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Why We Sue Attorneys (Sometimes)

May 24, 2019

The following thoughts were published on LinkedIn:

 

For my first ten years as an attorney, I only ever represented lawyers and insurance companies in professional negligence claims. It is a great practice: insurers pay steadily. The law is (unsurprisingly) very protective of attorneys. Lawyers can be terrific clients or difficult clients, but they are always knowledgeable and sympathetic as to what we do. And it is a practice that has stature among colleagues: to be a lawyer’s lawyer.

 

At Patterson Belknap, the top-tier law firm where I practiced for years, we racked up summary judgment dismissals and cheap settlements against plaintiffs. A key protection for lawyers facing malpractice claims is the strict “but for” causation standard that the courts (in New York) employ to any damages analysis: sure, maybe the guy screwed up, but who knows what would have happened if he had done the right thing? “The damages are too speculative, Your Honor” is the hall pass for attorneys behaving badly. There are many cases in which the negligence could not be clearer, but because the damages have a measure of uncertainty, the claim is promptly dismissed. Lawyers vindicating lawyers -- from which gratitude and more referrals are sure to flow.

 

By contrast, representing clients with claims against attorneys carries with it the stigma of being a guy in a suit with wide pinstripes, pointy shoes, or a loud polyester tie. Bottom feeders and stick-up artists. Those are the guys who, if they were a little bit tougher or a little bit stronger, would have joined the police force—and promptly become internal affairs. No, if you know what’s good for you, you best not cross the Thin Black Letter Line (a little lawyer humor for you), not the least of the reasons—the saying goes—is because a client who will sue his last lawyer is prone to turn around and sue you. And maybe there’s some truth to that. There is often a reason that conventional wisdom becomes conventional. Play with fire, you're sure to get burned, etc.

 

But it is not a mystery why there was never any shame in suing accountants or architects: even professionals make errors—and sometimes engage in misconduct. Medical malpractice is its own animal: perhaps looked down upon by the legal gentry, there is certainly no question that the med-mal bar exists. A whole industry. Doctors will tell you that lawsuits are a cost of doing business. Lawsuits are so common that medical malpractice claims have been the target of tort reform. Not surprisingly, you don’t hear about similar legislation targeted at keeping the cost of legal services down. No, there aren’t so many lawyers who will take a claim against another lawyer.

 

But here’s the thing: there are lawyers who damage their clients. Good lawyers know this is true. I’m not talking about a diligent lawyer who gets a bad result. Or doesn’t anticipate every possible future event. Or worked hard for the client, in good faith, but ended up incurring fees in a dry hole that would have been better left undrilled.

 

I’m talking about lawyers who deliberately overbill, because they have a fat matter or a trusting client, and pressure to turn in hours or keep up the business. Lawyers who have been practicing too long, lose their sharpness, and miss deadlines or don’t prepare. Lawyers who fall prey to conflicts of interest. Or lawyers who take advantage of clients in business transactions that they never ethically should have entertained. No—lawyers are not immune from everyday temptations or from holding their nose in the name of “business.” The former chairman of Wilkie Farr just pleaded guilty to some of the most egregious, unethical conduct one could imagine: bribing college officials to gain admission for his child, in deliberate disregard of his ethical obligations as an attorney, and knowing he could be disbarred for his conduct. It happens.

 

So who do people go to when their lawyers behave badly? Few lawyers wants to stick out their necks, and risk reputational damage that could dry up referrals or make for uncomfortable conversations at the next bar association meeting. Nobody wants a judge to look them in the eye and say “Mr. Slarskey, is that a mistake that you could have made with one of your clients?” Lawyers, in particular, are sensitive to the significant costs and distraction that litigation can create, and when an attorney is the defendant, it is not hard to identify with him—shuddering with the thought that a careless mistake could land you in the deposition chair.

 

Of course, “there but for the grace of God go I,” and anyone who has been in practice long enough has had close calls or made mistakes. But for clients who put their trust in lawyers—and pay them handsomely—who do they turn to when an attorney doesn’t do his job, or worse yet, has deliberately taken advantage? Far from being a blight, lawyers who will represent these parties are carrying out an ethical duty to police our own profession. It isn't an easy task. But when a client is legitimately aggrieved by the lack of professionalism from her attorney, that reflects on all of us in some form or fashion. 

 

Forty years ago, there was no recognized practice in “white collar crime.” High-class lawyers felt it below themselves to be affiliated with the accused—whether street criminals or executive suite fraudsters. Times change, however, with the vision of attorneys who recognize rights to be protected (and of course, money to be made). White-collar defense is now a high-profile practice, attracting many of the best and the brightest in our profession. The stigma of the practice is gone entirely.

 

We owe it to our clients and our profession to hold ourselves and our peers to the same standards that we apply to other professionals. A lawyer practicing in this area should be judged not by his willingness to sue other lawyers, per se, but—as in all matters—by the quality of his judgment in selecting claims to pursue, the manner in which he prosecutes them, and his ability to resolve disputes in a fair and equitable fashion. That can’t happen unless clients have someone in their corner, with the skill to meet lawyers on their own turf, and the professional standing to credibly make a case. Ultimately, at least for me, a willingness to stand up for what is right is the bedrock of our profession. Even more so than sending out bills (which—don’t get me wrong—is an important part of the business too).

 

From my experience, when a client is injured as a consequence of legal malpractice, the harm is often multi-dimensional: the client has generally incurred not only a monetary (or other) loss, but may also have paid significant fees for that privilege, and also suffer a difficult to quantify injury from the breach of trust. Along with the loss, there is often a corresponding feeling that there is no one to whom the client can turn to for help—or worse yet, that malpractice is just part of what you should expect when you retain counsel.

 

Clients like these need a lawyer.

 

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