Who, Me, Worry about Malpractice? Yes, You Should!

by Brenda L. Speer on December 13, 2012

It seems that at least once a week my business associate, Danette Lilja, and I experience conduct by our colleagues that causes us to exclaim to each other, “And we worry about committing malpractice!” Based on numerous instances we’ve witnessed committed by other attorneys just in the past few months, I wonder if we’re some of the few attorneys that give due concern to this very topic. If you see yourself in any of these examples, then it’s time to clean up your act before the Office of Attorney Regulation Counsel makes you do so under pain of suspension or disbarment.

Haven’t looked at or thought about the Colorado Rules of Professional Conduct (RPC) since before you graduated from law school? Then it’s high time you do a refresher. You can find the RPC on the Colorado Supreme Court‘s website (you know, the folks who monitor malpractice) and the Colorado Bar Association‘s website.

Forewarning: Yes, truth is stranger than fiction and none of the below examples are fiction. Per another cliché, it’s sad, but true.

THE VERY FIRST RULE, Rule 1.1 Competence, of the RPC states:

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.

The comments to the RPC note that “relevant factors include the relative complexity and specialized nature of the matter.”

One of the practice areas in which I and Danette both practice in is intellectual property law (known as IP, and covers patents, trademarks, and copyrights). For those of you that don’t practice in this area, it is important to note that to get malpractice coverage for this area of law, you must specifically disclose that you practice in this area and inform your carrier exactly in which of these three areas you practice, the nature of your representation (prosecution versus litigation, for example) in each area, and the amount of work you do in each area in relation to your entire practice. I’ve been practicing IP for more than 23 years and it is becoming a challenge to find insurance carriers who will even underwrite IP practitioners (to explain this decline in carriers providing coverage, I can only conclude that my fellow IP colleagues must be messing up left and right). Why do I tell you this? Because it means if you don’t practice IP and don’t have malpractice coverage for it, but you decide to dabble in it and get sued, then guess who’s footing the bill? You, in full.

At present, I am working on two separate copyright infringement cases for clients. To my great frustration in resolving the matters and utter astonishment at opposing counsels’ lack of concern about malpractice, neither of these opposing attorneys do ANY copyright work from what I can discern from their websites and definitely not from their responses to me. I had one attorney tell me my client had no copyrights, because notice wasn’t posted on its copyright work (which was an incorrect statement, just for starters). I politely told opposing counsel that the law regarding notice changed in 1978 and notice is not required. Interestingly, both of these attorneys state on their websites that their practice expertise is construction law. Not only are they committing malpractice in my view, but they are doing a great disservice to their respective clients by providing them legal advice that I think is flat out wrong.

Here are a few more examples. Do you notice anything that should have given these attorneys pause and concern?

  • An employment law specialist, without any IP experience or apparent attempt at self-education, who represented a client in a trademark infringement matter and provided the client almost entirely incorrect advice.
  • An attorney who evidently had no business law experience, because the documents drafted by the attorney for the client’s limited liability company included corporate documents of bylaws, shareholder agreements, and issued shares.
  • A business law attorney who filed a mechanic’s lien for a client that was in direct contravention of the statutory provisions and exposed the client to a lawsuit and damages to include forfeiture of all rights to such lien, plus an amount equal to the costs and all attorney’s fees.

What is the number one complaint we as attorneys repeatedly hear that (former and sometimes malpractice suing) clients say about the service provided by their (former) attorneys? Lack of communication! Rule 1.4 Communication states, in part:

(a) A lawyer shall:

(3) keep the client reasonably informed about the status of the matter;

(4) promptly comply with reasonable requests for information.

We gained a new client this week, because her former attorney failed to return repeated phone calls requesting a status update made over a period of more than four weeks. How hard is it to pick up the phone and call the client and provide a status update? Evidently, too hard. Former Attorney: 0; Us: 1.

The next example that should make you shudder concerns trust funds. Rule 1.15 Safekeeping Property states, in part:

(b) … promptly upon request by the client or third person, render a full accounting regarding such property.

In this horrific example, the attorney was hired to complete an adoption and took a retainer of $5,000. The attorney never did any work and the adoption process was never completed, let alone started. Five years later, the once hopeful, but now devastated, parent clients have no adopted child, have never received an invoice and have not been returned their retainer, despite requests for the same.

These cautionary and nightmare-inducing tales should make you revisit the question: Who, Me, Worry about Malpractice? And answer for your sake, the sake of those you represent, and the sake of our profession: Yes, I Should!

{ 1 comment }

Barb Cashman December 13, 2012 at 9:40 am

Another great post Brenda. Since Colorado law doesn’t recognize any specialties (except patent) for lawyers – unlike many other states, which certify lawyers in particular fields – we might conclude that many of our colleagues think to themselves “I’m a licensed attorney, how difficult can this new area of practice be?” Your examples are both illustrative and concerning. I think part of our problem is an oversupply of lawyers and couple that with the difficulty clients and non-lawyer types have with identifying “indicia of competency” in their attorney, and well, it’s a very challenging mix! The internet certainly provides lawyers more opportunities to show their expertise and competence – as well as . . . ignorance of basic facts and proficiency in the relevant area of practice. I share your concern.

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