We have written a lot about medical malpractice, and even more about problems with insurance companies and their power. So, I thought it was time to flip the script and talk about another problem that is not as often talked about—bad lawyers. Legal malpractice is a topic that is a lot harder for a person to understand than medical malpractice. When a doctor leaves a sponge in a patient, anyone can figure out that wasn’t supposed to happen. But how do you know if you lost your trial because your lawyer screwed up, or if it was because the other party was legitimately not responsible? Or, how do you know if your lawyer is recommending you take a settlement offer because it is really a good offer, or because trial is just too scary (or there is too much other work to do to go to trial)? Ultimately, how do you know if a lawyer is the right fit for you, the wrong fit but still competent, or just simply a bad lawyer?
Every month I receive the latest issue of The Colorado Lawyer (the magazine from the Colorado Bar Association) and no matter how busy I am, the one section that I make sure I read is Disciplinary Case Summaries. This section of the magazine lists attorneys that have gotten in trouble based on misconduct. Over time, some of the most common issues of misconduct that I have noticed are lying to cover up mistakes, stealing from clients, and errors in handling money. All can have horrific consequences for clients.
When an attorney is disciplined, that does not mean the mistake was legal malpractice. An attorney may violate our ethics rules, but not commit legal malpractice, in part because attorneys are bound by the ethics rules at all times. For example, an attorney can make a mistake in their personal life that leads to discipline, like a DWI or failing to pay child support, that is not legal malpractice. The line is not always clear. One in three attorneys is a problem drinker. If you were to hire the one, it may be that the problem drinking is just a personal demon the attorney battles, but if it negatively affects how the attorney represents you, it is likely malpractice.
Unfortunately, in Colorado, lawyers are not required to have malpractice insurance, only to declare whether they have insurance. For those of you unfamiliar with malpractice insurance, if an attorney does not have legal malpractice insurance, it is possible that victims of an attorney’s legal malpractice will not be able to recover against the negligent attorney because there are no assets to collect against. Thankfully, whether or not a lawyer has malpractice insurance is publicly available online at the Colorado Supreme Court website, along with any public discipline. I highly recommend checking it out before hiring a lawyer.
Lawyers are not infallible and make mistakes. If you feel unsure if you have been the victim of legal malpractice the best thing to do is talk to another lawyer. A different lawyer will be able to help you figure out if something was done incorrectly, or put your mind at ease. Some people may worry about the ramifications of talking to another attorney, but any conversation you have with an attorney seeking legal advice will be protected by the attorney-client privilege, meaning the lawyer you talk to won’t tell your other attorney (or anyone else) unless you say it is OK.
Like doctors and other professionals, all lawyers are not the same. If you are a victim of legal malpractice it can destroy your one chance at recovering what you can after you have been wronged. Do not take chances with your legal representation, and make sure you find a lawyer who is right for you. And if you are unsure if you are the victim of legal malpractice, talk to a different lawyer you trust.
By: Craig Valentine