One of the worst experiences of practicing law is realizing you’ve missed a deadline in a case.
It might have been a statute of limitations or a discovery deadline. Or maybe you made a mistake entering a date on your calendar, and the event you erroneously thought was happening next week actually occurred yesterday.
Whatever the circumstances, reality hits you like a thunderbolt. You’ve screwed up. Maybe big-time.
What to do?
If you’re like most lawyers, you’ll experience a wave of panic. It will be a tsunami of disbelief, self-condemnation and catastrophizing. Resist this. It will pass.
At this time the Fight or Flight response will probably kick in. Your glands will start pumping, your pupils will dilate and your heartbeat will increase. Your only objective will be to escape this horror. Resist this too. It will subside
Eventually, your brain will resume functioning more or less normally, and this is perhaps the most dangerous stage. You will start thinking of ways to get out of this jam, or to fix the problem, or to do something else that might only worsen the situation.
5-Step Response Plan When You Drop The Ball
For a safer response, try these steps:
1. Don’t react out of fear or panic. Don’t dig your hole deeper or make admissions that will haunt you in the future.
2. Review your professional liability policy. What does it say about your obligation to report problems to your carrier? Most claims-made policies require you to report any act or omission that might reasonably lead to a claim against you. This is a broad requirement that covers both actual and potential claims. Clearly, a mistake like a blown deadline must be reported.
3. Don’t delay in reporting. If you drag your feet in notifying your professional liability insurance carrier about the problem, you might jeopardize your claim, or you might lose coverage altogether.
4. Ask for help from your insurer. Not all mistakes are fatal or permanent. Some can be fixed. In other cases, the damage can be contained or mitigated. If you’re insured through Alta Pro Insurance Services, you get access to the toll free Reminger ProLink for claims assistance and repair.
5. Cooperate with your malpractice insurer. This is their business. They know what to do. Follow their guidance on how and when to tell the client about what has happened.
The Missed Deadline: A Case Study
What are your obligations to your client, to your professional liability insurer, and to others when you discover you’ve dropped the ball in a case? Here is a case study from South Dakota, as reported by Seth L. Laver and Professional Liability Matters.
In the decision, available here, the court reversed the dismissal of a malpractice claim against an attorney who handled an underlying auto accident matter on behalf of client. The attorney knew that she had failed to timely serve the underlying defendant. While the attorney testified that the client knew that the adversary was not served, the attorney did not tell the client that it was she–the attorney–who was to blame. Although the attorney placed her malpractice carrier on notice, she did not inform the client of the mistake.
The court addressed an attorney’s obligation to keep the client reasonably informed, which included the requirement of reporting an attorney’s own errors to the client. According to the court, the “legal duty to disclose such an act, error, or omission serves the purpose of ensuring that a client is able to make an informed decision about how best to proceed under such circumstances.”
Next, the court addressed the implications of the statute of limitation. Of importance was when the malpractice claim accrued (i.e., when did the client know of the malpractice?). The court concluded that it was beyond debate that the attorney had an obligation to inform the client of the error as of the date that the underlying complaint was dismissed, if not sooner. According to the court, the initial act of failing to timely serve the underlying defendant certainly constituted malpractice but, importantly, the court decided that ongoing questions remain as to whether the alleged ongoing tortious conduct in failing to disclose this malpractice supports a separate claim for legal malpractice therefore delaying accrual.
The decision provides an important reminder of our obligations upon discovering a potential breach and the implications upon the applicable statute of limitations. Often, step one must be to notify the carrier and to discuss strategy with defense counsel. There may be coverage implications for admitting fault to a client without consulting with the carrier first. That said, the sooner the client is clearly aware of the issue, the sooner the claim accrues which may provide for a statute of limitations defense down the road.