It's been a busy six months for Zuckerman Spaeder partner Mark Foster.

In late October, Foster and his firm were tapped by Mintz, Levin, Cohn, Ferris, Glovsky and Popeo after an e-discovery service company accused the firm of malpractice. In January, Foster won a second dismissal of a high-profile malpractice suit brought by Blackwater Security Consulting against Wiley Rein. Just one month later, in February, he became the attorney of record for Hogan & Hartson in D.C. Superior Court. That firm faces a malpractice suit from a mouthguard manufacturer alleging legal malpractice, breach of contract and breach of fiduciary duty.

"Law firms get themselves into the most amazing things," says the 66-year-old Foster. "They bust their hump, and then their clients start saying they made a mistake."

Zuckerman Spaeder, a 72-lawyer litigation boutique with 53 lawyers in Washington, D.C., does not fit the profile of the typical firm tapped to represent Big Law. Douglas Richmond, a lawyer with Aon Risk Services, a risk management consulting firm, says that "large and sophisticated law firms tend to turn to peer firms to defend them when a malpractice claim is filed."

Other firms with equally high-profile client lists tend to be larger. Zuckerman Spaeder's competitors include Crowell & Moring and Williams & Connolly.

John Villa, a partner with Williams & Connolly, helped Finnegan, Henderson, Farabow, Garrett & Dunner last month secure a ruling in Biomet Inc. v. Finnegan Henderson LLP in the D.C. Court of Appeals that protects lawyers from malpractice suits if they can prove they acted with "reasonable care" in making a tactical decision. Williams & Connolly partner Michael Sundermeyer is representing K&L Gates in a legal malpractice suit filed in January in D.C. Superior Court.

Foster and Zuckerman's client roster is studded with top law firms. The list includes Milberg, McKee Nelson, and the last two years' highest-grossing D.C. offices (Wiley Rein and Hogan & Hartson).

That business could continue to grow. Foster says he usually handles roughly six legal malpractice cases in a year. This year, Foster already has six on his plate.

"My sense is business is picking up," Foster says.

Crowell & Moring legal ethics and malpractice partner Barry Cohen, who says his firm typically handles about three malpractice matters that go to litigation in a year, has not yet seen a rise in malpractice work, but says he is hearing some rumblings.

"We have been told by insurance companies they are anticipating for an increase in malpractice claims," Cohen says. "They seem to think there is a correlation with the economy and business clients looking for someone to blame." Three insurance companies wouldn't comment on their forecasts, and said first-quarter statistics are still being finalized. According to the American Bar Association, between 2004 and 2007, legal malpractice claims increased in the United States and Canada by more than 36 percent from the previous three-year period.

As business grows, so does Foster's and Zuckerman's reputation. Wiley Rein's managing partner, Richard Wiley, says he hadn't worked with Foster before Blackwater sued Wiley Rein but chose him due to good word of mouth. Wiley's partner, Bert Rein, says the Attorneys' Liability Assurance Society Inc., a lawyer-owned mutual insurance company, "highly recommended" Foster to the firm. The decision to tap Foster worked out for Wiley Rein when Foster won an outright dismissal of Blackwater's $30 million suit. Other firms, including Mintz Levin, which is being sued for more than $20 million in damages, according to court documents, hope Foster will do the same for them.

"When you get sued, it's not pleasant," says Susan Berson, the D.C. managing partner of Mintz Levin. "But that's who you turn to. I don't think there's anybody better in the business than Foster."

BUILDING A PRACTICE

After graduating from Harvard Law School, Foster honed his trial lawyer skills working as a staff attorney for the D.C. Public Defender Service and later as the chief of the service's felony trial division. In 1976, Foster helped found Moore & Foster, and the firm merged with Zuckerman Spaeder six years later.

Foster's profile grew after he handled the dissolution of 235-lawyer Heron, Burchette, Ruckert & Rothwell in 1990. Heron's decision to close its doors made it one of the largest Washington, D.C., law firms to ever dissolve. Foster also drafted the initial partnership agreement at McKee Nelson Ernst & Young (now just McKee Nelson), after the firm was founded with the financial support of the accounting giant.

"My current practice came very slowly. You deal with enough cases involving law firms and one thing leads to another," Foster says.

Today, Foster says about 50 percent of his practice involves representing firms in legal malpractice claims and about 50 percent includes counseling firms on ethics issues, disciplinary matters and partnership agreements. He says in a year, he handles roughly 15 of these legal ethics issues for clients, but adds the malpractice suits are larger in scale and require more resources.

Barry Nace, a partner at Paulson & Nace, represented Blackwater Security Consulting in its suit against Wiley Rein. He says he never had the opportunity to face off against Foster in court, but says, "Mark conducted himself professionally and like a gentleman" in dealing with Foster in the matter.

Zuckerman and Foster take cases on both sides. He is currently involved in litigation representing Kaiser Group Holdings Inc. in a malpractice suit against Squire, Sanders & Dempsey in the U.S. Bankruptcy Court for the District of Columbia. Villa is representing Squire Sanders.

"Many Big Law firms won't sue other firms under any circumstances -- for business reasons," Foster says. "We've always taken the attitude you do cases that are brought to you."

Cohen confirms it's rare for larger firms, like 469-lawyer Crowell, to take the plaintiff's side in malpractice cases.

"We don't go after that work," Cohen says. "The only time we would bring a malpractice claim against a law firm is on behalf of an existing client -- as a favor. But, generally, we don't go out and court that work. It would really hurt my practice if we sued firms."

But if he did, it wouldn't be surprising to see Foster on the defense.

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