DOES YOUR LAWYER HAVE MALPRACTICE INSURANCE?
“Knowledge is power” is our firm's mantra. We believe that potential clients should arm themselves with certain basic information before they make the consequential decision to hire a lawyer to represent them in a personal injury matter. Toward that goal, we put out lots of content intended to assist clients on this journey of education. This blog is intended to discuss one more piece of information (albeit one-piece frequently ignored) we believe a client should have before making a hiring decision; does the lawyer have malpractice insurance?
What is Legal Malpractice Insurance?
Simply put, legal malpractice insurance is a specialized insurance policy intended to cover certain acts or omissions by an attorney during the representation of a client that causes the client to suffer financial harm. In concept, it's very similar to medical malpractice insurance that protects doctors when their deviation from the standard of medical care harms a patient. Both doctors and lawyers are human, and mistakes can and do happen. It is important to remember that not every bad legal outcome is malpractice, far from it. Just because a jury didn’t return a verdict in your favor or the verdict wasn’t as large as you had hoped, doesn’t mean malpractice was committed by your lawyer. We’ll discuss some of the more common types of acts and omissions that give rise to malpractice claims below but it's important to state this point upfront.
Why Should You Care Whether Your Lawyer Has Malpractice Insurance or Not?
First, unlike doctors, lawyers in Massachusetts are not required to carry malpractice insurance and many are uninsured. Also, only four states Alaska, New Hampshire, Ohio and South Dakota require lawyers to tell their clients whether they have malpractice insurance. In Massachusetts, it’s up to the client to get the answer to this important question. Second, if your lawyer’s negligence causes you financial harm you want to know you have some protection. For a simple example, if you were injured in a car accident because another driver ran a red light, but your lawyer waited too long to file your case in court, you could lose your right to pursue the other driver or the other driver’s insurance company for your damages. You’d be out of luck. If your lawyer had malpractice insurance, however, you could attempt to collect what you would have been entitled to from your lawyer’s malpractice insurance company. If the lawyer does not have insurance and they don’t have sufficient individual assets to fully compensate you, you may be left with no remedy. This is an oversimplification of course, but it drives home the reason why you should care.
What Are Some Common Mistakes Lawyers Make That Lead to a Malpractice Claim?
Failure to Know the Law
Here is a good reason why lawyers often specialize in certain areas. It’s difficult and dangerous to be a legal jack of all trades. According to American Bar Association, failure to know or apply the law accounted for 11.3% of all malpractice cases.
During the course of any legal representation, getting sufficient information about the issues involved in the case is obviously crucial to a successful outcome. Not uncovering information that was uncoverable by proper and available discovery methods accounts for approximately 9% of all malpractice claims.
Failure to File Documents
Accounting for just slightly less than inadequate discovery claims, this accounted for 8.8% of all malpractice claims.
Failure to Know and Calendar Deadlines
Our legal system puts strict deadlines on how long we have to exercise certain legal rights. If we fail to act within these deadlines we can lose our right to seek legal redress. While some attorneys merely forgot to make note of these deadlines, others didn’t know them at all, accounting for almost 13% of all malpractice cases.
Claims of procrastination were very common, accounting for 5.9% of malpractice claims.
Failure to Obtain Client Consent
We as lawyers act on behalf of clients but we don’t have the right to make case dispositive decisions without the client’s consent. Clients must be informed of all alternatives for resolution and the risks involved with each.
Conflict of Interest
Lawyers should never have a conflict of interest when working for a client. Conflict of interest allegations accounted for 5.3% of all malpractice cases.
Approximately 5% of all malpractice cases arose out of allegations of fraud or criminal conduct by the lawyer.
How Can You Find Out if Your Lawyer Has Malpractice Insurance?
In Massachusetts, lawyers are not required to carry malpractice insurance and some don’t. They are however obligated when they register with the Massachusetts Board of Bar Overseers to disclose whether or not they have coverage. So, a simple search on the Board of Bar Overseers website will tell you if your attorney has insurance as well as whether he or she has ever been the subject of public discipline. It will not however tell you how much insurance the lawyer has if they do have a policy. If you wish to know this additional information you will need to ask the lawyer.
Do Your Homework Before You Hire an Injury Lawyer
If you have been injured in an accident the last thing you need is to choose the wrong lawyer to help guide you through the process of getting compensated. Choosing the right injury lawyer for you and your situation is a major decision, and we sincerely want to help you make the right choice. In addition to taking the advice we suggest in this article, we hope you’ll take the time to read our free download that will make the hiring process more informed. You can check it out at HireTheRightAttorney.com.