Studying Legal Malpractice and Learning How to Bounce Back
Congratulations to Professor Bennett J. Wasserman and his Hofstra Law Students on launching the Legal Malpractice Law Review. This e-journal provides meaningful guidance on legal malpractice developments and prevention.
In writing Legal Malpractice Law: Problems and Prevention, Professor Vincent Johnson and I wanted to give law students a practical guide for studying legal malpractice issues. Our hope is that the text helps students understand the anatomy of a legal malpractice case, common malpractice traps, and steps that lawyers can take to protect clients, while reducing legal malpractice exposure. In that spirit, I am very pleased to see how Hofstra Law students have moved forward in publishing summaries of recent cases with insightful lessons.
The study of legal malpractice cases and commentaries reveals that all lawyers are subject to being sued for malpractice. Good lawyers as well as "not so good" lawyers get sued. What distinguishes lawyers is how they handle challenges to their own conduct, including legal malpractice claims.
Psychologists who have studied emotional intelligence, report that lawyers as a
group are less resilient than most other professionals. The good news is that resilience can be learned. See, "The Bounce-Back Factor", ABA Journal, April 2003 at 66.
To start a discussion thread on how lawyers handle their own errors, I invite comments on how law schools help students develop resilience. What are law schools currently doing and what steps can law schools take to prepare future lawyers to handle mistakes and challenges to their conduct?
I look forward to your observations and suggestions.
Editor's Note: Practicing lawyers are encouraged to join the discussion by posting their own inisghts and comments. Just click the "Comments" icon below.
Law schools offer courses such as legal malpractice and lawyer’s ethics that are beneficial to enhancing law students understanding of professional responsibility. In addition, law schools can offer more skills intensive courses, which actually prepare students for the day to day activities of a practicing attorney. These courses should offer constructive criticism so students can learn from their mistakes which in turn would make them more resilient in the working world.
If resilience is the power to “bounce back" or, to readily recover from adversity, we lawyers should have an abundant supply of that attribute. We lose cases all the time, and we quickly move on to the next. We win the next; sometimes we lose it. But we move on. Yet, for some reason, when we become the target of the next case, i.e., when the way we handled the last case comes under scrutiny, we seem to fall apart and sink. Why?
My educated guess after 35 years of prosecuting, defending, consulting, teaching and “expert witnessing" in over 1,000 legal malpractice cases, is that there are at least two things that weigh us down and hinder our ability to bounce back:
First: our sometimes over-inflated egos. We take great professional pride in our work as practicing lawyers, as well we should. But sometimes we forget that we share a common weakness with others--we are human. And, from time to time, even the best of us make mistakes. We need to acknowledge and accept our human condition. We can learn how to deflate our egos with a healthy dose of that refreshing antidote called humility. A paucity of the former and an abundance of the latter will go far to give us the bounce-back factor we need.
Second, we go into the practice of law without a real understanding of the mistakes which cause harm to our clients and which can inflict liability on us. We can learn how to avoid almost all of those mistakes, if only more law schools offered a full semester course on lawyer malpractice. In that regard, Hofstra Law School has been a pioneer, having offered such a course for the past 20 years. The importance of such training is that it helps us all learn how NOT to practice law by learning from the mistakes of others--those in the reported cases--so that we will not make those very same mistakes ourselves.
There is one more thing: Up until now, legal malpractice has been a subject that we haven't spoken about openly. It's the dirty little topic we lawyers tend to sweep under the rug in the hope that it will go away. We talk about it in terms of “us" and “them" like we're always right and those who would hold us accountable are always wrong. Those days hopefully, are behind us. With serious texts such as Professors Fortney and Johnson's and with even greater accessibility to open discussion offered by a forum such as the Legal Malpractice Law Review, all players in this substantive area--litigators, academics, insurance professionals, practicing lawyers in general and most importantly, law students--our next generation of lawyers, can now discuss--not fight-- with one another, so we can collectively learn from the mistakes of others and how to prevent those mistakes. With this new capability, we are at least one step closer to that clear and now achievable goal: to make us all better lawyers.
Best,
Prof. W.
Hofstra Law School
Law schools are helping students attain the kind of resiliency to which Ms. Fortney alludes by requiring classes in both ethics and practical skills courses. By training students how to properly counsel, advise and represent clients in addition to the penalties for negligence, law schools are not only preparing students for professional practice with the former, but also the realities that ensue should they be subject to the latter.
Furthermore, law schools (and universities), such as Washington and Lee, have a strict code of ethics to which each student adheres during their course of studies. The Honor Code is enforced by students. The Honor Code, especially in the context of the law school, teaches self-enforcement, adherence and the application of rigorous ethical standards while they are students. This kind of Honor Code is the kind of real-world training that will help law students completely understand the rigors of being an attorney, and how to "bounce back" when faced with possible honor code violations. The Washington and Lee Honor Code can be found at http://www.wlu.edu/documents/student_affairs/StudentHandbook.pdf on page 8.
I think the Socratic Method in general contributes to resilience. If a student gets knocked down the first time because they cannot respond to an answer correctly, next time, they study harder and they are more careful and they get the answer the right the next time.
To add to Professor Wasserman's comment, as attorneys, we have continuously sought to hold other learned professions accountable for their "human" mistakes. Why would there ever be an expectation, then, that we would be exempt from oversight that seeks to ensure more accountability, sincerity, and candor with those who put their faith in us?
Law schools, for many years, have focused on providing a course that prepares students to pass the Multistate Professional Responsibility Examination. Such courses tend to focus more on the language and meaning of the Rules of Professional Conduct, and not on actual errors attorneys have made in practice areas particularly prone to malpractice liability. Without a course on Lawyer Malpractice, students often graduate with good theoretical knowledge, but a lack of familiarity with "real-life" scenarios that repeatedly present themselves in personal injury cases, family law matters, trusts and estates planning, and a number of other fields.
Lastly, what role do law firms play in malpractice liability? I have worked in both large and small firms, and luckily, always in an atmosphere where I didn't have to think twice about consulting my supervising attorney on the proper course of action in any given scenario.
I know from certain colleagues, however, that their experience has not been the same as mine. Should law firms have an open door policy? Should they encourage younger associates, or even experienced attorneys, to ask questions and seek a second opinion? Should they foster an environment where attorneys recognize that owning up to a mistake in a timely fashion will provide an opportunity to rectify, or at the very least, mitigate damages to the client? Discussion is welcome from law students and practicing attorneys.
I think that law schools teach resilience by using the socratic teaching method. When students are called on in class and must be prepared to answer questions, students are put on the spot and learn how to speak for themselves in a coherent manner. I think that instead of appellate advocacy subject matter focusing on abstract and hypothetical ideas, it might be beneficial to students to prepare mock malpractice cases in order to heighten awareness of the prevalence of malpractice cases. I also agree with Professor Wasserman that this topic has been "taboo" for years and it is time for students, professors, and lawyers to embrace the subject matter in such a way that will prevent future malpractice.
Thank you to Professor Fortney for your kind words about our blog. I think that your post will open up a very interesting discussion. As a law student, I was under the impression (prior to taking this course) that it was the "bad" lawyers only that had to worry about potential malpractice. It is very important for law students to be exposed to a class like malpractice which teaches in detail the ways that all lawyers, not only the bad ones, can find themselves in a sticky situation. Malpractice is more common than we think when we enter law school and it is vital to our future as lawyers that we know what we are up against.
As a third-year law student currently enrolled in both Legal Malpractice and Ethics at Hofstra, I foresee an opportunity to expand on the current ethics curriculum which we, as law students, are obligated to enroll in, by adding an hour or two of class per week to help develop a better understanding of malpractice. While ethics and legal malpractice follow different sets of consequences, both have a similar goal in regulating and improving the quality of the profession. In fact, one of the reasons I decided to take legal malpractice was because I thought it was a logical extension to ethics. Ethics has helped me develop a strong knowledge of the rules that govern my future profession, but my studies in legal malpractice has allowed me to get a better understanding of what not to do. Both classes will undoubtedly allow me to become a better lawyer and I believe it would be extremely beneficial for more law schools to offer a similar curriculum.
First, I would like to send our gratitude to Professor Fortney for her comments on our blog. We greatly appreciate your contribution to our blog, and your post certainly warrants further discussion. A class is which lawyer malpractice is undervalued as to its importance to a law student, who is a future lawyer. Of course there are many instances where the conduct of a lawyer is clearly not proper, and it does not take an expert to know that fact. However, there are many instances in lawyer malpractice that i personally have learned through reading cases that i never would have realized was considering malpractice until taking this course. In order to better prepare for our future, it is an absolute necessity that we be exposed to conduct in which we would be held liable for, in order to ensure we are more careful and concise in our future.
As for the Socratic method, I am torn on my thoughts on this avenue of teaching. First, i think for a person like myself, who enjoys speaking up and sharing her thoughts, the Socratic method only pushes me to prepare slightly harder than I would normally because of the chance i may be asked questions. however, there are some people in law school who just hate public speaking. They may be an A student when it comes to test taking and an excellent writer, but sometimes the spotlight freezes them, even when the answer is right there in front of them. At times, I feel Professors can be too harsh on students such as these, with a presumption that they just did not read, rather than the truth, which is that nerves got the best of them. I think law schools need to find an alternative way to get to student and help them learn to accommodate that minority of students who just do not do well on the spot.
Thank you again to Ms.Fortney for your input.
I feel that lawyer malpractice is a crucial subject that should be mandatory for students in laws schools to take. This class has opened my eyes to the different ways lawyers can become accountable for their mistakes or negligent behaviors. I have always thought that only lawyers who commit serious fraud or negligence would be held accountable; however, this class has taught me that a lawyer can become liable for not informing them about a term within a contract (ex: Conklin case). Moreover is has taught me that an attorney-client relationship can form impliedly by the lawyer simply given legal advice to someone.
This class is important because it gives students a practical sense about what to expect when we become working attorneys. It also teaches us students on how to become good lawyers by warning us to avoid engaging in such behaviors.
I feel that law schools are offering more practical courses in order to prepare students for the real world as much as they can. However, since law schools are more theoretical than practical, fresh new associates must be extra cautious in ensuring that they are not breaching any duties, especially the duty of competency. Educating oneself with the prevailing law and practices can be tricky.
I would also like to extend my appreciation to Professor Fortney for her comments on our blog and offer my thoughts.
Based on my understanding of the current state of the law, the question is not if I will be sued, but rather when it is going to happen. It seems very clear that no matter how an attorney handles a case or transaction there will inevitably be unsatisfied clients. The more critical issue then becomes how to adequately protect yourself by developing a sufficient case file to refute complaints. Of course there are legions of cases in which attorneys flatly ignore their clients and their cases for that matter. As student contributors to this e-journal, we now have the knowledge and tools to recognize when the potential for these issues might arise and how to quickly prevent them from manifesting.
Law Schools certainly need to wake up and prepare us for the inevitable, without holding the Law School rankings as the holy grail. This task, however, becomes so much more difficult when one looks at the average law school curriculum and its painstaking attention to academia and theory. While it has its place, the fact that one can currently graduate from an ABA law school without ever have drafting a complaint in a negligence action lends to this conclusion. While it is a worthy goal, I cannot see Law School devoting any attention to the subject of this thread in the near future.
Students must prepare themselves on their own. My elective participation in Lawyer Malpractice at Hofstra is definitely a step in the right direction. Be studying the prior mistakes of lawyers, I have been able to understand the practical steps that must be taken once we are out in practice. At the same time, by reading the reported decisions, it is clear that not all malpractice suits end adversely for the assailed lawyer. If an attorney simply follows the relevant statute of limitations, obtains client consent in writing, and answers the phone when the client calls, she will likely prevail in most cases against her.
Thank you for your congratulatory words on the launch of our blog. I think that the law school environment and experience teaches resilience on its own. For those of us who are currently enrolled in law school (and for others who have gone through the experience), we learn within the first few minutes of or very first class that there is no "hand-holding" in law school. I think it is this competitive environment teaches us to "fend" for yourself and to be resilient. I also think many law school professors make it a priority to discuss potential malpractice issues while lecturing in class. Many of my past professors from various different subjects have highlighted areas of potential malpractice and have said something similar to: "without doing 'x' your going to be slapped with a potential malpractice claim." By doing this, I think our professors bring to the students an awareness of the serious consequences they may face if we don't make a potentially fatal mistake.
I agree with the above-mentioned postings that the Socratic method does help law students become resilient since they have to be prepared, at times think on their feet, learn to study harder and be prepared for any question that they may be asked to answer. In addition, classes such as Lawyer Malpractice, which bring into focus the mistakes attorneys make while practicing law and how to learn from them, helps prepare future lawyers in handling mistakes and gives them access to a forum where they can openly discuss what may be considered, as mentioned above, a taboo topic, when instead it is one that should be openly discussed in all law schools.
More law schools should have classes like the one offered at Hofstra where students can learn to understand situations where attorneys can make mistakes and how to avoid them and also be able to discuss the lessons from these mistakes, this as Professor Wasserman states would make all of us better attorneys. Taking this class is already one way of developing resilience while at law school.
This class and the genesis of the blog site has caused me more than a moment of pause about becoming an attorney at all. As I studied the cases and learned the true scope of potential malpractice liability I have found it valuable to consider if I want all that worry. While some of the cases we reviewed demonstrated truly horrible lawyering that would be easily avoidable, other cases seemed too unfair and unreliable for me to subject myself and my family to their binding precedent.
I am glad Professor Fortney couched the discussion in terms of "Bouncing back". Resilience and perseverance are keys to success in any endeavor. What seems particular about the legal business is the level of personal accountability that it carries, the legal profession is one of the most personally precarious ways of making a living.
As a new attorney one of my paramount concerns will be balancing competence with acumen for risk and financial foundation to weather potential storms of liability generated by my practice.
Thanks to all for their thoughtful insights. I appreciated the observations on law school experiences generally and the impact of legal ethics and malpractice classes.
On the issue of law school experience, I was fascinated by the suggestion that Socratic discourse helps students develop resilience. Interestingly, some faculty members have abandoned or "softened" their Socratic dialogue in an effort to "humanize" legal education. Without embarrasing students, professors should try to conduct the discourse in a way that challenges all class members to learn and grow.
Do grading approaches and class rankings play any role in shaping students' attitudes towards mistakes and accoutability?
Based on my work as a practicing lawyer and professor, I sincerely believe that studying professional responsibility positively affects lawyers conduct and the communities who we serve. Ethical decisionmaking is a skill that can be developed, especially if students tackle practical problems based on actual cases. As suggested by Selena Marchan, more attention to skills classes in law school may better prepare future lawyers. Beyond simulations, clinic work should help students understand the pressures involved in the ethical representation of clients. When students' work falls beyond acceptable norms (the student makes some error), the clinic supervisor can work with the student in addressing the problem. Clinic supervisors, as well as other law school professors, might also serve as role models when they deal with their own mistakes.
Finally, Krishna Shah's comments inspired me to think about law firm culture. One would hope that law firm supervisors would have an open door policy and encourage all lawyers to seek assistance. As firms grow, formal channels for addressing concerns develop. An ethics committee or general counsel may be appointed and consulted.
Beyond designating an ethics committee or general counsel, are there steps that law firm should take to help their lawyers develop Emotinal Intelligence, including resilience?
I look forward to your feedback.
First, I would like to thank Professor Fortney for her kind words about our blog. It has been a great experience thus far to have been able to use this forum to participate in a discussion about legal malpractice. Second, I would like to pose a few of my thoughts.
It would be an good idea if more law schools offered a lawyer malpractice course. It is important for law students to understand where a legal malpractice claim stems from. Additionally, it is helpful to read case law in this area as it only reinforces lessons on what NOT to do as a lawyer.
I agree with Ms. Goldberg, who voiced the opinion that the use of the Socratic Method in law school contributes to one's resilience. It also teaches students that they must always be prepared as it is possible that one will be called on at a moment's notice. This is a lesson that I am happy to have learned and will surely stay with me when I become a lawyer.
I join in the rest of my classmates in saying thank you to Professor Fortney for her kind and encouraging remarks about the blog. This blog has been a great experience thus far.
I think that the Lawyer Malpractice course should be required in law school. We spend three years of our lives learning what to do as an attorney. What we are not taught is what not to do to not only keep your license, but be a well rounded and ethical attorney. While we do have an ethics course that teaches us about the ethical rules of the profession, I personally believe we need a course such as Lawyer Malpractice which delves deeper into what not to do.
I feel that every class we take in Law School should incorporate some elements of both Ethics and Legal Malpractice. For example, in contracts if we took 1 class day to discuss the potential legal malpractice claims prevalent in Contract law it could help us as students put the ideas into perspective. I also think that this Legal Malpractice class that we are currently taking should be a required class to piggy back our ethics requirement. Having just taken the MPRE, both ethics and legal malpractice elements are tested. If we took one semester of ethics and one semester of legal malpractice it would surely better prepare us for real world practice.
Do grading approaches and class rankings play any role in shaping students' attitudes towards mistakes and accountability?
I think grading approaches and rankings definitely play a role in attitudes towards mistakes. The difference between an A or a B and Top 15 and top 16 percent is minute. One little mistake can change the course of your law school career. Thus, I think it teaches us to pay closer attention to detail. It sets up the notion that in practice, we need to be as careful as possible because one mistake can change a verdict or a suit dismissal.
I think it's also important to note, that some mistakes are inevitable and lawyers and students need to learn that mistakes just teach you to be more careful the next time.
As those before me already said, thank you greatly to Professor Fortney for her support and insight about the blog.
I think that it may be useful to encompass legal malpractice as part of the lawyer's ethics required class. I this will show students in what way they may be found liable and in violation of the ethical obligations of an attorney. While not every legal malpractice action is based on an incident of a breach of a lawyers ethical obligations, many are and I feel that seeing the effects would greatly benefit a future attorney. Additionally, making this a mandatory class during the 2L year (prior to taking the MPRE) may not be a bad idea either.
While the Ethics course seems to be a logical response to this question, I don't know that it actually fosters resilience. Most students look at it as a required course and an aid in taking the MPRE, as opposed to a lesson in what not to do. The examples and scenarios are so egregious and obvious in Ethics class that many of us shrug the defendants off as being stupid or thinking that Ethics issues could not happen to us. I think a class like Legal Malpractice is helpful in that it sheds more light on the subject and highlights more of the nuances of malpractice as opposed to the glaringly obvious cases where lawyers are hiding murder weapons and sleeping with clients. Classes like the one we are taking now make us realize, moreso than any Ethics class the reality of malpractice litigation and therefore offers us a glimpse at the resilience required to maintain a legal career.
I represent lawyers who have been sued for legal malpractice. Many of my clients are very proud lawyers who have had distinguished careers. They have experienced tremendous successes and have contributed greatly to their clients and society at large. And yet, when they are sued, they inevitably feel devastated and betrayed. So much of their self esteem is tied up in their professional lives and accomplishments. They value, above almost all else, the good opinions of them that are held by their colleagues. It often takes much time for my clients to learn how to deal with the new challenges to their self image that come with being sued for malpractice. No matter how well they understand, on an intellectual level, that the lawsuits are not an accurate reflection of their worth as lawyers and as human beings, it takes time for them to accept the reality of the lawsuits and put the lawsuits in their proper perspective.
While I certainly agree that law schools can help prepare future lawyers to deal with the devastation that comes with legal malpractice lawsuits, in the end the lawyers will need the support of friends, family, colleagues and their own defense counsel to rebuild their sense of self worth.
I do not believe that resilience can be taught. It is something that comes from within and is an essential part of who we are as human beings.
I look forward to this discussion. The topic is of great importance to the increasing number of lawyers who experience the shock of being sued for legal malpractice.
First, I join my fellow students in saying thank you, Professor Fortney.
I also join some of them in agreeing that law schools help students develop resilience through mandatory skills classes which helps through criticism of the student’s work.
I disagree with those that think the Socratic Method as it is used in law school provides any help fostering resilience. The method is good for determining what is the good itself, but that’s not what we do in law school. As I’ve observed it, the method is used in Law School to ask students what happened in a case and to apply what they read to some hypothetical. While it’s sometimes a good insight into what the professor’s going to put on the final, it’s not an especially useful way of learning anything. It really seems to serve as nothing more than a way for Professors to see if the student they called on did the require reading.
Law schools could better prepare future lawyers to handle mistakes and challenges to their conduct by requiring that each student take a legal malpractice class in addition to their current ethics class requirement. Awareness of another’s mistakes can better prepare lawyers to avoid them themselves.
Thank you Professor Fortney for contributing to the blog and sparking a very interesting discussion.
I would like to comment on one point raised by Mr. Friedman and connect it to something that Professor Wasserman said. Mr. Friedman noted that although attorneys who have been sued for malpractice are somewhat aware of the fact that such a lawsuit does not necessarily make them bad lawyer or person, it is hard for them to deal with such a blow to their self-image. Professor Wasserman asserts that lawyer malpractice must be discussed openly in order to ensure that we become better lawyers. Perhaps by stressing the fact that even good lawyers and good people make mistakes and might get sued for malpractice, we can encourage more open dialogue regarding this topic.
Although I think that open dialogue regarding legal malpractice promotes malpractice awareness, I don't think that it would necessarily prevent malpractice lawsuits. Many cases that we have studied resulted from a malicious intent on the part of the lawyer, but there seems to be an equal number of cases in which the malpractice occurred as a result of negligence or lack of legal knowledge. People who fall into the latter category will not think that these discussions pertain to them. So despite "open dialouge" being a noble idea, I do not think it will have a cognizable effect on the legal community.
Once again, I would like to thank Professor Fortney for her kind words and for initiating this meaningful exchange of ideas.
I find the statistic regarding lawyers' resiliency interesting, but upon second thought not very surprising. Lawyers by nature strive for success and excellence and thus hold themselves to very high standards. If unfortunately, they fall short of their self-imposed standards, it is understandable why it would be difficult for them to easily brush that off. Thus, I don't interpret that statistic as something negative; I think it implies that lawyers are more critical of themselves than others. This is not to say that learning to deal with setbacks is not something that would benefit future lawyers. Like many of my peers above have mentioned, I think the Socratic Method is an excellent tool in learning resiliency. While it undoubtedly encourages critical thinking, diligent preparation, and thinking on your toes, there will inevitably be that one time where you were not as prepared as you thought you were. And just as that moment is inevitable, so is getting called on again. Your previous setback will only have provided you extra motivation to do better next time.
I also believe that more skills based, or "mock practicing" courses should be required. In response to this need to learn resiliency, professors can create real-life scenarios which will require resiliency on the part of the student. These fake setbacks will teach students that when actually practicing, things will not be so black and white, and they will need to learn to adapt to the pressures incidental to practicing law.
Thanks again to the students and other contributors to this thread. I have enjoyed reading observations and sharing them with my colleagues attending an ethics committee meeting in NY. The professors agreed that the pervasive treatment of ethics and malpractice issues would be a positive step. I concur, but also believe that a focused study of legal malpractice is worthwhile. That is why I tackled a textbook.
In writing the textbook and teaching a legal malpractice class, the last thing that I intended was to dissuade anyone from practicing law. I love being a lawyer and consider it to be a very honorable profession. My hope is that the textbook and legal malpractice classes help prepare future lawyers, so that they approach practice with open eyes, taking steps to protect clients and minimize malpractice risk.
The study of legal malpractice should help you recognize the hurdles for a plaintiff to recover in a legal malpractice case. When a plaintiff does assert a claim, the lawyer will be tested. For example, does the lawyer have documentation to use in the lawyer’s defense? Does the lawyer have insurance to cover defense costs and any recovery? To me, accountability distinguishes professionals.
As you reflect on your own resilience and accountability, please consider the following quote from a Chinese Philosopher, Wang Yang-Ming (1472-1529):
"The sages do not consider that making no mistakes is a blessing. They believe, rather, that the great virtue of man lies in his ability to correct his mistakes and continually make a new man of himself."
I believe that while law schools are making efforts to enhance the "grittyness" and resilience of students, they are not doing enough. There is not enough "Practical Teaching" of the practice of law.
Take Legal Ethics for example. It is taught in a very preaching, non -practical way. "Here are the rules: You must obey or you are not ethical." This attitude will result in the rules actually falling on deaf ears. As opposed to a practical class such as Legal Malpractice, which incorporated real stories, as well as application of legal rules. The class challenged the students to think critically as well as put ourselves in the situation of a lawyer.
The other day, Professor Wasserman stated "Do you think a Lawyer should be dis-barred because he blew a statute...Come on." This is refreshong ot hear. Ethics is taught with such an underlying current of arrogance, that many lkaw students have the false impression that any lawyer who even makes a slight mistake should lose their liscence to practice law. Law school teaches you the law, NOT how to be a lawyer. Perhaps that should change.
I would also like to take this time to thank Prof. Fortney for contributing her time to this blog. You insight is greatly apreciated.
While this has already been said in countless ways, the legal malpractice course has helped make me aware that it is not only "bad" attorneys that get sued for malpractice. Mistakes are only human, but as an law student it is easy to imagine that we will not make the same mistakes as those before us. It is difficult to imagine that if we make a minor mistake or advise a client that a settlement deal is worth taking, that we may end up being a defendant in a legal malpractice claim. We spend countless hours reading cases that illustrate many aspects of the law, but absent a legal malpractice class, we are left with little to nothing on what happens when we make a mistake as an attorney. Learning how to deal with a mistake we make may be one of the most important things a young attorney could have learned while in school, yet without a class like legal malpractice we are only taught how we are obliged to act ethically without any focus on what might considered malpractice not unethical.
I agree with the point brought up by many others that the legal malpractice course provides a more realistic and complete view of issues of ethics and malpractice. In Ethic students examine the types of acts that many would consider stupid or dishonest--the types of things that "anyone with common sense" would know not to do. However, Legal Malpractice examines acts that many may consider "honest mistakes" but that the law punishes just as harshly as "stupidity". Legal Malpractice should be taught with Ethics as they are very closely related and doing so would provide a more complete education on the topic.
As others have noted, although an open dialouge will raise awareness to the lawyers in the are of legal malpractice, it may not be sufficient enough to substantially limit activity which may cause suit for legal malpratice. Many cases of legal malpractice occur out of absolute ignorance of the law or simply not knowing that certain actions are questionable or wrong. However, it seems that a large amount of legal malpratice cases occur where there is intent sometimes even malicious, or where attorneys simply ignore the rules and laws which they know so that it will produce an outcome which they prefer. Open dialogue may raise awareness and give attorneys the oppurtunity to look into questionable situatons for advice but it will not stop the intentional wrongdoer.
I look forward to insights and questions of the Texas Tech students.