Over a thirty-year legal career, the average lawyer is sued for malpractice three times[1]. Of the 40,000 claims for legal malpractice every year, 12,000 result in some recovery of money damages[2]. Between the last two studies performed by the ABA, there has been a 72% increase in the size of payments to settle legal malpractice claims (greater than $2,000,000)[3].
In every study conducted by the ABA over the last thirty years, plaintiff personal injury attorneys top the list of most frequently sued lawyers.[4] Of the 40,000 claims for malpractice, almost 9,000 of these claims were personal injury- plaintiff claims.[5] This means that just over one in every five legal malpractice claims is against a personal injury attorney. Plaintiff attorneys are more than 539% likely to be sued than an average specialty and more than 736% more likely than personal injury defense attorneys.
Over 70% of all malpractice claims are against firms that consist of fewer than five attorneys.[6] Moreover, 37% of all these claims are against solo practitioners.[7]Malpractice claims for administrative errors are much higher. Of all the malpractice claims for litigators, 47% were for a failure to timely file complaints.[8] This particular defect is an easy fix for most offices.
Of the 1,410,000 lawyers in the United States, about 1,040,000 of those are in private practice.[9] There are roughly 117,600 complaints to bar associations each year.[10] That means that there is an over 10% chance of having a complaint filed against an attorney every year. Of these complaints, over 5,700 attorneys are publicly or privately sanctioned every year.[11] Over 15% of attorneys are sanctioned at least once over a 30-year career.[12]
The most common alleged error by claimants is failure to know or properly apply the law at 11.51% of all claims.[13] Of all the claims, 5.31% were for failure to obtain consent or inform the client of legal procedures, and 3.22% were for failure to follow client instructions.[14] The situation is direr considering that fewer claims are being abandoned or resulting in no payment.[15] The claims that were abandoned or received zero payment dropped by 10% from 2003 to 2007.[16] Roughly 8% of all malpractice claims have stemmed from settlement or negotiation activities.[17]
Many of these attorney malpractice issues may be avoided. The most common claim, not filing on time is, fortunately, an easy fix. Attorneys should always use a proven calendaring system or a competent administrative team to avoid such errors. As settlement claims are a highly vulnerable area for malpractice liability, attorneys should seek the counsel of a qualified settlement planner to educate clients on all the relevant tax, government entitlement, and funding issues of a settlement. Taking these steps, an attorney will avoid liability for many of the most frequent malpractice issues entirely.
[1] Haskins, Paul and Kathleen Marie Evans, Profile of Legal Malpractice Claims, American Bar Association c. Sep. 2008, p. 1
[2] See Id. at 12.
[3] Haskins, p. 1.
[4] Haskins, p. 1.
[5] See Haskins, p. 4, Table 1.
[6] 1 Mallen, Ronald E. and Jeffrey M. Smith, Legal Malpractice 38 (2009 Ed.).
[7] Id.
[8] Id. at 401.
[9] Survey on Lawyer Discipline Systems, 2007. ABA Center for Professional Responsibility.
[10] Id.
[11] Id.
[12] Id.
[13] Haskins, Paul and Kathleen Marie Evans, Profile of Legal Malpractice Claims, American Bar Association c. Sep. 2008, p. 10.
[14] Id.
[15] Id. at 9.
[16] Id.
[17] Id. at 19.
