You’re going to be sued.
At some point in your legal career—if you haven’t been already—someone is going to sue you for malpractice. It’s very nearly guaranteed.
That doesn’t mean the lawsuit will have merit. It doesn’t mean you’ll lose. What it does mean is you need to be prepared for the day you are notified a lawsuit has been filed against you. Even a skilled attorney will find that first, and hopefully only, malpractice lawsuit to be a numbing experience.
A Foregone Conclusion
The rise of professional liability insurance claims, driven by lawsuits against attorneys, includes their growth in severity, complexity and cost. Why? Many of the biggest claims relate to the practice of real estate law, and real estate itself—as well as the claims involved—is getting more expensive. Wealth, generally speaking, is growing, and that means the work of estate attorneys is becoming larger and more complex. The resulting transfer of that wealth is more complicated then ever. American society is also generally perceived to be litigious. And while one might assume many lawsuits involve personal injury claims, according to July 2020 Washington Post article by author and Rutgers Law School Professor Jay M. Feinman, about half of all civil lawsuits filed in state courts are actually contract disputes. Many involve malpractice claims.
In 2018, the American Bar Association published an article with the damning headline, “Solo Attorneys are Most Likely to Be Sued for Malpractice.” The article cited statistics previously reported by the ABA that found four out of five lawyers will be sued for malpractice at some point in their careers. Seventy percent of those claims tend to be against firms with one to five attorneys.
In short, claims against attorneys are on the rise and it is merely a matter of time before you, too, are facing a malpractice claim.
What Can You Do?
Besides bracing for the stress of being sued, there are steps you can take to ensure you are best prepared to protect yourself.
The most important step is to work with specialty insurance agents and underwriters who are experienced in attorney professional liability insurance coverage. The local agent who sold you your life insurance, or other general property and casualty insurance agent is unlikely to have direct access to the insights and types of coverage needed to adequately protect a practicing attorney.
Because attorney professional liability policies offer a wide range of covered professional services, having an agent who understands the practice of law, and your specific area(s) of practice in particular, is paramount. And if your role sometimes takes you outside of typically covered attorney services, such as that of an executor or lobbyist for example, you’ll want an agent who can recognize this reality and ensure the proper endorsements are added to the policy.
Another consideration for attorneys who have moved around, gone solo or resumed their practice after a period of inactivity, is exploring options regarding tail coverage. An experienced agent, broker or underwriter in this space can address this issue to ensure past actions don’t come back to haunt you.
Because you will almost certainly be sued at some point in your legal career, you need to ensure those who provide you with your professional liability coverage are experienced and have a full, unfettered picture of your practice. You wouldn’t hire a tax attorney to litigate a death penalty case, so why would you work with an insurance agent or broker who doesn’t specialize in attorney professional liability insurance?