. Instead, let your professional liability insurer and your appointed counsel handle all communications with your client or their new lawyer. If the client contacts you after bringing a malpractice claim, respond professionally and defer any further communication to your defense counsel.
Step 3: Preserve Case and Client Records
Next, secure all relevant case and client records. That includes emails, notes, research documents, and court filings related to the client and their case. You should never alter, destroy, or delete records, as doing so could violate ethical rules and may lead to an adverse inference in the legal malpractice case. If your firm or practice keeps electronic records, make sure to keep backup copies of electronic files. Finally, review your records retention policies and deactivate any automatic deletion protocols on your electronic devices or accounts to avoid inadvertently destroying relevant records.
Step 4: Cooperate With Your Defense Counsel
Once your insurer assigns defense counsel, cooperate with your attorney by providing complete and truthful information about the case, even if the facts may embarrass you or place you in a bad light. Disclosing mistakes or oversights you may have made can help your lawyer prepare a compelling case. Your disclosure will also avoid potential surprises for them.
Step 5: Review and Improve Your Practice Procedures
Finally, use a legal malpractice claim as an opportunity to improve your firm’s procedures and risk management practices. Depending on the facts of the case, you can glean lessons from the claim to update your:
- Case management systems
- Client communication protocols
- Trust accounting work
- Conflict-checking procedures
Using a malpractice claim as encouragement to update your firm’s practices can help prevent future claims and demonstrate your commitment to professionalism, even if you ultimately avoid financial liability.
Contact WILMIC Today
One of the most important things you can do to protect yourself from a legal malpractice claim is to invest in the right insurance policy. Contact WILMIC today for an initial consultation. We’ll walk you through our coverage options and explain what you can do if you’re already facing malpractice allegations.