Five Red Flags for Lawyer Malpractice Exposure

Scenes of the Season: Santa’s Day in Court

Never mind producing a Christmas miracle. Inexperienced lawyers who take on high-profile cases may expose themselves to malpractice risks if they’re unprepared to meet a client’s expectations.

Santa dressed in a suit sitting at defendant's table

Proving that Kris Kringle is sane would have been easy. But in Miracle on 34th Street, lawyer Fred Gailey takes Kringle’s case to make a name for himself by proving that the old man is really Santa Claus.

Character witnesses full of holiday spirit back up the claim, and Kringle’s personal victory comes when Doris Walker and her daughter – the story’s biggest skeptics – say that they, too, believe. But the case itself is only closed when Gailey’s evidence arrives – dozens of bags of letters addressed to Santa are delivered to the courtroom, and Kringle wins the day.

The case “was a series of ethical lapses and monumental litigation blunders born of hubris, inexperience and poor planning,” according to Argo Pro’s Bill Healey, vice president, underwriting – risk management, lawyer’s professional liability.


Source: American Bar Association

A Christmas Eve case review for lawyer malpractice

“Lawyers are often called on to perform legal miracles,” Healey says. “When a client’s expectations, reasonable or otherwise, are frustrated, malpractice litigation often results.”

Errors made by attorneys that cause financial, emotional and reputational harm increase exposure for themselves and/or their firms. In The State of New York vs. Kris Kringle, Healey flags these risks:

  1. “Dabbling” – Providing representation or advice in areas of law with which one is unfamiliar. This is an increasingly common source of claims among law firms’ insureds.
  2. Conflict of interest – Underwriters agree that even the faintest suggestion of an attorney putting his or her own interests, or the interests of a third party, ahead of the interests of the client, strengthens the case of lawyer malpractice.
  3. Self-incrimination – Rather than have Kringle decline to waive his Fifth Amendment right, Gailey ushers his client to the stand and opens the door for the prosecutor to elicit the only testimony upon which he would rely to establish a prima facie case of lunacy.
  4. Unnecessary strategy – First, Gailey fails to bring a dispositive motion at the conclusion of the State’s lunacy case. Second, he asserts a proposition that is unnecessary to defeat the State’s burden of proof on the issue of commitment. Both of these mistakes call into question the counsel’s basic competency.
  5. Unreliable testimony – The defense calls witnesses who can’t provide the evidence he needs to make his case. Lack of preparation and a clear vision of how a case will be defended will be apparent.

“To win a case, and to avoid malpractice exposure, attorneys have to plan for what they know they can prove, not what they hope they can prove,” Healey says.

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