If you think you can fix that mistake, think again. As lawyers, taking matters into our own hands is dangerous and ill-advised.

We are all familiar with Abe Lincoln's maxim: “The lawyer who represents himself has a fool for a client.” Nonetheless, too often one of us decides to take matters into his or her own hands with the notion that we can fix anything we put our minds to if we just focus and persevere. After all, it was our mistake—we can clean up our own mess—right? Wrong, for all of the following reasons.

Larry Lawyer never thought much of the case in the first place. The client seemed somewhat disingenuous, always exaggerating her claimed symptoms, and always inconsistent in her account of the accident facts. Did she really slip and fall in that foyer as she claimed? Then there were the problems finding an expert to testify that there was something wrong with the foyer floor. The file physically moved around his desk top and then around the office, until it was literally lost underneath another file folder—out of sight, out of mind. Then, of course, the statute ran on the stupid piece of junk case without a complaint on file.

What to do? Larry had already had a malpractice claim, and was all too familiar with the process, including the raised malpractice insurance premiums. Not this time. Larry was pretty sure he could buy his way out of this little problem. Once he paid off the client, he never wanted to see or hear from her again anyway. She knows in her own heart that her case is not worth anything.  This will cost less than turning in a claim to his insurance carrier—right?

WRONG FOR REASON #1

Assume that Larry succeeds in getting his client to take a monetary settlement for her case that he thinks is more reasonable than the alternatives he has been contemplating, including the increase in insurance premiums. How does he structure the “deal” with his client? On his worst day Larry tells the client that the money is coming from the tortfeasor. Now he has turned an insurable mistake into a fraud case that can lead to disbarment. On his best day, he tells the client about his mistake and sits down with the client to have a rational discussion about the merits of her case and lack thereof in order to reach an “agreement” they can both live with. 

However, the “agreement/deal” is not binding on the client. In every jurisdiction in the United States, a lawyer’s self-dealing with a client is presumed unfair. Most states have an ethical requirement that the lawyer inform the client IN WRITING that the client should obtain independent legal advice. Failure to do so is in itself an ethical violation that can lead to licensure problems. Unless Larry succeeds in getting the client to independent counsel of her own choosing, he simply cannot make a binding agreement with the client. Furthermore, more often than not, the client, who later discovers that the “deal” is not binding, not only sues Larry for malpractice, she reports him to the professional disciplinary authority for neglecting her case, attempting to cover up the error, and trying to swindle her out of her fair settlement.

WRONG FOR REASON #2

Aw, you say, that’s just a bunch of doomsday malarkey from a jaded defense lawyer.  That would not happen. Maybe Larry could not pull that off, but I am pretty sure I could finesse it without any of that fallout. And, those increased insurance premiums go on for years—right?

Perhaps—but, what are you going to do next time your malpractice insurance policy comes up for renewal? You have to disclose this claim on your application for renewal. If you fail to do so you are wasting your money on policy premiums for a void policy, and that same question will have the same false answer on every subsequent future application for renewal.  When (not if) the insurance company finds out about the claim and your failure to disclose the claim, they will void the policy based on misrepresentation, and in some cases, you could again be looking at a report to the registration and disciplinary authority for fraudulent misrepresentation to your own carrier. Finally, you will almost certainly have practically insurmountable difficulty obtaining malpractice insurance thereafter.

WRONG FOR REASON #3

Back to Uncle Abe, and here is the most ironic part of all: Most, if not all, lawyers’ professional liability insurance forms have a provision for pre-claims assistance—usually without a deductible—under which you can request representation for this matter. News flash—you get a free lawyer, who concentrates her practice in this area of the law, and who can resolve this matter for you once and for all—with your insurance company’s money, for which you have already paid a premium—and without your jeopardizing your law license and your future insurability for the rest of your career.

TAKEAWAY

Abe was right. Only a fool would turn an insured mistake into a disciplinary case that could impact his very license to practice law.