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Executive Summary
Issue. Legal malpractice cases Industry. Law Key. Malpractice cases increase in a shifting industry.
Out of all the professions, lawyers are one of the least-loved. Look no further than lawyer jokes or attorney stereotypes in movies and on TV for proof — they're an easy target for ridicule.
Brad Kimbro, executive partner of Holland & Knight's Tampa Bay region, says they're also an easy target for something else: lawsuits.
“There's a misconception that law firms are deep pockets,” says Kimbro. “The law firm looks like the easiest target to collect from.” Kimbro is part of his firm's newly formed Legal Professional Team (LPT), which advises and defends lawyers in legal malpractice cases.
The team was formed in response to an uptick in work coming from fellow law firms. Holland & Knight has 21 lawyers across the country working in its LPT practice group, three of them in the Tampa area. Although the firm declined to share revenues, the LPT cases make up about 20% of the local litigation work handled by Kimbro and his partner in the Tampa office, Joe Varner.
Varner says the practice area has become more popular over the last five to 10 years. For many years, he says,“lawyers just didn't sue other lawyers.” Whether it was taboo or a philosophy, this unspoken rule no longer applies, he adds.
Malpractice cases range from plaintiffs trying to prove that lawyers missed a statute of limitations to allegations that attorneys failed to get proper documents signed, Kimbro and Varner say. Many times the cases that Holland & Knight works on involve an executive whose business endeavor doesn't succeed. Instead of blaming the economy or a bad partner, the executive tries to find a way to blame the lawyer. The firm recently worked on a case where an executive who filed for bankruptcy sued a number of the professionals he worked with, including his law firm. Varner was able to successful defend the firm against a $200 million legal malpractice claim.
A growing trend
Although Holland & Knight gains 95% of its legal malpractice business through referrals, the firm started marketing the LPT three months ago. The firm had an advertisement printed in Hillsborough Bar Magazine, featuring Varner, Kimbro and the third partner on the LPT team, Stacy Blank, with the headline: “Your Job is to Protect Your Clients. Our Job is to Protect You.”
Darryl Richards, a partner at Tampa's Johnson Pope law firm, says he's noticed an increase in advertising for legal malpractice attorneys over the last five years. Legal malpractice cases make up about 5% of Johnson Pope's business, with two to three cases each year defending or pursuing legal malpractice. The firm doesn't advertise for the business, but receives requests from existing clients and a few law firms whose insurance policies allow them to designate representation.
Traci McKee and Michael Corso from Henderson Franklin in Fort Myers advertise as “the lawyer's lawyer” to handle legal malpractice claims. McKee says they both spend 40% to 50% of their time defending all kinds of lawyers, including family lawyers, probate lawyers, real estate lawyers, litigation attorneys and more.
Corso, who has been practicing for 40 years, says he noticed a shift to non-medical malpractice in the mid-'80s. For at least the last 15 years, Corso has been attending semi-annual conferences for malpractice claims, which tend to have 400 to 500 people in attendance.
Richards thinks with more attorneys entering the field, practices such as personal injury became more competitive and lawyers started looking for different practice areas. He also speculates that the increased competition among lawyers has caused them to scramble for work, stretch boundaries to take on cases they may not be familiar with and forego attention to details — all things that make them vulnerable to lawsuits.
Varner and Kimbro think the trend is in response to tort reform on medical malpractice claims, which has reduced the damages available and made it more difficult to sue doctors. Varner says in the last five years a number of talented medical malpractice lawyers have started to advertise for legal malpractice.
Corso says he's seen malpractice claims trend from more real estate law claims to a number of estate planning and family law claims, which could be a function of the economy.
According to Kevin McLaughlin, a partner at Tampa's Wagner, Vaughn and McLaughlin, there have been a number of immigration cases recently where lawyers have missed filing deadlines and are responsible for people losing visas. McLaughlin and partner Jason Whittemore represent plaintiffs in legal malpractice cases. They say their firm has seen a lot of legal malpractice in bankruptcy cases, maritime personal injury cases, and cruise ship cases that are tied to tight deadlines and different statute of limitations.
The reason for the trend could also be due to lawyers thinking personal injury law as “quick and easy money,” Whittemore says. “So an immigration attorney does a personal injury case and screws it up or underestimates the details of the case.”
Challenges
Defending lawyers in legal malpractice suits comes with several challenges. One is their complexity, McKee says. “You have a case within a case, a trial within a trial,” she says. “You have to try two separate cases. You have to litigate the underlying case the lawyer was involved in.” As a result, the representing lawyer has to understand every area of the law.
Another challenge of defending lawyers, Varner says, is that juries don't typically like lawyers. The profession suffers from a poor image, he says, which can make it difficult to get a jury to identify with the lawyer in a case.
Richards thinks the biggest challenge is that lawyers are held to a high standard. “Judges and the general public have a bias they have to get over,” he says. “The firm representing the lawyer has to establish that the lawyer is a person of integrity who put effort into the original case.”
Richards says the key for clients wanting to pursue legal malpractice cases is to manage expectations. “Just because something went wrong doesn't mean it was the lawyer's fault.” Richards estimates he's approached by 10 to 15 clients a year wanting to pursue a malpractice claim, but most of the cases he won't take.
No matter what, the cases still come down to the burden of proof. McLaughlin says the firm spends a lot of money talking to experts in other areas of law to determine if the case is valid. “They are expensive cases to pursue and sometimes fruitless,” he says.
This story was updated to reflect the amount of work Brad Kimbro and Joe Varner handle on the Legal Professional Team.
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