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The VI Bar Herald
      The Source for VI Legal Info       OnePaper Community Edition       August 20th, 2017      
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What is the Standard of Care in Determining Legal Malpractice
by Robert W. Martin, Jr.
ALPS Risk Management Report

     ALPS claims statistics show that one of the reasons why plaintiffs' personal injury attorneys are the number one source of malpractice claims is that allegedly they occasionally settle suits without their clients' consent. Sometimes this is true and sometimes "settlement remorse" makes the client revise history. Unfortunately, if the attorney did not give the client written confirmation of the settlement discussions and authority, it will be the client's word against the attorney's, and oftentimes both the judge and jury will give the client the benefit of the doubt.
     
     Of course, this scenario is not limited to personal injury attorneys. Business law (whether litigation or contract negotiations), family law, real estate, tax, and many other areas of practice require attorneys to negotiate on their client's behalf. We certainly do not want to encourage settlement without the client's full authorization, nor settlement based upon anything other than your best efforts. However, a recent Federal case on this subject provides a peculiar new perspective.
     
     The decision and rationale in McKnight v. Dean, U.S. Court of Appeals, 7th Cir. No. 00-3007 (11/02/01), should send shivers up the spine of those Bar leaders who have appropriately spent a great deal of effort trying to enhance attorneys' public image. At the same time, the decision may make some attorneys breathe a bit easier. The court defined legal malpractice as "…not a failure to be brilliant, but a failure to come up to even a minimum standard of professional competence…. [Legal malpractice] is not a synonym for undistinguished representation." Wow, that should make us all feel proud!
     
     As if that were not enough, the court then discussed the facts presented. The case involved an allegation that the client's second attorney "forced" the client to settle basically by accepting the limits of the client's allegedly negligent first attorney's legal malpractice insurance policy. The court stated that while "… [W]e do not condone …[attorney #2's] action in 'forcing' [the client] to settle…If [the client] was pig-headed and wanted to tilt at windmills, that was his right…[Attorney #2] didn't have to continue representing him in those circumstances, but he could not, whether to safeguard his fee or for any other reason, use deception to induce his client to settle against the client's will. The decision to settle is the client's own."
     
     So far so good. That is essentially what we preach at ALPS; the attorney is under no obligation to continue representing an unreasonable client (assuming the court will allow the attorney to withdraw which is, of course, sometimes easier said than done.) However, the court did not stop there.
     
     The court next stated that although forcing a client to settle is a breach of a lawyer's ethical duty to his client, such conduct "…will often be harmless." The court concluded by saying that under the facts presented, attorney #2 did the client a "favor" by agreeing to the settlement before consulting the client. Hard to believe, but true! Despite its words, the court basically did condone a forced settlement in circumstances where the court, post facto, perceived the aggrieved client to have a weak case. For those of us who sometimes bemoan the lack of private practice background and "practicality" of the judiciary, perhaps it is time to remember the old adage of, " be careful what you wish for."
     
     While we all have fretted over clients who are unreasonable in their settlement posture, I do not believe any attorney would realistically hope that a court would side with him if he forces a client to settle a case -- no matter how weak the client's case. It is not clear whether the client coupled his malpractice claim against attorney #2 with an ethics complaint (not an uncommon practice), but if he did, I would not expect the disciplinary authorities to agree with the court's ruling.
     
     Although an attorney cannot be certain that his client never will reject a reasonable settlement proposal, there are some things you can do at the outset of representation to prevent being confronted with that situation. First, make sure that the client expects only a reasonable result. Do not make promises on the outcome, because they are impossible to keep. Explain to clients how the legal process works and that all sides will receive significant court pressure to settle. If your client is more interested in "making a point" than in being reasonably compensated for a wrong, then probably he should not be your client. In other words, client selection is a critical part of legal malpractice prevention. Choose your clients carefully and do not simply accept every potential client who comes to you with a compelling story.
     
     Finally, when you and your client discuss the advisability of settlement, confirm those conversations in writing. The same holds true whenever you have a significant conversation with a client relative to strategy or other important aspects of their case. Although their case might only be one of many you are working on, it is very likely one of or the most important thing going on in the client's life. Give your client the impression that you understand that to be so.

Board of Governors Adopts Grievance Form
   The Board of Governors of the Virgin Islands has adopted a new Grievance Form to expedite the filing of complaints against attorneys. Tom Bolt, President of the Bar Association, commended the members of the Bar's Professional Ethics and Grievance Committee for their work in bringing this project to fruition.
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What is the Standard of Care in Determining Legal Malpractice
   ALPS claims statistics show that one of the reasons why plaintiffs' personal injury attorneys are the number one source of malpractice claims is that allegedly they occasionally settle suits without their clients' consent.
Click here for More...
Succession Planning for Solo & Small Firm Practitioners
   Recently several Virgin Islands solo practioners' untimely deaths created havoc for the respective attorneys' clients. Succession planning could have alleviated much of the confusion. ALPS Risk Manager Bob explains steps that attorneys can take now to assist their clients.
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Current Rules Requiring Truthfulness and Honesty in Lawyering
   The ABA Model Rules of Professional Conduct require truthfulness and honesty in lawyering. VIBA presents a compilation of same.
Click here for More...
Opinion of Professional Ethics & Grievance Committee
   The St. Croix Committee of the Bar's Professional Ethics & Grievance Committee has issued the following opinion.
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