In my 25 years of handling legal malpractice claims, I have seen a little bit of everything. I have responded to frivolous pro-se complaints that are impossible to comprehend. I have handled claims where an attorney made claims for fraud and punitive damages against another attorney without any factual basis. I have defended claims where the statute of limitations had clearly expired. When a pro-se claimant makes claims that lack a legal basis, this is understandable. However, when a lawyer asserts a claim against another lawyer and that claim lacks a legal or factual basis or reflects a basic misunderstanding of the law or the Rules of Professional Conduct, this is troubling. 

I recently received a complaint against a lawyer alleging that the lawyer was negligent due to the lawyer’s failure to notify the plaintiffs of their right to file a malpractice claim against the lawyer. Prior to 2015, I would not have thought much about such an allegation. But in 2015, the North Carolina State Bar made clear in 2015 FEO 4 that it is unethical for a lawyer to inform a client that the client may have a malpractice claim against the lawyer. The lawyer’s conflicting interest in avoiding liability makes it improper for the lawyer to give any advice about the existence of a potential malpractice claim. So, to allege as a basis for a claim against the lawyer a failure to take an action that is clearly prohibited by the Rules of Professional Conduct is a concern. 

Legal malpractice claimants have a right to effective representation and deserve to be made whole when a lawyer negligently causes those claimants to incur damages. But, when a lawyer assumes the representation of a plaintiff in one of these cases, that lawyer should make sure that there is a sound legal and factual basis for the claims that are made. This includes understanding the Rules of Professional Conduct. 

If you have not read 2015 FEO 4, you should commit it to memory. It offers an excellent guide for what you must do when you make a material mistake on a client matter. While you may not give the client any advice about the existence of a possible malpractice claim, you must disclose to the client the material facts surrounding the error and its effect on your continued representation. If you are uncertain whether an error is material, you should err on the side of disclosure. If you are asked by the client whether the client has a malpractice claim against you, you must decline to respond to that question and should direct the client to seek other counsel.