Brinks Attorney Legal Malpractice?

[Jim Rojas <jrojas@xxxxxxxxxxxx>]

http://www.mobar.org/aafe89a7-a95c-4a28-a3ec-f065c1a9fa7c.aspx

by Paul E. Kovacs and Craig G. Moore


Each year, more than 20 percent of attorneys in private practice are
faced with the potential of having to defend against a legal malpractice
claim.2While, as with most litigation, the vast majority of these claims
are settled, those claims and settlements can often be substantial. With
legal malpractice claims and settlements reaching into the tens of
millions of dollars, and with attorneys facing juries that are
frequently hostile to their defenses, the practice of defending legal
malpractice claims is one that provides unique challenges.3

In legal malpractice suits, both the attorney accused of malpractice and
the attorney defending his client/colleague have their traditional roles
disrupted. The accused attorney, so often the zealous advocate for his
client, takes on the role of a client and as such his duties are to
honestly assist his attorney in the preparation of his defense. These
new duties run counter to his natural inclination to take control. The
attorney representing his accused colleague, while retaining his
traditional role as advocate, is faced with the special challenges
associated with representing a client who not only has a detailed
knowledge of the process, but who also has extensive personal knowledge
from which to critique and question his attorney's performance. This
unique relationship, between the attorney accused of legal malpractice
and the attorney who represents him, provides the subject of this article.

I. The Elements of Legal Malpractice

While the focus of this article is the recommended practices for those
attorneys faced with a legal malpractice claim and the attorneys who
defend them, initially, if only as a review, it is good to consider the
essential elements of a legal malpractice claim. The "elements of a
legal malpractice action are: '(1) that an attorney-client relationship
existed; (2) that [the] defendant acted negligently or in breach of
contract; (3) that [the defendant's] acts were the proximate cause of
the plaintiff's damages; [and] (4) that but for [the] defendant's
conduct the plaintiffs would have been successful in the prosecution of
their [underlying] claim.'"4

A thorough understanding of the elements of the cause of action may do
much to forestall the initiation of a claim. Specifically, attorneys
should constantly monitor the existence and status of their
relationships with clients and former clients so as to ensure that they
do not inadvertently subject themselves to unexpected duties, and also
so they avoid the inadvertent breach of duties currently owed to
clients. Avoidance of misunderstandings that lead to malpractice claims
can significantly be achieved by striving to accomplish three common
sense goals: 1) attorneys should strive for clarity in defining and
documenting the scope of the proposed engagement; 2) attorneys should
strive for clarity in specifically defining who is, and who is not,
being represented; and 3) attorneys should always conduct careful
conflict of interest screening on client intake, and this conflict
screening should continue throughout the representation. These goals of
clarity and constant monitoring can help avoid many conflicts before
they blossom into legal malpractice claims.

Aside from focusing the attorney on the relationships that give rise to
many legal malpractice claims, these elements also introduce an area
that is important to understand in the defense of legal malpractice
claims: the "case within the case." The "case within a case," while not
specifically mentioned as such, is set forth in the final element of the
cause of action, which requires that the plaintiff prove that, but for
the defendant's conduct, the plaintiff would have been successful in the
prosecution of the underlying claim. To successfully establish this
element, a plaintiff must simultaneously prove not only that their
former counsel was negligent, but also that they would have been
successful in the underlying action. To do this, the plaintiff in the
legal malpractice action must essentially try, and win, the underlying
action while pursuing the legal malpractice action against their former
counsel in the same case.

Recognition of this case within a case provides defense counsel an
additional opportunity in which to assist his client, as well as an
additional hurdle for the legal malpractice plaintiff. Moreover, defense
counsel may find that bifurcation of the trial, so as to force
plaintiffs to prove they would have been successful in the underlying
claim before the negligence issues are even considered, may greatly aid
in the defense of their client. If counsel can prove that the
plaintiff's position in the underlying action was untenable, the
consequence of subsequently alleged legal malpractice is reduced or even
eliminated. Similarly, this requirement prevents plaintiffs in legal
malpractice claims from seeking recovery from their former counsel
merely because the prior representation was unsuccessful. Instead,
plaintiffs are required to prove that, but for the negligence of their
counsel, they would have been successful in the prior matter.

This requirement also provides an opportunity for those defending
against legal malpractice claims to insert an argument for their client
that may reduce or even eliminate damages. In most instances, damages
from legal malpractice claims are purely economic. As such, if during
the case within the case, defense counsel can establish plaintiff was
contributorly negligent, that negligence may be a complete defense.4a

Aside from understanding the basic elements required to prove a legal
malpractice claim and the general areas in which opportunities arise for
defense counsel to assist their clients in defeating those claims, it is
also of some assistance to understand where legal malpractice claims
find their origins. If practicing attorneys and their legal malpractice
counsel can recognize the origins of claims, they can be better prepared
to prevent their occurrence.

II. The Origins of Legal Malpractice

The problems that result in many legal malpractice suits find their
origins as far back as the first days of an attorney's practice.
Straight from law school and the bar exam, or with luck a judicial
clerkship, new attorneys are rife with knowledge of the law but know
little, if anything, about representing a real client in a real
lawsuit.5 This lack of knowledge provides fertile ground upon which to
sow the seeds of future legal malpractice claims; indeed, the avoidance
of those claims is rarely a subject with which a new attorney has had
any experience.6

Considering the relative inexperience of new attorneys and the lack of
formal education geared towards preventing legal malpractice, it may be
legitimately wondered why more legal malpractice claims are not filed
every year. While one might like to attribute this relatively small
number of cases to excellent mentoring by experienced partners and
senior associates, or perhaps to the diligence and discernment of new
attorneys, the more likely explanation is not nearly as comforting.
Because the vast majority of all cases are settled and never reach
trial, many instances of legal malpractice are obscured by settlement
agreements or are never discovered by unsuspecting clients.7

Moreover, some firms have initiated the practice of including binding
arbitration agreements in their engagement letters. These arbitration
agreements preclude many legal malpractice disputes, and the
circumstances from which they originate, from ever being publicly
disclosed. While the wisdom of requiring binding arbitration agreements
in engagement letters may be questioned,8 the fact that they preclude
numerous disputes from being publicly reported cannot.

By no means do we suggest legal malpractice is the norm, but
unfortunately it does happen and we as attorneys must do all we can to
prevent its occurrence.9 The purpose of this article is to bring
attention to legal malpractice in the hopes of reducing its occurrence;
to assist those attorneys who do find themselves subject to a legal
malpractice claim in defending against that claim; and to reveal some of
the problems faced by a defense attorney in representing other members
of the profession accused of legal malpractice. This final aspect hopes
not only to assist those with a practice defending legal malpractice
suits, but also to educate those attorneys who are subject to the legal
malpractice claims as to the unique difficulties faced by their
attorneys in defending legal malpractice claims.

III. Suggestions to Attorneys Subject to a Legal Malpractice Claim

While being sued is almost always an unwelcome and unpleasant
experience, an attorney who is sued for legal malpractice faces
particular challenges. Suits for legal malpractice, at their best,
accuse the defending attorney of misjudgment and quite often go further
into accusations of incompetence and lack of professional ability or
integrity. These claims are often taken by the accused attorney as a
direct attack on his ability to perform the required duties of his
profession and are understandably taken quite personally. It is
important for the accused attorney to remember those words of advice
that he would undoubtedly give any client coming into his office for the
first time upon discovering they had been sued: "Calm down, it will be
alright, you will get through this."

Lawyers who find themselves the subject of a legal malpractice claim
first must understand that their accustomed role as advocate is
drastically altered in their defense of legal malpractice claims. The
first instance in which lawyers often fail to recognize this alteration
of roles is at the very onset of the legal malpractice case. Absent
unusual circumstances, attorneys do not usually anticipate suit being
brought by their former clients. Faced with an unsatisfied client or,
worse yet, service of a filed petition for professional negligence, the
first reaction of most attorneys is to contact their former client in an
attempt to remedy what they assume is assuredly just a misunderstanding.
This is often the attorney's first mistake in dealing with a claim for
legal malpractice.

A. Hire Counsel

Hire a lawyer. This is likely the first advice any attorney would give
to any unrepresented individual finding themselves a defendant in a
lawsuit. Yet, this seemingly fundamental first step in the litigation
process is one that many attorneys faced with legal malpractice claims
often neglect. While it is likely that every lawyer thinks they have the
basic skill and knowledge necessary to defend themselves, attorneys are
highly discouraged from attempting to represent themselves against any
legal malpractice claim. The first amongst the innumerable factors
weighing against self-representation is that it is almost impossible for
any lawyer/defendant to exercise the same objectivity and consideration
in relation to a case against him as he would in evaluating a matter
filed against one of his clients. As merely an example, the authors are
reminded of a recent attorney disciplinary proceeding before the Supreme
Court of Missouri.

In In re Donaho, an attorney charged with professional misconduct chose
to represent himself in his disciplinary proceeding before the Court.10
In an underlying representation, the attorney had received payment from
a client for services that the attorney never provided.11 After the
client received a small claims judgment and after the initiation of
proceedings before the Chief Disciplinary Counsel ("CDC"), the attorney
agreed to reimburse his former client.12 In ostensible compliance with
his agreement to reimburse his former client, the attorney purchased two
separate money orders totaling the amount owed the former client and
faxed copies of those money orders to the CDC as proof of payment.13
After faxing the copies to the CDC as proof of payment, the attorney
failed to mail the money orders to the former client and, instead,
cashed those money orders for his own benefit.14 After failing to
receive payment from the attorney, the former client filed another
action against him for recovery of the unearned fees. After learning
that the money orders were never delivered to the client, the CDC
instituted additional proceedings.15

The attorney represented himself before the Supreme Court of Missouri in
the proceedings relating to his failure to deliver the money orders to
his former client, and his attestation to the CDC that he had in fact
delivered the same. In those proceedings, the attorney specifically, and
repeatedly, denied that his attempt to convince the CDC that he had
reimbursed his former client by fabricating and faxing the money orders
as proof of payment was a "dishonest" act.16 The attorney "repeatedly
refused to acknowledge that his obvious fabrication could be
characterized as 'dishonest,' preferring instead to describe it as
merely 'foolish'"17

While the authors will refrain from comment as to the wisdom or
dishonesty of the attorney's underlying acts, we think this exchange
exemplifies why it is essential that attorneys seek outside
representation when faced with claims of professional negligence. This
exchange is, unfortunately, all too typical of the discourse in
proceedings in which attorneys represent themselves and would likely
have been avoided had the attorney been represented by counsel. The
attorney's extremely personal involvement with the proceedings precluded
his recognition of the obvious incongruity of his testimony. An outside
attorney whose objectivity was not skewed by personal involvement would
surely have been more adept at handling the Court's questioning.

Aside from the personal nature of almost all legal malpractice claims,
the defendant attorney is also encumbered by his own personal
expectations for the underlying claim. Fundamental to the Rules of
Professional Conduct is the principle that attorneys, as officers of the
court, may not advance fallacious claims or defenses on behalf of their
clients.18 While one might think that this rule would serve to protect
the accused attorney by potentially giving his statements and conduct a
presumption of truthfulness and honesty, the rule is often turned
against him in his defense against legal malpractice claims.

Legal malpractice claims inevitably result from actions that were not
initially successful in the eyes of the client. These failures result
not only from adverse rulings or verdicts, but also from favorable
rulings that do not attain the level of success the client anticipated.
In fact, optimistic attorneys often encourage their client's
anticipation and, in so doing, invite the potential for legal
malpractice claims. This most frequently occurs during the initial
client intake consultation. During client intake, the attorney's desire
to get the business leads him to optimistically opine as to the value of
the case and usually discusses a number the client wants to hear. This
can come back to haunt even the most seasoned attorneys. By
optimistically responding to the frequently asked question of "What's it
worth?" with a large dollar figure or estimated amount of recovery, the
unsuspecting attorney sets a potential figure for damages in any
subsequent legal malpractice claim. Even if a client were to receive a
verdict in the high six figures, they will likely be unsatisfied if they
were expecting millions. For this, and likely many other reasons,
attorneys are ill-advised to respond to that initial question with
anything but the most conservative estimate, all the while couching that
estimate in the reality that all cases proceed differently and that
anything can happen.

Regardless of the assumed probability of success in the underlying
action and regardless of the diligence and skill of the attorney in
advocating his client's position, there is inevitably a winner and a
loser in each judicial battle. Because the Rules of Professional Conduct
prohibit attorneys from bringing any action or asserting any defense
that they in good faith do not believe is meritorious, it is inherently
true that an attorney cloaks each of his clients' claims and defenses
with his professional approval. This approval gives at least the
appearance that a former client's claims had merit and that the now
disgruntled former client has good reason to question the failed outcome
of the previous suit. This encumbrance provides yet another hurdle for
the legal malpractice defendant.

Because the attorney was required by the professional rules to assert
only meritorious claims and defenses in the underlying action, the
plaintiff's claims that the attorney defendant committed malpractice are
often difficult for that attorney to counter without the aid of counsel.
While there is a general knowledge among the courts that the mere fact
that a claim or defense is meritorious does not ensure its success, that
knowledge is often overshadowed in legal malpractice suits. To defend
against any claim for legal malpractice, attorneys are faced with the
uncomfortable challenge of arguing against the position that they
previously advocated. To succeed in their defense of the legal
malpractice claim, attorneys are essentially forced to argue that the
court's ruling against their client below was correct even though it was
contrary to the position they advocated in the underlying matter. In
essence, attorneys defending legal malpractice claims are required to
prove that their client should have lost the underlying case. Aside from
the seemingly contradictory representations to the court, this also
requires attorneys to directly challenge their former client as to the
validity of his claim, a stance that often proves uncomfortable.

Representation by separate counsel allows the legal malpractice
defendant to avoid this direct challenge to his previously asserted
position. Counsel for the accused attorney is concerned only with the
representation of the legal malpractice client. This gives the attorney
the same zealous advocate that the plaintiff enjoys without the accused
being forced to directly assail his prior positions. Representation also
allows the defendant attorney the advocacy of one who does not now, and
has never owed duties to the plaintiff. While the defendant attorney may
be procedurally relieved of his duties to the plaintiff in the current
legal malpractice action, it is undoubtedly easier for the attorney's
defense counsel to challenge the merits of the plaintiff's underlying claim.

B. Be a Good "Client"

It has been said that lawyers make absolutely the worst clients. "They
[are] terrible witnesses," they unnecessarily dissect seemingly simple
questions, and appear to be "lying even when they [are] telling the
truth."19 Jurors frequently rule against attorneys in actions brought by
former clients "unless there [is] a written document supporting the
lawyer's side of the story."20 Because an attorney defending against a
legal malpractice claim starts his defense with the burden of having to
avoid these and many other unflattering perceptions, it is important
that all legal malpractice defendants attempt to assist their defense
counsel in whatever manner possible. However, the assistance the
attorney accused of legal malpractice should provide his attorney is not
likely that which first comes to mind.

As a defendant in a legal malpractice claim, the attorney, like all
defendants, best assists in his defense by fully and completely
disclosing all available information to his lawyer and promptly
responding to his requests. Although it may seem to be sophomoric
advice, it is important for attorneys accused of legal malpractice to
remember what kind of clients make their lives easier and what clients
make the most positive impressions to the court, and particularly to the
jury.

Moreover, it is also important for attorney/defendants to remember what
they likely tell each of their new clients: "Retain all potential
evidence and avoid discussing the case with anyone." While this is in
some respects merely an extension of the prior advice to hire an
attorney, this advice is especially important for the attorney/defendant
because there are numerous pitfalls that could result from improper
discussions, communications or missing evidence.

The retention of all documents is of utmost importance, not only because
destruction of the evidence is undoubtedly against the law (and almost
always reflects poorly against the party who is accused of destroying
the documents), but also because it is likely that these documents are
the attorney's main source from which to display his competence in the
representation of his former client.21 "A lawyer's file . . . may be the
most crucial evidence of what he or she did or failed to do."22 However,
it is important to consider privilege and work product issues when
considering the use of the client file in defense of any legal
malpractice claim. While anticipatory, at-issue waiver of the
attorney-client privilege occurs where the client places the subject
matter of the privileged communications at issue, only the privilege
related to those areas of the file directly related to the claimed
malpractice is waived.23

When defending legal malpractice claims, it is important for the
attorney to consider and protect privileged documents and material, as
disclosure of protected material that the attorney incorrectly assumes
is subject to the at-issue waiver could result in additional grounds for
legal malpractice recovery. It is also advised that the attorney
carefully consider his own rights and obligations in turning over client
files in response to legal malpractice proceedings. Under Missouri law
an attorney is not required to reveal and produce opinion work product
containing his mental impressions, but instead is required only to
produce the end product of the representation and the documents
necessary to understand that product.24 Accordingly, an attorney may
properly refrain from producing documents containing his mental
impressions and, in so doing, may avoid "fishing expeditions" on which
plaintiffs seek to assert additional claims.

It should also be remembered that in legal malpractice proceedings
attorneys are held to standards of documentation that very few actually
meet in practice. Given the opportunity, a plaintiff's lawyer can often
find some error or omission within the attorney's file.25 An attorney
who keeps copious notes and extensively documents client communications
and events related to the matter not only provides himself with
substantial evidence in defense of his competence, he also does much to
avoid the initiation of legal malpractice proceedings in the first
place. Well-organized attorneys with extensive documentation systems
often avoid the malpractice claim before it ever materializes.

C. Do Not Attempt to Communicate or Settle Claim Directly With the Plaintiff

When faced with an actual or potential claim for legal malpractice, it
is important for the accused attorney to recognize the seismic shift
that has occurred in his relationship with his former client. While
initially it is true that open lines of communication do much to avoid
legal malpractice claims, it is important for attorneys to recognize
that once a claim for legal malpractice is threatened or filed his
relationship with the client has indeed changed. This realization is
often difficult, as the attorney may feel that the claim is simply a
misunderstanding or a miscommunication between the parties that can be
remedied by the attorney explaining the situation and persuading the
plaintiff to withdraw the claim. Although there may indeed be a
misunderstanding, it is likely too late for simple explanations to
remedy the situation, and the attorney's attempts may do more harm than
good.

First, it must be remembered that communications to the disgruntled
client are not privileged and, much like the famous Miranda warnings,
"Anything you say can and will be used against you in a court of law."26
Indeed, it is likely that the initial proclamation of the Miranda
warnings may also be the most appropriate advice to counsel facing legal
malpractice claims. You have the right to remain silent.

While it is understandable, and in fact laudable, that a conscientious
attorney would seek to correct what he deems to be a misunderstanding
between his former client and himself, his expressions of regret as to
that perceived misunderstanding may later be recalled as an admission of
liability when the former client is questioned about the conversation.
Even worse, efforts to settle a potential claim with an unrepresented
former client have the potential to result in charges of undue pressure
or duress, and thus additional liability when the former client finally
seeks representation.27 For these reasons it is important that the
accused attorney avoid directly communicating with the former client
after the initiation of legal malpractice proceedings becomes likely.
Honest attempts to cure what the attorney sees as a misunderstanding can
become testimonial nightmares when re-examined in a later trial.

D. Informing Your Malpractice Insurer of Potential Claims

When faced with a potential malpractice claim, an attorney faces many
difficult decisions, one of the most important of which is deciding if
and when the attorney should inform his insurer of a potential claim.
Many professional liability insurance policies covering legal
malpractice are of the claims-made variety. A claims-made policy does
not cover a specific period of time relating to the occurrence of the
alleged malpractice, but instead covers when a claim for professional
negligence is actually made against the insured.28 Most claims-made
policies require that the insured provide written notice of the claim
within a specified time after first learning of the potential claim.
These policies also allow for the coverage of claims actually made after
the expiration of the policy as long as the insured attorney gave notice
of the facts and circumstances that might give rise to the claim during
the covered period. Prompt notification to the insurer of potential
claims ensures coverage.

As such, it would seem to be advisable to notify your insurer of every
instance that could possibly result in a potential claim so as to ensure
coverage. In fact, this is what insurers suggest. Karen McCarthy,
president and CEO of The Bar Plan Mutual Insurance Company, suggests
that attorneys notify their insurer "as soon as they are aware of any
activity or occurrence that could arise in a claim."29 Aside from the
requirement included in almost every professional liability policy that
attorneys must report every "incident," McCarthy further encourages
early reporting so that the attorney can benefit from their insurer's
"claim repair" or "claim remedy" expertise.30 Specifically, early
incident reporting is encouraged because quick action by the insurer's
experts can help avoid further damage to the potential plaintiff and, in
many cases, can help the insured salvage the relationship with the client.

Unfortunately, many professionals are hesitant to contact their insurer
as early as is suggested. Many believe that, like automobile or home
owner policies, notification of potential claims that never materialize
can expose the insured to higher insurance premiums. McCarthy assures
this is generally not the case. Aside from the fact that most
professional liability policies require incident reporting, McCarthy
indicates that The Bar Plan, and most other professional liability
insurers, do not alter or adjust their insured's rates based upon
reporting incidents that are reported but never materialize into actual
claims. Accordingly, McCarthy says that early reporting has the
potential to avoid many claims, and reduce others, all the while having
no adverse consequences to the reporting attorney.

As the prior references to incident reporting indicate, the filing of a
lawsuit is not a prerequisite for the existence of a claim under a
professional negligence claims-made policy. Generally, for purposes of a
claims-made policy, a claim is made when there is a demand for damages,
fees, for further services, or for the correction of a failure in prior
representation that the former client alleges caused injury.
Specifically, there is substantial case law that has defined "claim" as
a demand received by the insured for money or services, including the
service of suit or institution of arbitration proceedings against the
insured.31 That definition has been adopted by, and included in, many
claims-made policies. However, the occurrence of a formal claim is not
required before you seek assistance from your insurer. Instead, it is
likely the best policy is to inform the insurer as soon as any potential
claim is identified.

In identifying potential claims, the test is likely one of
reasonableness: Is it more likely than not that an incident will lead to
a claim? Because the coverage of the claim depends upon your
notification of the insurer, the time to notify your legal malpractice
insurer of a potential claim depends significantly on the circumstances
of the particular dispute.32 In matters where the validity of the former
client's claim is fairly clear (such as a blown statute of limitations),
an insurer should be notified as soon as possible so as to facilitate
settlement of the claim, hopefully before a suit is even filed.33 In
other matters, where the former client's potential claim is
questionable, McCarthy indicates that it is still advisable to notify
your insurer as soon as you realize a potential claim exists.

While some attorney/client disputes may be adequately and appropriately
handled "in house" by involving other firm attorneys, as a rule it is
often better to be safe than sorry. Notifying your insurer promptly
ensures that your claims will be covered and may indeed help avoid
claims altogether. Further, by failing to report potential claims,
attorneys can deprive themselves of the benefit of their insurer's
experience in defending the claims.34 While we do not encourage the
submission of a "laundry list" to your insurer of every conceivable
instance in which you may have erred in your practice, an insured should
inform his insurer of any incident at the earliest possible occasion.

IV. Problems Faced when Representing Attorneys in Legal Malpractice Actions

A. Attorney Defendants Attempt to Control the Representation

Often defendants in legal malpractice claims tend to take an overactive
role in their defense. Because the attorney defendants possess the same
legal training and education, and because they are obviously concerned
about the outcome of their case, lawyer defendants often attempt to
insert their influence into each and every minute detail of the case.35
When an attorney defendant begins to opine on and critique their
attorney's performance in conducting routine discovery and motion
practice, it not only has the potential to decay that important
attorney/client relationship, but also can divert the attorney's
attention from more important issues presented in the case. When an
attorney's attention is diverted towards peripheral issues, important
matters may be neglected that ultimately hinder the overall representation.

In representing attorneys in legal malpractice actions, it is important
for the defense counsel to understand that his client enters the
relationship with a preconceived notion of how his case should be
handled. Because the client enters the engagement with these
preconceived notions of performance, it is important from the beginning
of the relationship that the attorneys discuss the roles each will be
taking in the litigation.

Each attorney approaches the opening and work up of a new file with
their own unique style, and communication regarding this process can
help avoid misunderstandings. Attorneys represent-ing other attorneys in
legal malpractice actions should initiate a dialog at the very outset of
the representation, taking special care to keep their clients informed
of the proceedings and the progress of the case. In some instances it
may even be possible that the attorney/client can assist with the
preparation of documents required in the litigation. However, in this
sort of cooperative representation it is important for the legal
malpractice defense attorney to ensure that the attorney/defendant
understands that, at the end of the day, the defense attorney has the
final decision on tactical strategy. If it is obvious to your client
that you are in control of the process and that you are actively
managing his case, he is much less likely to attempt to question those
decisions.

B. Attorneys Are Generally Not Liked by Juries

Another substantial hurdle an attorney faces in representing clients
facing legal malpractice claims is the public's perception of attorneys.
Defense counsel in legal malpractice claims must understand that, going
into a jury trial, the deck is often stacked against him.36 Public
opinion polls show that the opinion of lawyers is not much higher than
that of used car salesmen. The people who hold these opinions are the
people who will be on your jury.

In presenting your client's defense, it is important that you do your
best to avoid playing into the lawyer stereotypes. One of these
stereotypes that has a tendency to surface during litigation is that
lawyers tend to be more argumentative, by nature or by training, than
the average lay witness.37 In preparing your client for trial, you
should devote considerable time to preparing him to answer questions
succinctly, directly and without the appearance of arrogance or
argument. The public's, and more importantly the jury's, opinion of your
client will often have as much to do with the outcome of the case as the
underlying facts. Allowing your client to pontificate on the stand or to
give answers that are legally correct, but that seem to the jury to
avoid the actual question, can be a fatal error in the defense of his
claims. A successful defense lawyer in legal malpractice claims gets the
jury to see his client not as a lawyer, but merely as any other
professional who is doing his best. That distinction may be a slight
one, but it can be very important.

V. Conclusion

While much of this article has been dedicated to describing the pitfalls
and problems associated with legal malpractice and defending attorneys
subject to those claims, it is good to end on a more positive note. In
defending legal malpractice claims, the legal malpractice defense
attorney has the opportunity to work with the sort of client many
attorneys rarely are fortunate enough to encounter. Legal malpractice
defendants are always attorneys, and as such they are unusually
knowledgeable as to the risks and uncertainties of the judicial process
and of the demands of an active legal practice. This base of knowledge
provides an attorney/defendant with an understanding of the challenges
his defense counsel faces and, hopefully, with realistic expectations
regarding the outcome of the case. For this reason, and for the many
reasons noted above, representing an attorney defending a legal
malpractice claim can be one of the most challenging and rewarding
experiences an attorney will have in the practice of law.

Footnotes

1 Paul E. Kovacs is a partner in Armstrong Teasdale's litigation
practice group. He concentrates his practice primarily in areas of
construction, medical malpractice, product and professional liability.
Mr. Kovacs is a Fellow in the American College of Trial Lawyers, a
Fellow in the International Society of Barristers and is listed in The
Best Lawyers in America for his work in legal malpractice and personal
injury matters as counsel for both plaintiffs and defense.

Craig G. Moore is an associate in Armstrong Teasdale's litigation
practice group where he focuses his practice in appellate, antitrust,
and business litigation. Mr. Moore has extensive experience in complex
securities and insurance matters as well as professional liability
issues. Before joining Armstrong Teasdale, LLP, Mr. Moore served as a
judicial clerk for the Honorable Ronnie L. White, Chief Justice, Supreme
Court of Missouri.

2 John Leubsdorf, Legal Malpractice and Professional Responsibility, 48
Rutgers L. Rev. 101, 102-03 (1995).

3 Id.

4 Boatright v. Shaw, 804 S.W.2d 795, 796 (Mo. App. E.D. 1990).

4a Miller v. Ernst & Young, 892 S.W.2d 387, 388 (Mo. App. E.D. 1995).

5 Manuel R. Ramos, Legal and Law School Malpractice: Confessions of a
Lawyer's Lawyer and Law Professor, 57 Ohio St. L.J. 863, 884-885 (1996).
This lack of knowledge is not surprising, as the vast majority of law
professors at ABA-accredited schools have little if any significant
lawyering experience. This lack of experience at the instructor level
undoubtedly contributes in at least some respect to the lack of
knowledge relating to legal malpractice in the profession as a whole.

6 Id. at 874-875. Only three law schools in the United States accredited
by the ABA even offer a course specifically geared toward the prevention
of legal malpractice.

7 Id. at 886. Commentators have also attributed this relatively small
number of cases to the fact that many, if not most, attorneys do not
carry legal malpractice insurance. In cases involving small firms or
solo practitioners, a lack of insurance can make the attorney
essentially judgment-proof in claims involving significant recoveries,
thus discouraging plaintiff's attorneys from even accepting the cases.

8 While ensuring that attorneys faced with legal malpractice claims are
not subject to increasingly hostile juries, arbitration agreements also
have the potential to limit the defenses available to an accused
attorney. Because arbitration often reduces the scope of discovery and
has little if any practical appealability, an attorney agreeing to
binding arbitration before a claim is even brought may inadvertently
relinquish important defenses to the legal malpractice claim.

9 While the specific topic of avoidance is beyond the subject of this
article, it is worth noting that The Bar Plan has proposed "Ten
Commandments" to follow in avoiding legal malpractice. They are: (1)
Know your client; (2) Use your calendar and docket control; (3) Beware
of potential conflicts of interest; (4) Set fees and document your time;
(5) Maintain good client relations; (6) Confirm all important questions
in writing; (7) Triple check all outgoing documents and files; (8) Do
adequate research and consult experts; (9) Maintain high ethics and
standards of practice; (10) Don't ever think it won't happen to you. The
Bar Plan, Risk Management Handbook (1995). While no set of rules assures
the avoidance of all legal malpractice claims, these commandments are an
admirable starting point and would do much to avoid unwanted litigation
with former clients.

10 98 S.W.3d 871 (Mo. banc 2003). Although the exchange between the
Court and the attorney in Donaho borders on comical, the authors have
found that it is unfortunately unexceptional in matters in which
attorneys choose to represent themselves.

11 Id. at 872. The attorney was hired to assist his client in amending a
child visitation order. While he drafted the necessary motion and
forwarded it to his client for signature, he failed to take any further
action in relation to the motion.

12 Id.

13 Id. The CDC had informed the attorney that remittance of the fee
would be regarded as a mitigating factor in his disciplinary
proceedings. As such, notice to the CDC was an effort to avoid
disciplinary action.

14 Id. at 873.

15 Id.

16 Id

17 Id. at 874.

18 David B. Wilkins, Who Should Regulate Lawyers?, 105 Harv. L. Rev.
799, 815 (1992).

19 Ramos at 897.

20 Id. This perception frequently leads to attorneys failing in their
seemingly meritorious defense of legal malpractice claims.

21 It should be noted that on August 24, 2004, by order of Ronnie L.
White, Chief Justice of the Supreme Court of Missouri, the Supreme Court
of Missouri adopted a new subdivision of Rule 4-1.15. Subdivision (h) of
Rule 4.1-15 requires:

     A lawyer shall securely store a client's file for 10 years after
completion or termination of the representation absent other
arrangements between the lawyer and client. If the client does not
request the file within 10 years after completion or termination of the
representation, the file shall be deemed abandoned by the client and may
be destroyed.
     A lawyer shall not destroy a file pursuant to this Rule 4-1.15(h)
if the lawyer knows or reasonably should know that:
     (1) A legal malpractice claim is pending related to the representation;
     (2) A criminal or other governmental investigation is pending
related to the representation;
     (3) A complaint is pending under Rule 5 related to the
representation; or
     (4) Other litigation is pending related to the representation.
     Items in the file with intrinsic value shall never be destroyed.
     A lawyer destroying a file pursuant to this Rule 4-1.15(h) shall
securely store items of intrinsic value or deliver such items to the
state unclaimed property agency. The file shall be destroyed in a manner
that preserves client confidentiality.
     A lawyer's obligation to maintain trust account records as required
by Rule 4-1.15(a) is not affected by this Rule 4-1.15(h).

Rule 4-1.15(h) became effective January 1, 2005.

22 Ronald E. Mallen & Thomas P. Sukowicz, Protect Yourself From Suit:
Knowing When to Say 'No' to a Questionable Client or Case Can Shield You
 From Legal Malpractice Claims, Trial May 2002, at 42, 44.

23 State ex rel. Chase Resorts v. Campbell, 913 S.W.2d 832 (Mo. App.
E.D. 1995). Campbell held that proving the content of an attorney's
legal advice was not necessary to prove reasonableness of fees, and thus
the privilege relating to the content of the advice was not waived and
was not discoverable. But see, Grewell v. State Farm Mut. Auto. Ins.
Co., 102 S.W.3d 33 (Mo. banc 2003). In Grewell the Court allowed a
plaintiff full access to the file maintained by their insurance agent
and, in doing so, analogized that file to one kept by an attorney. In so
doing, the Court may have inferred an expansion of the access clients
are permitted to an attorney's work product.

24 See Corrigan v. Armstrong, Teasdale, et al., 824 S.W.2d 92 (Mo. App.
E.D. 1992).

25 Jennifer Knauth, Legal Malpractice: When the Legal System Turns on
the Lawyer, 35 St. Mary's L.J. 963, 970-71 (2004).

26 Miranda v. Arizona, 384 U.S. 436 (1966). Quote found at
www.usconstitution.net/miranda.htlm. Last visited 4-11-05.

27 David I. Dalby, Facing the Inevitable: Do's & Don't's for the Legal
Malpractice Defendant, 3 No.1 Legal Malpractice Rep. 3 (1991).

28 Marsha L. Morrow & Martin T. Lee, How and When to Submit a Claim
under a Professional Liability Policy, 1 No. 3 Legal Malpractice Rep. 7
(1990).

29 Telephone interview with Karen McCarthy, president and CEO of The Bar
Plan (Oct. 28, 2004).

30 Id.

31 Marsha L. Morrow and Martin T. Lee, How and When to Submit a Claim
under a Professional Liability Policy, 1 No. 3 Legal Malpractice Rep. 7
(1990).

32 Id.

33 David I. Dalby, Facing the Inevitable: Do's & Don't's for the Legal
Malpractice Defendant, 3 No.1 Legal Malpractice Rep. 3 (1991).

34 Marsha L. Morrow & Martin T. Lee, How and When to Submit a Claim
Under a Professional Liability Policy, 1 No. 3 Legal Malpractice Rep. 7
(1990).

35 Christopher T. Borgeson, The Lawyer As Defendant: How to Best Aid in
Your Own Defense, 3 No. 3 Legal Malpractice Rep. 3 (1992).

36 Id.

37 Guy D. Calladine, The Lawyer's Lawyer, 3 No.1 Legal Malpractice Rep.
5 (1991).

JOURNAL OF THE MISSOURI BAR
Volume 61 - No. 3 - May-June 2005