Steve Schwartz
By Steven H. Schwartz
As published in the August 2023 edition of Missouri Lawyers Weekly
Lawyers who think they may have committed malpractice sometimes make matters worse by hiding the malpractice from their client, or by admitting to the client that the lawyer was “negligent,” committed “malpractice” or by suggesting that the client sue and recover from the lawyer’s malpractice insurance. A lawyer should never hide a mistake from their client, but admitting negligence or suggesting the client file a lawsuit for malpractice is not the best option. Below are some suggested better responses if you think you may have committed malpractice.
1. Make sure you did commit malpractice. Sometimes lawyers think they have committed malpractice, but they find out later they did not. For example, we have been hired to defend lawyers sued for missing the statute of limitations only to find out that the statute of limitations had not run on their watch. It actually ran after another lawyer took over the case, or it ran before they were hired. In some cases, the statute of limitations is not always easy to determine. It sometimes requires further research or investigation to determine when the statute of limitations ran. We have had other cases when a lawyer was sued for failing to preserve a claim only to find out that the lawyer’s real mistake was taking the case to begin with because the client had no valid claim. The best way to check yourself to make sure that you did really make a mistake is to consult with another lawyer and call your insurance company. Some insurance policies will provide immediate consulting services with a defense lawyer to help with issues like this.
2. Determine if there is a remedy. Once you have determined that you, in fact, made a mistake, the next step is to figure out if there is a way to fix the mistake and whether you can do it without creating a conflict of interest. If you made a mistake that can be repaired by seeking leave of court, or making an agreement with opposing counsel, the best plan is to inform your client of the mistake orally and in writing, inform them of the plan to correct the mistake and get it corrected as soon as possible. If getting the mistake corrected is going to be more complicated, new counsel may need to get involved to avoid a conflict of interest. Sometimes your insurance company will hire defense counsel to get involved to perform a “claim remedy.” That lawyer can, with the client’s approval, enter an appearance for the client to remedy the mistake to avoid your conflict of interest and avoid a potential legal malpractice claim.
3. Report the claim to your insurer. Most legal malpractice insurance policies are claims-made policies, which means they apply in the policy year the claim is made, but in each year that you buy or renew a policy, the insurance company will ask you if you know about any potential claims. If you fail to disclose a potential claim that you know about before a policy renews, it probably will not be covered. It is best to report all incidents that may become claims as soon as you know about them, so you don’t forget to report them before you renew your policy or buy a new policy. Most insurance companies will not hold it against you for reporting a potential claim that results in no financial payout.
4. Protect the client’s rights. If you have confirmed that you, in fact, made a mistake that cannot be corrected, your only option is to withdraw from the case and advise your client to find new counsel. You must withdraw from the case in such a way that does not prejudice your client’s rights. In this situation, it is necessary to tell the client that a mistake was made that cannot be corrected and they need new counsel. However, it is best that you do not use words like “negligence” or “malpractice,” and you not suggest that the client sue you or that they make a claim on your insurance policy. If you do, that is going to be held against you later in a lawsuit.
5. Preserve your file materials. Make sure that your entire file, including all your communications regarding the case, are preserved. If the client asks for a copy of their file before a lawsuit is filed, it is critical that you keep a copy of it.
Steven Schwartz is a principal at Brown & James in St. Louis who has defended lawyers in legal malpractice cases, malicious prosecution cases and ethics complaints for over 35 years. He can be reached at sschwartz@bjpc.com.