At some point during your legal career, it is inevitable you will make a professional mistake. Yet it can be hard to know what to do about a pending malpractice claim that’s on the horizon. Sometimes attorneys respond in ways that exacerbate the error, so it’s important to know what actions you should take to that can minimize and repair the damage.
Here are 7 ways you can better manage this unnerving situation:
1. Act as Soon as You Discover the Error
Professional errors are not uncommon. Even simple legal matters involve numerous opportunities for an attorney to make a mistake. It is important to take positive, proactive action immediately upon discovering your error. Timely response can make all the difference for the outcome of the situation.
2. Contact Your Insurer for Assistance
Time matters when you are dealing with a pending malpractice claim. Avoid the “wait and see” approach, which often makes matters worse. While you may be concerned about the cost of defending a claim or unfamiliar with your policy coverage, don’t let this become an excuse for inaction.
The sooner you inform your insurer, the more time they have to get in front of the problem and help you achieve the best possible outcome.
3. Determine What Coverage Is Available
Investigate your coverage benefits right away. Even before a formal claim has been made and before a lawsuit has been filed, you may have access to valuable benefits. Waiting only does a disservice to your cause.
Your carrier may offer defense coverage for disciplinary proceedings as well as pre-claim assistance, which could potentially minimize or prevent further legal action altogether.
4. Be Honest and Transparent About Mistakes
Remember that honesty is the best policy. Nearly all lawyers will make an error in their careers, but some will compound the damage by attempting to hide or conceal the mistake.
Concealment is a serious breach of legal ethics and may also create a conflict of interest between the attorney and the client. Legal malpractice claims in which an attorney has attempted to hide or conceal an error often result in serious consequences.
You can avoid such an outcome by being honest and transparent about mistakes.
5. Advise Your Client and Insurance Carrier Promptly
Notify your client and insurance carrier promptly when a mistake is identified. Remember that advising of a mistake is not the same as admitting that legal malpractice has occurred.
Clients are more likely to be understanding when their attorney is honest and transparent about a mistake. Realistically, clients will also look for compensation for damages, so informing your insurance carrier early can also lead to better outcomes.
6. Allow Your Insurer to Do Its Job
Provide any client who has filed a legal malpractice suit against you with the information of your insurance carrier so they can handle the matter. It is inadvisable, even for experienced attorneys, to attempt to defend against your own malpractice claim.
Experienced professional liability claims handlers specialize in this area of law, understanding both what constitutes a viable malpractice claim and what other reasons may cause a client to threaten malpractice.
7. Take Proactive Steps to Avoid Claims
Attorneys can help minimize the risk of future malpractice claims with some proactive steps.
Investigate trends and sources of malpractice claims to help limit your exposure. Look for benefits offered by your carrier to insureds, such as complimentary or discounted risk management services, question hotlines, best practice resources and CLE courses.
Avoiding errors is the best way to control your risk of a claim, and these resources can help.
Knowing what to do about a pending malpractice claim can make all the difference in the outcome. Educate yourself on how to avoid a claim and where to turn if a claim is filed.
Your malpractice insurance carrier can be an expert and an ally, not only in a time of crisis, but even before a claim has been filed. If you have questions about a potential error or claim, contact your trusted malpractice insurance carrier for guidance right away.
Attorneys who act quickly and professionally when there is an error, minimize damage to the client and give their insurer the best chance of defending against the claim.
Information provided by Lockton Affinity is not intended as legal advice.