TO WIT: NOT IN KANSAS ANYMORE
I am now ashamed to admit that throughout my long and appropriately lackluster career, I have always enjoyed the company of my colleagues. Maybe it’s because no one else will talk to me, but either way, every six months or so, I schedule a lunch with at least one of them. Good thing, too, for it is just from such a gustatory enterprise that this tale springs.
The lunch companion is question has been a close professional friend of mine for 20 years, and during that time we’ve had lunch together, oh, at least three times. He is professional, polite and meticulous, well regarded by all who know him. The worst thing I ever heard said of him is that he is the sort of guy who is probably still married to his first wife.
Hence, I could hardly believe it as he told me over his wilted salad that he had just been sued for malpractice.
“I just don’t understand it,” he moaned. “I’ve represented this client for a long time. I represented her father before her. I’m even a godfather to one of her kids.”
I know you want all the lurid details. God knows I did, but I can’t tell you. He swore me to confidence, and I would never betray the trust of an old friend like Bill Miller – that’s William Ezekiel Miller III, of Miller, Smith and Doyle, here in town – I just couldn’t do it.
But the whole thing got me to thinking. Used to be no one ever sued a lawyer for malpractice. Used to be lawyers were revered, honored, paid, and some were even allowed in church.
My, oh my, how things have changed. Today suits against lawyers for malpractice are commonplace, and I have to ask how this happened. How did our once hallowed profession come to this? Can you imagine the likes of Thomas Jefferson ever being sued for malpractice? Bastardy, yes, but malpractice, never.
Somewhere in the fairly recent annals of our profession there must be tracts that lead to the path upon which we now tread so cautiously. So, in search of truth as always, I recently hied me off to the county library to see if I couldn’t pick up the spores of this malodorous trail, the better by which to expound on our dilemma.
As far as I can determine, the first reported case of legal malpractice in our jurisdiction was filed in 1923. The defendant, Charles Whitaker Cretin, had undertaken to represent Brunhilde Schmaltz I a hotly contested divorce action against her husband, Horace Schmaltz, son of Izzy, the wealthy chicken fat baron.
Things turned out badly for Brunhilde in the settlement. Convinced that oleo would replace chicken fat as the grease of choice before the year was out, Cretin pushed Brunhilde into a settlement that netted her only a bag of marble, a portion of which Cretin kept as his fee.
Since legal malpractice was not then recognized as a cause of action, she filed her claim as one for unjust enrichment. The court, though traditionally thought to be insensitive to the problems of women in those days, immediately recognized the injustice done to her and ordered Cretin to return his fee to Brunhilde at once. Cretin took his appeal all the way to the state Supreme Court, which, in a rare unanimous opinion, ruled that practitioners of family law should always be prepared to lose their marbles.
Well, after Cretin’s Debacle, as it came to be known, hit the papers, it was as if a dam had burst. Years of pent-up client hostilities came flooding over the crumpled breastwork, and legal malpractice suits began to proliferate like bunnies.
Everyone was suing his or her lawyer. And, of course, everyone who did needed a lawyer to do it. Half the bar was furious, the other half damned busy.
Before too long, specialists began to emerge, lawyers who did nothing but sue other lawyers for malpractice. By far, the most renowned of the breed was Pusillanimous Baxter. He though his career had hit rock bottom when he couldn’t even make a living doing family law, and he was giving serious thought to taking a job with the railroad as a porter when fate intervened. He was in his office one day packing up his file when a client walked in without an appointment and asked him if he would be willing to take a case against another lawyer.
At first he was reluctant to sue a colleague, but he changed his mind when he heard how unjustly the client had been treated. He took the case but, unfortunately, missed the applicable statute of limitations. In order to placate the enrage client, he agreed to sue himself and this time there would be no mistakes. In an effort to save money, he also represented himself, and after protracted discovery he was able to negotiate a huge settlement. Of course, after fees and expenses, there was precious little to distribute to the client, but at least justice had finally been served.
The point of all of this is that it’s a hostile environment out there. Lawyers no longer have the luster of infallibility they once enjoyed. So more than ever, dot your “i’s,” cross your “t’s” and pray. We all make mistakes, every one of us, and the best that you can hope for is that the colleague who files suit against you on behalf of a disgruntled client is as careful and conscientious as you are. Then you have nothing to worry about.
© 1999, S. Sponte, Esq.