Scott Bertschi, a partner at Atlanta-based Arnall Golden Gregory, has the big-picture perspective on lawyers in trouble. He’s just finished editing A 50-State Survey of Legal Malpractice Law, published by the American Bar Association, which gives an overview of the laws governing attorney wrongdoing in every jurisdiction in the country.
As many once-regional law firms have spread their reach across a multitude of states, they’ve become vulnerable to malpractice claims from more jurisdictions. Bertschi, who contributed the chapter on Georgia legal malpractice, said the book pulls it all together and shows similarities and some vast differences in malpractice laws state by state.
He worked with two other attorneys to edit the book: Meri Baldwin of San Francisco’s Rogers Joseph O’Donnell and Dylan Black of Bradley Arant Boult Cummings in Birmingham, Ala.
The National Law Journal spoke with Bertschi, an insurance and professional liability partner at 132-attorney Arnall Golden, about what he learned while working on the publication. His answers have been edited for brevity and clarity.
NLJ: You have a national view of legal malpractice, something not too many lawyers have. What’s the most common way in which attorneys open themselves up to malpractice claims?
Scott Bertschi: It usually isn’t a situation in which a lawyer doesn’t know how to do something. A lot of times, younger lawyers want to make sure they have the right strategy or plan to avoid a malpractice claim. That’s really not the stuff of legal malpractice. It’s usually a situation in which a lawyer doesn’t do something. It’s those erors, like you missed a lien or you failed to file something on time. It’s erors that can’t be corected.
NLJ: What’s another common pitfall?
S.B.: A big area is conflicts of interest. It’s messy and it can present a question of punitive damages going to jury.
NLJ: With conflicts more of a concern as many law firms have merged, what has changed with compliance?
S.B.: A lot of lawyers don’t go through specifics of getting waiver. One trend is that more and more rules of ethics are requiring written waivers.
NLJ: What are some of the major differences between states?
S.B.: One is the difference in the development of the law in different states. Vermont and Rhode Island seem to have very little development — in other words, how many decisions there are, either reported or unreported. Some of the states with better development are California, Massachusetts and Pennsylvania. The more development a state has, the easier it is to guide your conduct.
NLJ: What about specific differences between states?
S.B.: There’s a big difference about the ability to recover damages for emotional distress and what’s required to prove it.
NLJ: What are some of the outlier states?
S.B.: First, in virtually every state, the element of causation is determined by the case-within-a-case test. Plaintiff must prove that they would have prevailed in the underlying action had the attorney not committed malpractice. While Louisiana employs that test, the burden is placed on the attorney to prove that the plaintiff would not have prevailed. It seemingly shifts the burden to the attorney to disprove causation.
Second, all states recognize a claim of legal malpractice as a claim sounding in tort, contract or both — except Alabama. In Alabama, a claim for legal malpractice exists only under statute, the Alabama Legal Services Liability Act.
NLJ: What other differences did you observe?
S.B.: Malpractice for criminal representations. In a lot of states, unless clients can prove they are innocent of the crime, they can’t pursue a legal malpractice action. Some states, such as New Jersey and North Carolina, have a lower standard. Clients can prove that they wouldn’t have gotten as much jail time.
NLJ: What’s advice would you give lawyers who want to avoid malpractice actions?
S.B.: A lot of this has to do with communication with the client. The majority of legal malpractice claims are disposed of without any payment by the lawyer. There are a lot of claims out there that ultimately don’t have merit. You want to avoid your client saying that you’ve done something wrong. Frankly, that involves a lot of communication with that client.
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