REFLECTIONS
By Alvin I. Frederick, Eccleston and Wolf, P.C.

There are certain dark times in lawyers' lives that arrive, even with the best efforts expended to avoid them. Those dark times are threats of suit, or even worse, actual suit against an attorney and letters from Bar Counsel to the Attorney Grievance Commission. Notwithstanding every effort made, sometimes these things simply happen.

If you are threatened with a suit, or are actually served with papers (which ever first occurs) you are urged to:

Do not over react. This is truly not the end of the world. It is not the end of your career. It, more likely than not, will not make the media. The only folks who will know about this will be those you inform.

Do take it seriously. While one ought not to over react, an appropriate reaction is necessary. An appropriate reaction requires:

Immediately notify your professional malpractice insurer. This cannot be overemphasized. Indeed, it is imperative that the insurer be placed on notice whenever you know, or reasonably should know that a claim might exist against you, whether threatened or not. The consequences of failing to timely notify the insurer can result in the loss of your insurance protection. This is not to be lightly treated.

Do not discuss the threatened or actual suit with your adversary. Think about the advice you would give to a client in similar circumstances and the reasons that you would give that advice. There is no difference simply because rather than the advice relating to a client, it is you. Merely because you are a lawyer does not cloak you with some ability or invincibility to communicate with an adversary about a matter related to your own interests. Frequently, personal interest clouds judgment.

Do not give your original file to your adversary without making a copy for yourself. Do not charge the client for the copying costs. The Rules of Professional Conduct (1.16) proscribe appropriate conduct with the files maintained by lawyers for their clients. Bear in mind that Maryland recognizes both charging and retaining liens. Not
infrequently, exercising the retaining lien is not in the lawyer's best interest and will not necessarily achieve any objective beyond irritating a client. Imagine yourself undertaking a defense for a client in a civil matter and finding out that the client, prior to retaining counsel, surrendered her one and only copy of the file to the person suing her. This set of circumstances makes defense more difficult. It certainly makes early evaluation of a defense, exposure and liability virtually impossible. The one thing people being sued want to know from their lawyers, almost immediately, is an assessment of whether they are liable and if so for what. Having no file to review makes this assessment an impossible task for the lawyer engaged to do.

In those circumstances where you realize you have made a mistake and the client does not know, there are at least two things that should be promptly done. It is strongly suggested that the insurer be immediately notified, for reasons previously expressed. In addition to notifying the carrier, it is also suggested that the carrier be asked to provide a brief consultation, pre-litigation, with defense counsel to obtain advice on how to inform the client. If the carrier declines to do so, consider these factors in notifying the client.

The client must be told the truth. Conclusions and acknowledgements of fault, however, ought to be avoided. In the words of TV detective, Joe Friday, "The facts, only the facts." For example, in a missed statute of limitations situation, the client should be told that the time for filing her matter expired on a day certain and the matter was not filed at that time. The failure to timely file the action has created a conflict between lawyer and client such that the client may no longer look to the lawyer for advice. The client should be told (and have this advice confirmed in writing) to consult with another lawyer concerning the ramifications of these events.

There are at least two reasons to advise the client in this manner and confirm that advice in writing. First and most importantly, the lawyer has an ethical obligation to do so. It's one thing to miss a filing deadline, it's another to lie or mislead.

Secondly, the letter will start the running of the discovery statute of limitations. The lawyer should avoid statements such as, "I made a mistake." "Don't worry, I have insurance", etc. Simply missing a deadline does not equate with making a mistake. In order for a mistake to have been made, there must be damages to the client. If the matter, even timely filed, would have been lost, there are no damages and no negligence. In addition, there are creative ways to remedy late filing, such as determining if there is another venue where the matter may still be timely filed.

For suggestions regarding letters from the Attorney Grievance Commission, see my article "Attorney Grievance Commission Inquiries…October 2001" on the Legal Mutual web site (http://www.legalmutual.com) in the Customer Service - Risk Management Information section.

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