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So you committed malpractice ...

Q. I'm not inclined to make excuses. But things have been so hectic in my office that I let a nice accident case slip through the cracks and failed to file suit by the limitations deadline. My head is spinning. What should I do now?

A. When you make mistakes like this, you must rely on two policies: Your malpractice insurance ... and honesty.

Get out your insurance policy and report the claim to your carrier right away. If you were smart enough to procure this coverage, this is what you've paid premiums for all these years. As important as the coverage itself may be, you now have an experienced malpractice claims professional on your side who can call upon the resources of attorneys with experience in this very situation.

Of course, honesty is the best policy. In this case, it will not prevent you from getting hit with a malpractice action. But full and honest disclosure to your client is the first step in putting this behind you and avoiding a claim for professional misconduct.

Once you have ascertained the salient facts, you must contact your client promptly to explain the situation, to take full responsibility for the error, and to advise the client of his or her need for independent counsel.

Whether you meet personally with the client, or speak over the telephone, you must confirm the substance of your conversation in writing. This will not only provide a helpful summary for your client, but it will also memorialize your honest and forthright disclosure of the circumstances surrounding the error. Given the sensitivity of this letter, you would be well advised to consult with counsel of your own before transmitting it to your client.

In all of your communications with the client, there are some important Do's and Don'ts to follow:

DO:

1. Inform the client of your error and of the consequences resulting from your failure to file suit in a timely manner;

2. Advise your client to consult with independent counsel to determine whether to assert a legal malpractice claim against you;

3. Assure your client that you will cooperate fully in any investigation which may ensue.

DON'T:

1. Make excuses - don't say anything to engender your client's sympathy or dissuade the client from pursuing a claim;

2. Express an opinion on the outcome of a claim, or cast doubt on its viability;

3. Attempt to resolve the claim yourself - even if you seek a fair outcome, DIY negotiations may cause trouble that you cannot buy your way out of.


If you reported the error to your insurance carrier, you may also provide the name of the carrier and your adjuster's contact information so that future communications may be directed there.

If you don't have insurance, you should retain counsel of your own to handle future communications from the client or his counsel. Under no circumstances should you try to negotiate directly with the client.

Under the Rules of Professional Conduct, an attorney shall not settle a malpractice claim with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking independent legal advice and is given a reasonable opportunity to do so. While you cannot force the client to retain other counsel, you should designate counsel of your own to field these delicate communications. If you try to negotiate a resolution yourself, you are open to claims that you misled the client or betrayed the client's trust – claims that may place your license to practice law in jeopardy.

Right now, you have a potential malpractice claim on your hands. If you compound your mistake by failing to handle it with care, your isolated error may trigger misconduct charges that could cost you even more.

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Attorney Grievance defense attorney specializes in defending lawyers in disciplinary proceedings before the Maryland Attorney Grievance Commission and the D.C. Bar's Board on Professional Responsibility involving professional misconduct, legal ethics, disbarment, suspensions of law licenses, petitions for disciplinary action, reprimands and sanctions for unethical conduct. If you receive a letter from Bar Counsel Lydia Lawless, Disciplinary Counsel Hamilton Fox, or from any attorney disciplinary board in Maryland or the District of Columbia, retain experienced attorneys with expertise in lawyer discipline and breach of ethics cases to avoid sanctions for professional misconduct. We help lawyers avoid disbarment, suspension, reprimands, censure and informal admonitions by drafting responses to client grievances and ethical complaints; representing lawyers in peer reviews, evidentiary hearings, and oral arguments before the BPR and the Court of Appeals; filing petitions to reinstate an attorney's license to practice law; conducting law firm ethical compliance audits; and drafting legal ethics opinions to protect lawyers from ethics charges. In many cases, disciplinary proceedings may be dismissed, dismissed with a warning, or result in a conditional diversion agreement with Bar Counsel to rectify misconduct. Lawyers may need help in managing their law firm attorney escrow IOLTA trust account and complying with attorney trust accounting rules to avoid charges of ethical misconduct. Do not represent yourself in responding to an attorney grievance, law firm client complaint, or other allegation of ethical impropriety. Attorney grievance defense counsel may help you comply with legal ethics rules, avoid sanctions like suspension or disbarment, and avoid future attorney grievances.

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By The Lawyer's Lawyers | Kramer & Connolly and Irwin R. Kramer who are responsible for the content of this informational website.   This website is designed for lawyers faced with attorney grievances. As cases do differ, past performance does not guarantee future results.
 

NOT AFFILIATED WITH THE ATTORNEY GRIEVANCE COMMISSION OF MARYLAND
OR THE BOARD ON PROFESSIONAL RESPONSIBILITY OF THE D.C. BAR