Mark B. Abelson

San Francisco

Plaintiffs’ Legal Malpractice Litigation, State Bar Discipline Defense

When Abelson began representing plaintiffs in legal malpractice cases in the mid-1980s, his clients were individuals. For instance, one of his first was a woman whose divorce attorney had ignored her warnings that her husband was cooking his business’s books and probably burned down one of his buildings. Abelson settled that case for the attorney’s policy limits.

As his reputation in the field grew, Abelson said, he began receiving referrals to represent public entities, large businesses and insurance companies, most coming from other lawyers.

He has even been hired by an insurance company to sue one of its own outside defense lawyers. “When I first started doing this, that never would have happened,” he said.

That defense attorney had advised the insurer not to settle a product liability lawsuit against a company involved with faulty equipment that caused a worker’s 20-foot fall onto concrete. The injury suit finally did settle, but for about seven times the policy limit. So Abelson pursued the outside attorney to a multimillion-dollar settlement.

In another unlikely case a few years ago, an old, prestigious Bay Area law firm brought in Abelson as co-counsel to help it sue another large firm that had given a major client legally faulty advice about agreements on the client’s website. As a result, the client ended up subject to an eight-figure class action judgment.

Abelson handled malpractice issues in the litigation, such as standard of care, while the big firm dealt with other issues, he said. The case settled for eight figures.

Although he never defends lawyers accused of malpractice, he does sometimes represent lawyers in State Bar discipline cases. He tried one such case before the State Bar Court in January. “It was an intense experience, and we don’t know the outcome yet,” he said.

Abelson said he views suing lawyers for malpractice to be a public service that in the long run improves the practice of law.

“We’re fiduciaries to our clients, and we hold ourselves out as helping people,” he said. “It’s really important that people who do what I do make sure that the clients are getting what they deserve and what they pay for.”

Unfortunately, Abelson believes the number of lawyers willing to represent plaintiffs in legal malpractice cases has declined. “There are fewer and fewer attorneys who want to do plaintiffs’ legal malpractice work,” he said. “It’s a difficult area to practice in.”

-- Don Debenedictis