The #1 Thing You Can Do To Avoid Legal Malpractice (For Lawyers) In Kingston, New York


This was my first (and hopefully last) time I committed legal malpractice. And it presented the first serious ethical dilemma of my career.

How I committed legal malpractice

In 1998, I represented a 40-something black male (I’ll call him “Mr. Jones”) for a serious foot fracture caused in a construction accident. The lawsuit went like clockwork. Summary judgment on the issue of liability was granted to Mr. Jones and the only issue for trial was a determination of his money damages. The week before the trial was scheduled to begin, the defense lawyer made a substantial settlement offer and the case was settled. Everything’s great, right? Not so fast.

Mr. Jones had received workers’ compensation benefits for his medical expenses and loss of wages after the accident and the workers’ compensation insurance carrier had a lien that had to be paid after the settlement. As usual for cases involving liens, I withheld money in a lawyers’ escrow account from which I could pay the lien. The only thing left to be done was to agree upon the amount of the lien and pay it from the money held in escrow and the case would be over.

Unfortunately, things never work out as you hope. The workers’ compensation insurance carrier wanted $16,000 for its lien and under the law, I did not believe the carrier was entitled to a penny. So I held out and hoped eventually a compromise would be reached. It didn’t happen.

A year and a half passed and a settlement on the lien agreement never materialized. Finally, I made a motion asking the Court to determine whether the workers’ compensation carrier was entitled to any money. The attorney for the workers’ compensation carrier opposed the motion by claiming that it was untimely, and that the motion should have been made within 3 months of the date of the settlement of Mr. Jones’s personal injury lawsuit.

I checked the law and lo and behold, the attorney for the workers’ compensation carrier was right. There is an arcane workers’ compensation law imposing a 3-month deadline on such motions. Since I was not familiar with this law, I checked with the senior partners at my law firm and they also had never heard of the law. I then went to a higher level and checked with lawyers specializing in workers’ compensation law, and they too had never heard of the law.

I faced a real problem. When his personal injury case settled, I informed Mr. Jones that I would fight the workers’ compensation carrier to the very end and that I did not believe the carrier was going to get a penny on their claimed lien. Now, Mr. Jones was facing a Court Order holding him responsible for the repayment of a $16,000 lien.

The first real ethical dilemma of my career

Okay, no one had heard of this particular workers’ compensation law, but was that any excuse for me? No, not quite. And I was now presented with an ethical dilemma, what do I do? Do I fess up to the client or cover up? A young lawyer had a choice to make.

My first thought is to avoid the embarassment of malpractice. I could simply cut a check from my savings account to pay for the lien and refund the money held in escrow to Mr. Jones, who never would have known that a mistake had been made by yours truly. The workers’ compensation insurance carrier would get their money and Mr. Jones would never know that I had committed malpractice. Everyone goes home happy, right?

I decided on a different approach. I called Mr. Jones and told him that I committed malpractice. Our conversation went something like this, “Mr. Jones, I have some bad news. I missed a deadline. You hired me to protect your rights and I failed you. Because of my negligence, a Court Order was issued holding that you owe $16,000 for the workers’ compensation lien. I committed legal malpractice and you should get a legal malpractice lawyer to advise you further about your rights against my law firm and I.”

The response that I did not expect

Mr. Jones’s response was not what I expected. Mr. Jones’s chuckled loudly and after calming down, he gave a response that I never expected. Mr. Jones said, “John, everything that I own is because of you (he bought a horse farm in Georgia from the personal injury settlement). How in the world could I ever sue you?”

Mr. Jones was amazed that I could have even suggested that he sue me. Was I glad to hear these words? Yes, but even more shocked. I just assumed that Mr. Jones would call a malpractice lawyer, especially after I told him that he had a good case against me. Mr. Jones was so appreciative that I was candid and honest with him that he thought it was laughable that I suggested that he hire a malpractice lawyer.

But what would have happened if I tried to conceal my malpractice? As soon as Mr. Jones discovered my malpractice, a lawsuit would have been promptly filed. And yes, Mr. Jones would have eventually discovered my mistake in a matter of time. One call to the Court by Mr. Jones would have shed light on my mistake and likely led to a legal malpractice lawsuit.

The top thing you can do to avoid legal malpractice?

The number one thing you can do to avoid legal malpractice is to be honest and candid with your clients when you make a mistake. Don’t try to cover things up or hope that your client doesn’t catch you. Eventually, they will. But even if they don’t, honesty works better than any other crazy scheme you can conjure up. Your clients will appreciate your honesty and more likely than not, they will think you are crazy for thinking they would ever sue you.

By forging a strong relationship with your clients at the inception of the attorney-client relationship, you will eventually gain their trust. If your client realize you are honest and candid with them, they will be much less likely to hold any mistakes you make against you.

The next time you make a mistake that hurts your client, pick up the phone and tell your client that you messed up. You may be surprised at the response…and you will sleep better at night knowing you did the right thing.

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