High Risk Conduct
(Beyond Simply Practicing Law)
Undoubtedly, the risk of a lawsuit arising out of a law practice has increased steadily over the years. One reason is that there is less hesitancy by many lawyers to sue a fellow member of the bar. The number of regular plaintiffs’ attorneys for legal malpractice claims continues to grow. Additionally, many more attorneys are filing claims against lawyers as part of their representation of existing clients. In short, the growth in the number of lawyers willing to sue another lawyer has resulted in more claims.
With the growth of claims has come a growth in the law. Whereas attorneys were once subject to a claim almost exclusively by the client, that is no longer the case. Most states now recognize some situations in which an attorney may owe a duty to a non-client or even an opposing party. With the growth in the potential number of opposing counsel has also come a growth in the potential number of claimants.
Many defense attorneys and some carriers have reported an increase in the number of legal malpractice claims since the current economic downturn. A significant part of this increase is due to claims having characteristics that might be called “bad economy” claims. Examples of these claims are claims that arise primarily out of failed business transactions under circumstances that likely would not have lead to a claim during the previous 35 years of nearly continuous economic prosperity. In considering risky behavior, it is worth noting some of these characteristics because they can teach attorneys better practices for malpractice claim avoidance.