The Best Way to Avoid a Legal Malpractice Claim
It’s an ethical dilemma that every lawyer will face at least once.
After a substantial settlement in a construction accident lawsuit, I missed an important deadline for serving a motion concerning a lien. As a result, my client lost his right to challenge the lien and in all likelihood, would have to pay a lien that he probably would not have had to pay…if I had done my job for him.
Deep down in my gut I knew I screwed up. I missed an important deadline for serving a motion and it cost my client money—not a huge amount, but money that he should have been his. It would have been easy to rationalize the mistake, but try as I might, I knew I had messed up and now I had to figure out what to do.
An Ethical Dilemma Faced by a Young Lawyer
The first choice (and one that was not immediately cast aside) was thinking of a way to cleverly explain what happened without accepting any fault—a lawyerly way of dancing around the truth. This was the easy way out.
The second choice entailed swallowing hard, admitting to my client I screwed up and letting the consequences fall where they may. And yes, this included informing my client that he had the right to file a legal malpractice claim and should retain independent counsel of his choice. Not so easy to do, especially facing consequences that likely would include a legal malpractice lawsuit and very possibly the loss of employment for yours truly.
In a nutshell, do I cover my ass or do what’s in the best interest of my client? I’d love to tell you the choice was clear and easy for me to make…but I’d be lying. After weighing each choice and looking at the pros and cons of my options, I had the strangest conversation with my client.
A Reaction that was Not Exactly What I Expected
After much thought, I came clean. I told my client that I screwed up and even though there was a rational explanation for my mistake (and there was), I had been paid to give him good advice and I failed. I advised my client that he should seek independent counsel concerning his right to bring a legal malpractice claim against my law firm and me.
What happened next was totally unexpected—my client started laughing hilariously. No, not just a chuckle or two—the kind of belly laugh that keeps going and takes time to slowly grind to a halt. At first, it wasn’t clear to me why this was funny until my client explained.
You see, my client came from next to scratch and didn’t have a penny to his name when he hired me. As a result of his settlement, my client bought a horse farm in Georgia and was living the life he always dreamt of. He told me, “I wouldn’t have any of this without you. You couldn’t force me to sue you.”
How Brutal Honesty Saved My Butt
Wow! This was not exactly what I expected. I was relieved, of course, but even more surprised by my client’s response. I thought my client would move fast to hire a malpractice lawyer and sue for every penny he could get. But instead, my client was understanding and did not cast blame.
How could this be, I thought? I had just handed my client the keys to a strong legal malpractice case and potentially a significant monetary recovery, and he chose understanding and compassion. As a young, relatively inexperienced lawyer, this baffled me at first—perhaps my client was a rare bird who simply hated litigation, but I knew this wasn’t true.
But then how could I explain his seemingly irrational response? Had I danced around the truth and tried to rationalize my mistake (or even worse, hide my mistake), it almost certainly would have led to a lawsuit. Once my client discovered my malpractice, he would have been foaming at the mouth and on the phone to hire the first malpractice lawyer he could find.
In hindsight, I now know that the key to handling any mistake is facing the brutal truth and being honest. Trying to find excuses and rationalizing your mistakes just doesn’t work…and will inevitably lead to the legal malpractice lawsuit you were trying to avoid.
How to Handle a Colossal Mistake
In 1982, seven people in suburban Chicago died from Tylenol capsules laced with cyanide. The police investigation revealed that the Tylenol capsules had been poisoned after they had left the plant of their maker, Johnson & Johnson. No one could blame the cyanide poisoning on J&J, but they were facing a public relations disaster with the pain reliever that was their #1 money winner.
J&J took action that was stunning: they withdraw all of the Tylenol that they sold in the U.S. and began a massive campaign to inform consumers of the dangers of Tylenol. That’s right, even against their interests, J&J was proactive by putting the safety of consumers over the interests of their shareholders.
Brutal Honesty Pays Off Big-Time
Less than 12 months after the deaths, Tylenol reclaimed its position as the #1 over-the-counter analgesic and the stock price of J&J marched higher than it had been before the poisoning. But much better than it stock price, J&J became known for putting the safety of consumers over its own self-interests.
Instead of a public relations nightmare, J&J turned this tragedy around with brutal honesty and a public relations campaign that ignored their stock price and the concerns of their shareholders. Yes, it would have been easy for J&J to deny wrongdoing and lay blame upon a crazy criminal. But by doing the right thing, J&J used this nightmare to lay their claim to an even stronger position in the market.
And there’s no reason that we, as lawyers, can’t do the same thing. Yes, honesty pays off when you screw up…and it just might be the one thing that saves your butt from a malpractice lawsuit.