Michigan Attorneys: Keep Calm and Carry On With These Steps if You Receive a Malpractice Claim
You can’t please everyone. That old adage certainly applies to anyone who provides professional services, including attorneys. Rare is the professional – lawyer, physician, accountant, contractor, hairstylist – whose career does not include at least one client or patient who was less than satisfied with the services, treatment, or advice they received. Sometimes, the disgruntled individual will express their dissatisfaction with a one-star review or harsh criticism online and leave it at that. But other times, they may think the professional’s perceived shortcomings amounted to more than just inadequate, inattentive, or insufficient service. Such is the case when a client believes their attorney’s acts or omissions were so damaging that they constitute legal malpractice.
Legal malpractice claims in Michigan, whether or not accompanied by a grievance filed with the state’s Attorney Grievance Commission, must be handled thoughtfully and strategically by the subject attorney. Protecting their interests, reputation, and practice requires taking affirmative action, avoiding impulsive responses, and recognizing ongoing professional and ethical responsibilities.
If you have recently received a claim alleging legal malpractice, no matter how little you may think of its merits or substance, consider taking the following steps:
Review the Claim As if It Was Directed to a Client
Resist the urge to reflexively reject the allegations and look at them as if they were asserted against one of your clients. Review the claim thoroughly and identify the alleged issues, acts, misconduct, or failures.
Retrieve and Gather Client Records
Retrieve the case file to refresh your recollection of the client and the engagement in order to evaluate the nature of the claims. Pull documents, correspondence, and records related to the client and their matters, including billing records, emails, and notes regarding phone calls or meetings.
Advise Firm Counsel or Appropriate Committee
Many firms have either an in-house or outside attorney who acts as firm counsel or a professional responsibility committee charged with handling ethical issues or legal malpractice claims. Inform the appropriate person or persons about your receipt of the claim, provide them with a copy, and seek their guidance regarding next steps.
Notify Professional Liability Insurance Carrier
Although attorneys in Michigan are not required to have legal malpractice insurance, most prudent lawyers have a professional liability policy to protect them or handle their defense in case of a malpractice claim. Promptly notify your carrier of the claim and provide them with the claim and any other requested documents.
Evaluate Potential Liability and Damages
In consultation with counsel and your insurer, assess the validity of the client’s claims and evaluate the potential liability and damages – financial and reputational alike – that may arise from the suit. This evaluation should consider the extent of harm suffered by the client, the attorney’s duty of care, and any applicable legal standards or rules of professional conduct.
Consider Alternative Resolutions
Even spurious legal malpractice claims become public records once a complaint is filed. While you may have solid, meritorious defenses to the client’s allegations, protracted and public litigation risks reputational damage, can consume time and resources, and disrupts your practice. Many claims of legal malpractice arise from misunderstandings or lack of communication. If circumstances warrant, consider formal or informal mediation or other alternative dispute resolution options.
Maintain Confidentiality and Professionalism
Your relationship with the client may have soured, but that doesn’t mean your professional or ethical obligations to the client have completely expired. Although the attorney-client privilege may be waived when a former client pursues a legal malpractice claim against an attorney, you must evaluate this issue carefully and maintain strict confidentiality and professionalism wherever required, or else you risk making a difficult situation worse. Professional conduct and adherence to ethical obligations are always paramount.
If you are a Michigan attorney facing a legal malpractice claim and need counsel or guidance to protect yourself and your practice, or have questions regarding such claims, please contact Jesse Roth at Maddin Hauser.