Five Mistakes To Avoid When Facing A Legal Malpractice Claim

Legal malpractice claims are bad enough. Unfortunately, many attorneys respond in a way that makes them worse, transforming legal malpractice claims into litigation nightmares. A straightforward claim that might have been resolved early instead becomes expensive and complex, with significant exposure and high defense costs.

To prevent this from happening, attorneys should avoid these five common mistakes upon learning they are the subject of a legal malpractice claim.

Assuming a Claim Will Become a Lawsuit

Contrary to public perception, the filing and prosecution of a legal malpractice lawsuit is not easy. In contrast, the mere assertion of a legal malpractice claim requires little. The difference between a lawsuit and a claim is important.1

Data confirm that most legal malpractice claims lack merit.2 Sometimes, a client will threaten to bring a legal malpractice claim to avoid paying a bill or because he is unhappy with an outcome of his matter. However, neither scenario necessarily supports a viable legal malpractice lawsuit.

Moreover, the fact that a claim arises from an actual mistake by the attorney, without more, is insufficient to support a legal malpractice lawsuit. To prove malpractice, the plaintiff must establish that the mistake proximately caused him damage.3

Even then, financial or other pressures may prevent a client from filing suit. A lawsuit involves fixed costs, including filing fees. In Colorado, within 60 days of commencing a legal malpractice lawsuit, the plaintiff must file a certificate of review stating that she has conferred with a legal professional who, after reviewing the known facts, has concluded that the filing of the malpractice claim does not lack substantial justification.4 These requirements impose costs on anyone seeking to pursue a malpractice lawsuit in Colorado.

A plaintiff in a malpractice case faces other burdens. Putting aside the out-of-pocket expenses, a client who sues his attorney waives all attorney-client privilege protections.5 This typically means that everything the client told the attorney can be disclosed. In addition, the client must spend time on litigation, which may further discourage him from filing a legal malpractice lawsuit.

Finally, a client must determine that a claim is worth the risk and hire counsel to file suit. Moreover, after hiring counsel, the client and her legal malpractice attorney must decide that the return on investment is worth the money and time necessary to litigate the claim.

Admitting Legal Malpractice

The duty to keep clients informed includes self-reporting when mistakes happen.6 However, there is a fine line between the duty to report facts material to the representation and admitting legal malpractice, which significantly increases the likelihood that the client will file suit.

Attorneys who fail to timely report mistakes face significant risks...