by Paul E. Kovacs and Craig G. Moore
Each year, more than 20 percent of attorneys in private practice are faced with the potential of having to defend against a legal malpractice claim.2While, as with most litigation, the vast majority of these claims are settled, those claims and settlements can often be substantial. With legal malpractice claims and settlements reaching into the tens of millions of dollars, and with attorneys facing juries that are frequently hostile to their defenses, the practice of defending legal malpractice claims is one that provides unique challenges.3
In legal malpractice suits, both the attorney accused of malpractice and the attorney defending his client/colleague have their traditional roles disrupted. The accused attorney, so often the zealous advocate for his client, takes on the role of a client and as such his duties are to honestly assist his attorney in the preparation of his defense. These new duties run counter to his natural inclination to take control. The attorney representing his accused colleague, while retaining his traditional role as advocate, is faced with the special challenges associated with representing a client who not only has a detailed knowledge of the process, but who also has extensive personal knowledge from which to critique and question his attorney's performance. This unique relationship, between the attorney accused of legal malpractice and the attorney who represents him, provides the subject of this article.
I. The Elements of Legal Malpractice
While the focus of this article is the recommended practices for those attorneys faced with a legal malpractice claim and the attorneys who defend them, initially, if only as a review, it is good to consider the essential elements of a legal malpractice claim. The "elements of a legal malpractice action are: '(1) that an attorney-client relationship existed; (2) that [the] defendant acted negligently or in breach of contract; (3) that [the defendant's] acts were the proximate cause of the plaintiff's damages; [and] (4) that but for [the] defendant's conduct the plaintiffs would have been successful in the prosecution of their [underlying] claim.'"4
A thorough understanding of the elements of the cause of action may do much to forestall the initiation of a claim. Specifically, attorneys should constantly monitor the existence and status of their relationships with clients and former clients so as to ensure that they do not inadvertently subject themselves to unexpected duties, and also so they avoid the inadvertent breach of duties currently owed to clients. Avoidance of misunderstandings that lead to malpractice claims can significantly be achieved by striving to accomplish three common sense goals: 1) attorneys should strive for clarity in defining and documenting the scope of the proposed engagement; 2) attorneys should strive for clarity in specifically defining who is, and who is not, being represented; and 3) attorneys should always conduct careful conflict of interest screening on client intake, and this conflict screening should continue throughout the representation. These goals of clarity and constant monitoring can help avoid many conflicts before they blossom into legal malpractice claims.
Aside from focusing the attorney on the relationships that give rise to many legal malpractice claims, these elements also introduce an area that is important to understand in the defense of legal malpractice claims: the "case within the case." The "case within a case," while not specifically mentioned as such, is set forth in the final element of the cause of action, which requires that the plaintiff prove that, but for the defendant's conduct, the plaintiff would have been successful in the prosecution of the underlying claim. To successfully establish this element, a plaintiff must simultaneously prove not only that their former counsel was negligent, but also that they would have been successful in the underlying action. To do this, the plaintiff in the legal malpractice action must essentially try, and win, the underlying action while pursuing the legal malpractice action against their former counsel in the same case.
Recognition of this case within a case provides defense counsel an additional opportunity in which to assist his client, as well as an additional hurdle for the legal malpractice plaintiff. Moreover, defense counsel may find that bifurcation of the trial, so as to force plaintiffs to prove they would have been successful in the underlying claim before the negligence issues are even considered, may greatly aid in the defense of their client. If counsel can prove that the plaintiff's position in the underlying action was untenable, the consequence of subsequently alleged legal malpractice is reduced or even eliminated. Similarly, this requirement prevents plaintiffs in legal malpractice claims from seeking recovery from their former counsel merely because the prior representation was unsuccessful. Instead, plaintiffs are required to prove that, but for the negligence of their counsel, they would have been successful in the prior matter.
This requirement also provides an opportunity for those defending against legal malpractice claims to insert an argument for their client that may reduce or even eliminate damages. In most instances, damages from legal malpractice claims are purely economic. As such, if during the case within the case, defense counsel can establish plaintiff was contributorly negligent, that negligence may be a complete defense.4a
Aside from understanding the basic elements required to prove a legal malpractice claim and the general areas in which opportunities arise for defense counsel to assist their clients in defeating those claims, it is also of some assistance to understand where legal malpractice claims find their origins. If practicing attorneys and their legal malpractice counsel can recognize the origins of claims, they can be better prepared to prevent their occurrence.
II. The Origins of Legal Malpractice
The problems that result in many legal malpractice suits find their origins as far back as the first days of an attorney's practice. Straight from law school and the bar exam, or with luck a judicial clerkship, new attorneys are rife with knowledge of the law but know little, if anything, about representing a real client in a real lawsuit.5 This lack of knowledge provides fertile ground upon which to sow the seeds of future legal malpractice claims; indeed, the avoidance of those claims is rarely a subject with which a new attorney has had any experience.6
Considering the relative inexperience of new attorneys and the lack of formal education geared towards preventing legal malpractice, it may be legitimately wondered why more legal malpractice claims are not filed every year. While one might like to attribute this relatively small number of cases to excellent mentoring by experienced partners and senior associates, or perhaps to the diligence and discernment of new attorneys, the more likely explanation is not nearly as comforting. Because the vast majority of all cases are settled and never reach trial, many instances of legal malpractice are obscured by settlement agreements or are never discovered by unsuspecting clients.7
Moreover, some firms have initiated the practice of including binding arbitration agreements in their engagement letters. These arbitration agreements preclude many legal malpractice disputes, and the circumstances from which they originate, from ever being publicly disclosed. While the wisdom of requiring binding arbitration agreements in engagement letters may be questioned,8 the fact that they preclude numerous disputes from being publicly reported cannot.
By no means do we suggest legal malpractice is the norm, but unfortunately it does happen and we as attorneys must do all we can to prevent its occurrence.9 The purpose of this article is to bring attention to legal malpractice in the hopes of reducing its occurrence; to assist those attorneys who do find themselves subject to a legal malpractice claim in defending against that claim; and to reveal some of the problems faced by a defense attorney in representing other members of the profession accused of legal malpractice. This final aspect hopes not only to assist those with a practice defending legal malpractice suits, but also to educate those attorneys who are subject to the legal malpractice claims as to the unique difficulties faced by their attorneys in defending legal malpractice claims.
III. Suggestions to Attorneys Subject to a Legal Malpractice Claim
While being sued is almost always an unwelcome and unpleasant experience, an attorney who is sued for legal malpractice faces particular challenges. Suits for legal malpractice, at their best, accuse the defending attorney of misjudgment and quite often go further into accusations of incompetence and lack of professional ability or integrity. These claims are often taken by the accused attorney as a direct attack on his ability to perform the required duties of his profession and are understandably taken quite personally. It is important for the accused attorney to remember those words of advice that he would undoubtedly give any client coming into his office for the first time upon discovering they had been sued: "Calm down, it will be alright, you will get through this."
Lawyers who find themselves the subject of a legal malpractice claim first must understand that their accustomed role as advocate is drastically altered in their defense of legal malpractice claims. The first instance in which lawyers often fail to recognize this alteration of roles is at the very onset of the legal malpractice case. Absent unusual circumstances, attorneys do not usually anticipate suit being brought by their former clients. Faced with an unsatisfied client or, worse yet, service of a filed petition for professional negligence, the first reaction of most attorneys is to contact their former client in an attempt to remedy what they assume is assuredly just a misunderstanding. This is often the attorney's first mistake in dealing with a claim for legal malpractice.
A. Hire Counsel
Hire a lawyer. This is likely the first advice any attorney would give to any unrepresented individual finding themselves a defendant in a lawsuit. Yet, this seemingly fundamental first step in the litigation process is one that many attorneys faced with legal malpractice claims often neglect. While it is likely that every lawyer thinks they have the basic skill and knowledge necessary to defend themselves, attorneys are highly discouraged from attempting to represent themselves against any legal malpractice claim. The first amongst the innumerable factors weighing against self-representation is that it is almost impossible for any lawyer/defendant to exercise the same objectivity and consideration in relation to a case against him as he would in evaluating a matter filed against one of his clients. As merely an example, the authors are reminded of a recent attorney disciplinary proceeding before the Supreme Court of Missouri.
In In re Donaho, an attorney charged with professional misconduct chose to represent himself in his disciplinary proceeding before the Court.10 In an underlying representation, the attorney had received payment from a client for services that the attorney never provided.11 After the client received a small claims judgment and after the initiation of proceedings before the Chief Disciplinary Counsel ("CDC"), the attorney agreed to reimburse his former client.12 In ostensible compliance with his agreement to reimburse his former client, the attorney purchased two separate money orders totaling the amount owed the former client and faxed copies of those money orders to the CDC as proof of payment.13 After faxing the copies to the CDC as proof of payment, the attorney failed to mail the money orders to the former client and, instead, cashed those money orders for his own benefit.14 After failing to receive payment from the attorney, the former client filed another action against him for recovery of the unearned fees. After learning that the money orders were never delivered to the client, the CDC instituted additional proceedings.15
The attorney represented himself before the Supreme Court of Missouri in the proceedings relating to his failure to deliver the money orders to his former client, and his attestation to the CDC that he had in fact delivered the same. In those proceedings, the attorney specifically, and repeatedly, denied that his attempt to convince the CDC that he had reimbursed his former client by fabricating and faxing the money orders as proof of payment was a "dishonest" act.16 The attorney "repeatedly refused to acknowledge that his obvious fabrication could be characterized as 'dishonest,' preferring instead to describe it as merely 'foolish'"17
While the authors will refrain from comment as to the wisdom or dishonesty of the attorney's underlying acts, we think this exchange exemplifies why it is essential that attorneys seek outside representation when faced with claims of professional negligence. This exchange is, unfortunately, all too typical of the discourse in proceedings in which attorneys represent themselves and would likely have been avoided had the attorney been represented by counsel. The attorney's extremely personal involvement with the proceedings precluded his recognition of the obvious incongruity of his testimony. An outside attorney whose objectivity was not skewed by personal involvement would surely have been more adept at handling the Court's questioning.
Aside from the personal nature of almost all legal malpractice claims, the defendant attorney is also encumbered by his own personal expectations for the underlying claim. Fundamental to the Rules of Professional Conduct is the principle that attorneys, as officers of the court, may not advance fallacious claims or defenses on behalf of their clients.18 While one might think that this rule would serve to protect the accused attorney by potentially giving his statements and conduct a presumption of truthfulness and honesty, the rule is often turned against him in his defense against legal malpractice claims.
Legal malpractice claims inevitably result from actions that were not initially successful in the eyes of the client. These failures result not only from adverse rulings or verdicts, but also from favorable rulings that do not attain the level of success the client anticipated. In fact, optimistic attorneys often encourage their client's anticipation and, in so doing, invite the potential for legal malpractice claims. This most frequently occurs during the initial client intake consultation. During client intake, the attorney's desire to get the business leads him to optimistically opine as to the value of the case and usually discusses a number the client wants to hear. This can come back to haunt even the most seasoned attorneys. By optimistically responding to the frequently asked question of "What's it worth?" with a large dollar figure or estimated amount of recovery, the unsuspecting attorney sets a potential figure for damages in any subsequent legal malpractice claim. Even if a client were to receive a verdict in the high six figures, they will likely be unsatisfied if they were expecting millions. For this, and likely many other reasons, attorneys are ill-advised to respond to that initial question with anything but the most conservative estimate, all the while couching that estimate in the reality that all cases proceed differently and that anything can happen.
Regardless of the assumed probability of success in the underlying action and regardless of the diligence and skill of the attorney in advocating his client's position, there is inevitably a winner and a loser in each judicial battle. Because the Rules of Professional Conduct prohibit attorneys from bringing any action or asserting any defense that they in good faith do not believe is meritorious, it is inherently true that an attorney cloaks each of his clients' claims and defenses with his professional approval. This approval gives at least the appearance that a former client's claims had merit and that the now disgruntled former client has good reason to question the failed outcome of the previous suit. This encumbrance provides yet another hurdle for the legal malpractice defendant.
Because the attorney was required by the professional rules to assert only meritorious claims and defenses in the underlying action, the plaintiff's claims that the attorney defendant committed malpractice are often difficult for that attorney to counter without the aid of counsel. While there is a general knowledge among the courts that the mere fact that a claim or defense is meritorious does not ensure its success, that knowledge is often overshadowed in legal malpractice suits. To defend against any claim for legal malpractice, attorneys are faced with the uncomfortable challenge of arguing against the position that they previously advocated. To succeed in their defense of the legal malpractice claim, attorneys are essentially forced to argue that the court's ruling against their client below was correct even though it was contrary to the position they advocated in the underlying matter. In essence, attorneys defending legal malpractice claims are required to prove that their client should have lost the underlying case. Aside from the seemingly contradictory representations to the court, this also requires attorneys to directly challenge their former client as to the validity of his claim, a stance that often proves uncomfortable.
Representation by separate counsel allows the legal malpractice defendant to avoid this direct challenge to his previously asserted position. Counsel for the accused attorney is concerned only with the representation of the legal malpractice client. This gives the attorney the same zealous advocate that the plaintiff enjoys without the accused being forced to directly assail his prior positions. Representation also allows the defendant attorney the advocacy of one who does not now, and has never owed duties to the plaintiff. While the defendant attorney may be procedurally relieved of his duties to the plaintiff in the current legal malpractice action, it is undoubtedly easier for the attorney's defense counsel to challenge the merits of the plaintiff's underlying claim.
B. Be a Good "Client"
It has been said that lawyers make absolutely the worst clients. "They [are] terrible witnesses," they unnecessarily dissect seemingly simple questions, and appear to be "lying even when they [are] telling the truth."19 Jurors frequently rule against attorneys in actions brought by former clients "unless there [is] a written document supporting the lawyer's side of the story."20 Because an attorney defending against a legal malpractice claim starts his defense with the burden of having to avoid these and many other unflattering perceptions, it is important that all legal malpractice defendants attempt to assist their defense counsel in whatever manner possible. However, the assistance the attorney accused of legal malpractice should provide his attorney is not likely that which first comes to mind.
As a defendant in a legal malpractice claim, the attorney, like all defendants, best assists in his defense by fully and completely disclosing all available information to his lawyer and promptly responding to his requests. Although it may seem to be sophomoric advice, it is important for attorneys accused of legal malpractice to remember what kind of clients make their lives easier and what clients make the most positive impressions to the court, and particularly to the jury.
Moreover, it is also important for attorney/defendants to remember what they likely tell each of their new clients: "Retain all potential evidence and avoid discussing the case with anyone." While this is in some respects merely an extension of the prior advice to hire an attorney, this advice is especially important for the attorney/defendant because there are numerous pitfalls that could result from improper discussions, communications or missing evidence.
The retention of all documents is of utmost importance, not only because destruction of the evidence is undoubtedly against the law (and almost always reflects poorly against the party who is accused of destroying the documents), but also because it is likely that these documents are the attorney's main source from which to display his competence in the representation of his former client.21 "A lawyer's file . . . may be the most crucial evidence of what he or she did or failed to do."22 However, it is important to consider privilege and work product issues when considering the use of the client file in defense of any legal malpractice claim. While anticipatory, at-issue waiver of the attorney-client privilege occurs where the client places the subject matter of the privileged communications at issue, only the privilege related to those areas of the file directly related to the claimed malpractice is waived.23
When defending legal malpractice claims, it is important for the attorney to consider and protect privileged documents and material, as disclosure of protected material that the attorney incorrectly assumes is subject to the at-issue waiver could result in additional grounds for legal malpractice recovery. It is also advised that the attorney carefully consider his own rights and obligations in turning over client files in response to legal malpractice proceedings. Under Missouri law an attorney is not required to reveal and produce opinion work product containing his mental impressions, but instead is required only to produce the end product of the representation and the documents necessary to understand that product.24 Accordingly, an attorney may properly refrain from producing documents containing his mental impressions and, in so doing, may avoid "fishing expeditions" on which plaintiffs seek to assert additional claims.
It should also be remembered that in legal malpractice proceedings attorneys are held to standards of documentation that very few actually meet in practice. Given the opportunity, a plaintiff's lawyer can often find some error or omission within the attorney's file.25 An attorney who keeps copious notes and extensively documents client communications and events related to the matter not only provides himself with substantial evidence in defense of his competence, he also does much to avoid the initiation of legal malpractice proceedings in the first place. Well-organized attorneys with extensive documentation systems often avoid the malpractice claim before it ever materializes.
C. Do Not Attempt to Communicate or Settle Claim Directly With the Plaintiff
When faced with an actual or potential claim for legal malpractice, it is important for the accused attorney to recognize the seismic shift that has occurred in his relationship with his former client. While initially it is true that open lines of communication do much to avoid legal malpractice claims, it is important for attorneys to recognize that once a claim for legal malpractice is threatened or filed his relationship with the client has indeed changed. This realization is often difficult, as the attorney may feel that the claim is simply a misunderstanding or a miscommunication between the parties that can be remedied by the attorney explaining the situation and persuading the plaintiff to withdraw the claim. Although there may indeed be a misunderstanding, it is likely too late for simple explanations to remedy the situation, and the attorney's attempts may do more harm than good.
First, it must be remembered that communications to the disgruntled client are not privileged and, much like the famous Miranda warnings, "Anything you say can and will be used against you in a court of law."26 Indeed, it is likely that the initial proclamation of the Miranda warnings may also be the most appropriate advice to counsel facing legal malpractice claims. You have the right to remain silent.
While it is understandable, and in fact laudable, that a conscientious attorney would seek to correct what he deems to be a misunderstanding between his former client and himself, his expressions of regret as to that perceived misunderstanding may later be recalled as an admission of liability when the former client is questioned about the conversation. Even worse, efforts to settle a potential claim with an unrepresented former client have the potential to result in charges of undue pressure or duress, and thus additional liability when the former client finally seeks representation.27 For these reasons it is important that the accused attorney avoid directly communicating with the former client after the initiation of legal malpractice proceedings becomes likely. Honest attempts to cure what the attorney sees as a misunderstanding can become testimonial nightmares when re-examined in a later trial.
D. Informing Your Malpractice Insurer of Potential Claims
When faced with a potential malpractice claim, an attorney faces many difficult decisions, one of the most important of which is deciding if and when the attorney should inform his insurer of a potential claim. Many professional liability insurance policies covering legal malpractice are of the claims-made variety. A claims-made policy does not cover a specific period of time relating to the occurrence of the alleged malpractice, but instead covers when a claim for professional negligence is actually made against the insured.28 Most claims-made policies require that the insured provide written notice of the claim within a specified time after first learning of the potential claim. These policies also allow for the coverage of claims actually made after the expiration of the policy as long as the insured attorney gave notice of the facts and circumstances that might give rise to the claim during the covered period. Prompt notification to the insurer of potential claims ensures coverage.
As such, it would seem to be advisable to notify your insurer of every instance that could possibly result in a potential claim so as to ensure coverage. In fact, this is what insurers suggest. Karen McCarthy, president and CEO of The Bar Plan Mutual Insurance Company, suggests that attorneys notify their insurer "as soon as they are aware of any activity or occurrence that could arise in a claim."29 Aside from the requirement included in almost every professional liability policy that attorneys must report every "incident," McCarthy further encourages early reporting so that the attorney can benefit from their insurer's "claim repair" or "claim remedy" expertise.30 Specifically, early incident reporting is encouraged because quick action by the insurer's experts can help avoid further damage to the potential plaintiff and, in many cases, can help the insured salvage the relationship with the client.
Unfortunately, many professionals are hesitant to contact their insurer as early as is suggested. Many believe that, like automobile or home owner policies, notification of potential claims that never materialize can expose the insured to higher insurance premiums. McCarthy assures this is generally not the case. Aside from the fact that most professional liability policies require incident reporting, McCarthy indicates that The Bar Plan, and most other professional liability insurers, do not alter or adjust their insured's rates based upon reporting incidents that are reported but never materialize into actual claims. Accordingly, McCarthy says that early reporting has the potential to avoid many claims, and reduce others, all the while having no adverse consequences to the reporting attorney.
As the prior references to incident reporting indicate, the filing of a lawsuit is not a prerequisite for the existence of a claim under a professional negligence claims-made policy. Generally, for purposes of a claims-made policy, a claim is made when there is a demand for damages, fees, for further services, or for the correction of a failure in prior representation that the former client alleges caused injury. Specifically, there is substantial case law that has defined "claim" as a demand received by the insured for money or services, including the service of suit or institution of arbitration proceedings against the insured.31 That definition has been adopted by, and included in, many claims-made policies. However, the occurrence of a formal claim is not required before you seek assistance from your insurer. Instead, it is likely the best policy is to inform the insurer as soon as any potential claim is identified.
In identifying potential claims, the test is likely one of reasonableness: Is it more likely than not that an incident will lead to a claim? Because the coverage of the claim depends upon your notification of the insurer, the time to notify your legal malpractice insurer of a potential claim depends significantly on the circumstances of the particular dispute.32 In matters where the validity of the former client's claim is fairly clear (such as a blown statute of limitations), an insurer should be notified as soon as possible so as to facilitate settlement of the claim, hopefully before a suit is even filed.33 In other matters, where the former client's potential claim is questionable, McCarthy indicates that it is still advisable to notify your insurer as soon as you realize a potential claim exists.
While some attorney/client disputes may be adequately and appropriately handled "in house" by involving other firm attorneys, as a rule it is often better to be safe than sorry. Notifying your insurer promptly ensures that your claims will be covered and may indeed help avoid claims altogether. Further, by failing to report potential claims, attorneys can deprive themselves of the benefit of their insurer's experience in defending the claims.34 While we do not encourage the submission of a "laundry list" to your insurer of every conceivable instance in which you may have erred in your practice, an insured should inform his insurer of any incident at the earliest possible occasion.
IV. Problems Faced when Representing Attorneys in Legal Malpractice Actions
A. Attorney Defendants Attempt to Control the Representation
Often defendants in legal malpractice claims tend to take an overactive role in their defense. Because the attorney defendants possess the same legal training and education, and because they are obviously concerned about the outcome of their case, lawyer defendants often attempt to insert their influence into each and every minute detail of the case.35 When an attorney defendant begins to opine on and critique their attorney's performance in conducting routine discovery and motion practice, it not only has the potential to decay that important attorney/client relationship, but also can divert the attorney's attention from more important issues presented in the case. When an attorney's attention is diverted towards peripheral issues, important matters may be neglected that ultimately hinder the overall representation.
In representing attorneys in legal malpractice actions, it is important for the defense counsel to understand that his client enters the relationship with a preconceived notion of how his case should be handled. Because the client enters the engagement with these preconceived notions of performance, it is important from the beginning of the relationship that the attorneys discuss the roles each will be taking in the litigation.
Each attorney approaches the opening and work up of a new file with their own unique style, and communication regarding this process can help avoid misunderstandings. Attorneys represent-ing other attorneys in legal malpractice actions should initiate a dialog at the very outset of the representation, taking special care to keep their clients informed of the proceedings and the progress of the case. In some instances it may even be possible that the attorney/client can assist with the preparation of documents required in the litigation. However, in this sort of cooperative representation it is important for the legal malpractice defense attorney to ensure that the attorney/defendant understands that, at the end of the day, the defense attorney has the final decision on tactical strategy. If it is obvious to your client that you are in control of the process and that you are actively managing his case, he is much less likely to attempt to question those decisions.
B. Attorneys Are Generally Not Liked by Juries
Another substantial hurdle an attorney faces in representing clients facing legal malpractice claims is the public's perception of attorneys. Defense counsel in legal malpractice claims must understand that, going into a jury trial, the deck is often stacked against him.36 Public opinion polls show that the opinion of lawyers is not much higher than that of used car salesmen. The people who hold these opinions are the people who will be on your jury.
In presenting your client's defense, it is important that you do your best to avoid playing into the lawyer stereotypes. One of these stereotypes that has a tendency to surface during litigation is that lawyers tend to be more argumentative, by nature or by training, than the average lay witness.37 In preparing your client for trial, you should devote considerable time to preparing him to answer questions succinctly, directly and without the appearance of arrogance or argument. The public's, and more importantly the jury's, opinion of your client will often have as much to do with the outcome of the case as the underlying facts. Allowing your client to pontificate on the stand or to give answers that are legally correct, but that seem to the jury to avoid the actual question, can be a fatal error in the defense of his claims. A successful defense lawyer in legal malpractice claims gets the jury to see his client not as a lawyer, but merely as any other professional who is doing his best. That distinction may be a slight one, but it can be very important.
While much of this article has been dedicated to describing the pitfalls and problems associated with legal malpractice and defending attorneys subject to those claims, it is good to end on a more positive note. In defending legal malpractice claims, the legal malpractice defense attorney has the opportunity to work with the sort of client many attorneys rarely are fortunate enough to encounter. Legal malpractice defendants are always attorneys, and as such they are unusually knowledgeable as to the risks and uncertainties of the judicial process and of the demands of an active legal practice. This base of knowledge provides an attorney/defendant with an understanding of the challenges his defense counsel faces and, hopefully, with realistic expectations regarding the outcome of the case. For this reason, and for the many reasons noted above, representing an attorney defending a legal malpractice claim can be one of the most challenging and rewarding experiences an attorney will have in the practice of law.
1 Paul E. Kovacs is a partner in Armstrong Teasdale's litigation practice group. He concentrates his practice primarily in areas of construction, medical malpractice, product and professional liability. Mr. Kovacs is a Fellow in the American College of Trial Lawyers, a Fellow in the International Society of Barristers and is listed in The Best Lawyers in America for his work in legal malpractice and personal injury matters as counsel for both plaintiffs and defense.
Craig G. Moore is an associate in Armstrong Teasdale's litigation practice group where he focuses his practice in appellate, antitrust, and business litigation. Mr. Moore has extensive experience in complex securities and insurance matters as well as professional liability issues. Before joining Armstrong Teasdale, LLP, Mr. Moore served as a judicial clerk for the Honorable Ronnie L. White, Chief Justice, Supreme Court of Missouri.
2 John Leubsdorf, Legal Malpractice and Professional Responsibility, 48 Rutgers L. Rev. 101, 102-03 (1995).
4 Boatright v. Shaw, 804 S.W.2d 795, 796 (Mo. App. E.D. 1990).
4a Miller v. Ernst & Young, 892 S.W.2d 387, 388 (Mo. App. E.D. 1995).
5 Manuel R. Ramos, Legal and Law School Malpractice: Confessions of a Lawyer's Lawyer and Law Professor, 57 Ohio St. L.J. 863, 884-885 (1996). This lack of knowledge is not surprising, as the vast majority of law professors at ABA-accredited schools have little if any significant lawyering experience. This lack of experience at the instructor level undoubtedly contributes in at least some respect to the lack of knowledge relating to legal malpractice in the profession as a whole.
6 Id. at 874-875. Only three law schools in the United States accredited by the ABA even offer a course specifically geared toward the prevention of legal malpractice.
7 Id. at 886. Commentators have also attributed this relatively small number of cases to the fact that many, if not most, attorneys do not carry legal malpractice insurance. In cases involving small firms or solo practitioners, a lack of insurance can make the attorney essentially judgment-proof in claims involving significant recoveries, thus discouraging plaintiff's attorneys from even accepting the cases.
8 While ensuring that attorneys faced with legal malpractice claims are not subject to increasingly hostile juries, arbitration agreements also have the potential to limit the defenses available to an accused attorney. Because arbitration often reduces the scope of discovery and has little if any practical appealability, an attorney agreeing to binding arbitration before a claim is even brought may inadvertently relinquish important defenses to the legal malpractice claim.
9 While the specific topic of avoidance is beyond the subject of this article, it is worth noting that The Bar Plan has proposed "Ten Commandments" to follow in avoiding legal malpractice. They are: (1) Know your client; (2) Use your calendar and docket control; (3) Beware of potential conflicts of interest; (4) Set fees and document your time; (5) Maintain good client relations; (6) Confirm all important questions in writing; (7) Triple check all outgoing documents and files; (8) Do adequate research and consult experts; (9) Maintain high ethics and standards of practice; (10) Don't ever think it won't happen to you. The Bar Plan, Risk Management Handbook (1995). While no set of rules assures the avoidance of all legal malpractice claims, these commandments are an admirable starting point and would do much to avoid unwanted litigation with former clients.
10 98 S.W.3d 871 (Mo. banc 2003). Although the exchange between the Court and the attorney in Donaho borders on comical, the authors have found that it is unfortunately unexceptional in matters in which attorneys choose to represent themselves.
11 Id. at 872. The attorney was hired to assist his client in amending a child visitation order. While he drafted the necessary motion and forwarded it to his client for signature, he failed to take any further action in relation to the motion.
13 Id. The CDC had informed the attorney that remittance of the fee would be regarded as a mitigating factor in his disciplinary proceedings. As such, notice to the CDC was an effort to avoid disciplinary action.
14 Id. at 873.
17 Id. at 874.
18 David B. Wilkins, Who Should Regulate Lawyers?, 105 Harv. L. Rev.
799, 815 (1992).
19 Ramos at 897.
20 Id. This perception frequently leads to attorneys failing in their seemingly meritorious defense of legal malpractice claims.
21 It should be noted that on August 24, 2004, by order of Ronnie L. White, Chief Justice of the Supreme Court of Missouri, the Supreme Court of Missouri adopted a new subdivision of Rule 4-1.15. Subdivision (h) of Rule 4.1-15 requires:
A lawyer shall securely store a client's file for 10 years after completion or termination of the representation absent other arrangements between the lawyer and client. If the client does not request the file within 10 years after completion or termination of the representation, the file shall be deemed abandoned by the client and may be destroyed. A lawyer shall not destroy a file pursuant to this Rule 4-1.15(h) if the lawyer knows or reasonably should know that: (1) A legal malpractice claim is pending related to the representation; (2) A criminal or other governmental investigation is pending related to the representation; (3) A complaint is pending under Rule 5 related to the representation; or (4) Other litigation is pending related to the representation. Items in the file with intrinsic value shall never be destroyed. A lawyer destroying a file pursuant to this Rule 4-1.15(h) shall securely store items of intrinsic value or deliver such items to the state unclaimed property agency. The file shall be destroyed in a manner that preserves client confidentiality. A lawyer's obligation to maintain trust account records as required by Rule 4-1.15(a) is not affected by this Rule 4-1.15(h).
Rule 4-1.15(h) became effective January 1, 2005.
22 Ronald E. Mallen & Thomas P. Sukowicz, Protect Yourself From Suit: Knowing When to Say 'No' to a Questionable Client or Case Can Shield You From Legal Malpractice Claims, Trial May 2002, at 42, 44.
23 State ex rel. Chase Resorts v. Campbell, 913 S.W.2d 832 (Mo. App. E.D. 1995). Campbell held that proving the content of an attorney's legal advice was not necessary to prove reasonableness of fees, and thus the privilege relating to the content of the advice was not waived and was not discoverable. But see, Grewell v. State Farm Mut. Auto. Ins. Co., 102 S.W.3d 33 (Mo. banc 2003). In Grewell the Court allowed a plaintiff full access to the file maintained by their insurance agent and, in doing so, analogized that file to one kept by an attorney. In so doing, the Court may have inferred an expansion of the access clients are permitted to an attorney's work product.
24 See Corrigan v. Armstrong, Teasdale, et al., 824 S.W.2d 92 (Mo. App. E.D. 1992).
25 Jennifer Knauth, Legal Malpractice: When the Legal System Turns on the Lawyer, 35 St. Mary's L.J. 963, 970-71 (2004).
26 Miranda v. Arizona, 384 U.S. 436 (1966). Quote found at
Last visited 4-11-05.
27 David I. Dalby, Facing the Inevitable: Do's & Don't's for the Legal Malpractice Defendant, 3 No.1 Legal Malpractice Rep. 3 (1991).
28 Marsha L. Morrow & Martin T. Lee, How and When to Submit a Claim under a Professional Liability Policy, 1 No. 3 Legal Malpractice Rep. 7 (1990).
29 Telephone interview with Karen McCarthy, president and CEO of The Bar Plan (Oct. 28, 2004).
31 Marsha L. Morrow and Martin T. Lee, How and When to Submit a Claim under a Professional Liability Policy, 1 No. 3 Legal Malpractice Rep. 7 (1990).
33 David I. Dalby, Facing the Inevitable: Do's & Don't's for the Legal Malpractice Defendant, 3 No.1 Legal Malpractice Rep. 3 (1991).
34 Marsha L. Morrow & Martin T. Lee, How and When to Submit a Claim Under a Professional Liability Policy, 1 No. 3 Legal Malpractice Rep. 7 (1990).
35 Christopher T. Borgeson, The Lawyer As Defendant: How to Best Aid in Your Own Defense, 3 No. 3 Legal Malpractice Rep. 3 (1992).
37 Guy D. Calladine, The Lawyer's Lawyer, 3 No.1 Legal Malpractice Rep.
JOURNAL OF THE MISSOURI BAR Volume 61 - No. 3 - May-June 2005