Reduce The Risk Of Malpractice Claims

Legal malpractice claims just keep coming. Rarely does a week go by without another article about a new high-profile legal malpractice lawsuit. Sometimes, these claims are the result of a simple mistake. Claims can arise when an attorney is overworked and may be tempted to pay less attention to the details of his practice. Yet most claims do not involve any mistake or error by the attorney. Well over one-half of all malpractice claims against attorneys lack any merit.1

While meritless claims are usually dismissed or abandoned, that's little comfort to attorneys who have had a claim brought against them. After all, when a claim is made, attorneys must deal with it, investing time to defend the claim, reporting it to colleagues and insurers, and paying whatever deductible might apply. Needless to say, it is a distraction from the practice of law.

Beyond that, claims leave a lasting impact. From the moment a legal malpractice claim is made, attorneys must answer "yes" to the question, "Has a claim ever been made against you?" This answer does not change even if the claim has been dismissed or abandoned.

The bad news is that most attorneys will face more than one claim over the course of their careers. The good news is that there are things attorneys can do to reduce the risk of having a legal malpractice claim made against them. An important first step is recognizing the difference between actual legal malpractice and a legal malpractice claim.

Legal malpractice occurs only when an attorney's breach of a professional duty proximately causes damages.2 Anything involving less than all three elements—duty, breach, and proximately caused damages—is a claim but is not malpractice.3 Moreover, in Colorado, unless it involves fraud or malice, with few exceptions, a legal malpractice claim must be based on the existence of an attorney-client relationship between the plaintiff and the defendant.4

Duty

Attorneys' duties are in a state of flux. Certainly, attorneys owe their clients a professional duty. More uncertain is the question of to whom, besides their clients, attorneys owe a duty. It is clear that attorneys do owe some duties beyond the duties to their clients.5 For example, Rule 1.18(b) of the Colorado Rules of Professional Conduct states, "Even when no client-lawyer relationship exists, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation." Generally, however, attorneys do not owe a duty of reasonable care to nonclients, including prospective clients.6

Most often, this amorphous duty risk arises out of a transaction involving only...