How to keep a cool head if you get sued

Litigators are no strangers to the courts system, regularly defending or pursuing claims. Many lawyers may pride themselves on their cool heads and tactical approach to litigation, trying to counsel clients on the pragmatic steps for addressing what can often be emotionally-charged legal issues.

But no matter how clear-headed a lawyer may be when advising other clients, it is a different ballgame when the lawyer himself or herself is the defendant to a lawsuit for legal malpractice. Even the most experienced litigators may act in ways that are not in their best legal interest.

For lawyers who have not previously defended legal malpractice claims, they may feel a rush of emotions. Sometimes these emotions can create more risk for the lawyer, such as if the lawyer reaches out to the client, either to apologize for the alleged error that led to the lawsuit (which can create liability risks or risks for insurance coverage) or to let the client have a piece of the lawyer’s mind (which also would not look good on the record).

Facing a legal malpractice lawsuit can feel isolating and unmooring. But, if the lawyer defendant is thinking too much like a lawyer (and not enough like a client), they risk taking steps in immediately responding to a lawsuit that can impact the strength of the malpractice claim over time. Here are some tips for how to manage early risk as a defendant to a legal malpractice case.

Consult with Counsel

One of the biggest mistakes that a lawyer facing a legal malpractice lawsuit can make is thinking that they can go it alone. A lawyer who tries to steer their own ship may not know where the icebergs are. For smaller firms or for malpractice cases that are complex, attorneys may want to consider hiring outside counsel because it can be a mistake for attorneys who are not experienced in legal malpractice law or defenses to assume that any litigator can manage the defense. Legal malpractice cases are complex and have unique standards, and defenses that may not be as well known to lawyers who do not practice in this space regularly.

For lawyers who practice in firms with internal general counsel or risk managers, that is a good first stop when facing a lawsuit. This can help ensure that the privilege is intact and often assists the risk manager in reporting the suit to the firm’s insurance carrier. Having conversations with other people – inside or out of the firm – without that cloak of privilege could potentially be discoverable.

Be a client

One of the biggest challenges for a lawyer facing a legal malpractice lawsuit is to act like a client, not a lawyer. The lawyer’s instinct may be to take steps to move the case forward, to reach out to the client, or to act like first-chair. Lawyers who are sued may also feel personally invested in the strategy, particularly if they do not think they breached the standard of care. But this can be contrary to what an objective lawyer would recommend when assessing the risks and best outcomes.

Legal malpractice lawsuits are difficult and can be emotionally taxing. They can involve lengthy litigations and, depending on the facts, may be complicated to defend. Indeed, they are among the most expensive types of litigation because a plaintiff is often required to prove the ‘case within a case’ – not only that the representing lawyer breached the standard of care, but that the result in the underlying representation would have been different absent that breach.

Sometimes, a successful outcome involves the lawyer settling a case and moving on – which can be difficult to accept for a lawyer who wants to “fight.” But by relying on counsel who are experienced in this field, lawyers facing a legal malpractice claim can hand over the reins to someone else and can focus just on being a client.

Don’t underestimate the emotional toll

Lawyers facing legal malpractice claims often feel a range of emotions: anger, fear, and embarrassment, among others. Objectively speaking, lawsuits against lawyers are fairly common, and most of them lack legal merit (and may even be subject to early dismissal). But that can be a difficult concept intellectually for a lawyer who feels that a lawsuit means their career is over. That is not so.

The idea of being a defendant to a lawsuit will become more palatable over time, but that does not mean that lawyers/defendants are not allowed to “feel their feelings.” Part of acknowledging feelings when faced with a legal malpractice lawsuit means taking steps to act rationally with how those feelings are acknowledged or released.

It is also crucial that attorneys facing a legal malpractice lawsuit pay special attention to their mental health. The stress of the profession coupled with the stress inherent in defending against a legal malpractice lawsuit can lead to an increased risk of depression, anxiety, or substance abuse – which all run rampant in the legal community. Don’t be shy about calling a legal assistance program to receive advice, counseling or support.

By slowing down and soliciting the help of experts, lawyers can help get started on the right foot when receiving a lawsuit alleging legal malpractice.