The Specter of Malpractice: When Law Firm General Counsel and Risk Management Professionals Are Confronted with Potential Malpractice Claims and Ethics Violations
12 Pages Posted: 28 Sep 2021 Last revised: 26 Jul 2022
Every day, law firm general counsel and other law firm risk management professionals face a very practical, very vexing problem. The problem is what to do when hearing that a serious ethical mistake or impropriety may have occurred—but without any concrete confirmation that something problematic has, in fact, happened. This essay discusses the most important initial steps and questions that the firm’s general counsel or other risk management professional must address in this confounding situation where the “specter of malpractice” is present. We call this the “specter of malpractice” because a malpractice claim has not yet fully materialized (and it is not entirely clear that one will materialize), but enough risk factors have surfaced to capture the risk management team’s attention. Included among these important and difficult questions are:
• Could this type of mistake constitute an ethics violation or a future malpractice claim?
• What duty does a firm’s general counsel or risk management professional have to investigate the situation?
• What action is required with respect to the firm’s legal malpractice insurer and when should the law firm take that action?
• What action is required with respect to the law firm’s clients and when should the law firm take that action?
We answer these questions in our short (under 5,000 words) essay, reminding our readers that “an ounce of prevention is worth a pound of cure.”
Keywords: legal malpractice, legal ethics, law firm behavior
JEL Classification: K10, K1, K13, K19, K29, K39, K4, K49
Suggested Citation: Suggested Citation