In what ways can attorneys be negligent, leading them to fall into legal malpractice?
Since the practice of law in almost every instance involves the exercise of professional judgment, even the most diligent lawyers can be at risk of claims by dissatisfied clients. No practice area is immune and malpractice claims can arise in almost every conceivable legal context. But two common situations that give rise to claims involve: (1) Lawyers getting involved in new practice areas that are outside their main areas of practice; and (2) Lawyers representing multiple clients in both transactional and litigation settings.
I believe that all lawyers should obtain and maintain malpractice insurance for their own peace of mind and to protect their clients’ interests.
What things would you advise clients to look out for, in regards to the above?
New Practice Areas: While lawyers can certainly expand into new and emerging areas of the law, I generally advise that “dabbling” in specialized practice areas can be problematic, even for the most experienced lawyers. Just because they have not handled a particular type of case or transaction does not mean that a lawyer has to refer a prospective client elsewhere, but any time that a lawyer is getting involved in a new area for the first time, he or she needs to take the necessary steps to become informed on the relevant law and procedures in the practice area. That may involve seeking the counsel of other lawyers in that type of practice or undertaking preliminary research into the area of practice to ensure that they have the requisite competence to practice in that area, consistent with the professional rules of ethics.
Having to handle a malpractice claim themselves can put both great personal and financial stress on a lawyer.
Multiple Client Situations: Anytime that a lawyer represents more than one client in an engagement the need for clarity and transparency in communications with his or her clients is exponentially heightened. Joint representation situations often arise when lawyers represent family members in personal matters, such as estate planning, or in small business situations, where the interests of one individual owner may diverge from the interest of the business. At the outset of the lawyer’s engagement, the joint clients often believe that they will be able to agree or work through issues where their individual interests may diverge, but since the lawyer cannot choose sides between two clients, he or she must explain the potential conflicts that can arise in every joint representation situation and document that advice at the outset of the relationship. The clients also need to understand that the lawyer cannot keep secrets relating to their legal relationship from the other client throughout the engagement.
Is legal malpractice insurance necessary?
I believe that all lawyers should obtain and maintain malpractice insurance for their own peace of mind and to protect their clients’ interests. Having to handle a malpractice claim themselves can put both great personal and financial stress on a lawyer. Defence lawyers are often able to spot defences that those not familiar with malpractice cases might miss and can handle the matter with greater efficiency and less cost and stress.
BARRY O’NEIL
Barry O’Neil is a trial attorney, who is certified as a Civil Trial Specialist by the Minnesota State Bar Association. He represents professionals in malpractice claims with an emphasis in legal malpractice. Mr O’Neil’s practice also involves the resolution of complex commercial disputes, employment-related issues and insurance claims.
