|Oregon State Bar Bulletin APRIL 2012|
By Bruce Schafer
Lawyers are like people. Oops, I mean, lawyers are like other people! In my 25 years at the PLF, I have witnessed a wide range of lawyer behavior, from the worst to the best. I have handled claims where the lawyers defrauded clients or others into giving them large sums of money; where lawyers took fees with no intention of doing the work; where the lawyer was so incompetent it was a wonder that he made it through law school, let alone passed the bar. These are examples of the worst.
Thankfully, the “worst” comprise a tiny minority of the thousands of lawyers I have worked with over the years. The great majority strive to practice competently, are loyal to their clients and do their best to conduct themselves ethically and consistent with the ORPC. They may make mistakes or be accused of making mistakes from time to time, like people in other professions and occupations. In short, from my vantage point, lawyers are like other people, notwithstanding the stereotypes and lawyer jokes.
With this backdrop, I offer these observations:
Stress and professional liability claims go hand-in-hand; stress is either a cause of the claim or a product of the claim. For persons living on the edge or sinking into the abyss of depression, substance abuse, financial ruin or other personal chaos, the claim is usually a product of what is going on outside of the office, and the claim may be the least of the covered party’s problems. On the other hand, many a high-functioning, conscientious lawyer is affected by either his or her error or the accusation of malpractice or wrong-doing. In this scenario, the claim triggers the stress or distress, which can range from mild to severe, depending upon the makeup of the lawyer, the nature and magnitude of the claim and the lawyer’s support system (or lack thereof).
Many lawyers’ emotional responses to claims evolve during the life of the claim. The initial reaction may be anger, denial, shame or fear. As the lawyer “gets used to” the process, those feelings may become less acute and the lawyer is more able to objectively deal with the claim. The experienced claims attorneys at the PLF and defense counsel (where retained) are able to reassure the covered party and convey the sense the claim can be managed. The reasonable goal is to manage and cope with the stress generated by a professional liability claim. It is difficult to completely eliminate it. Motivated, conscientious professionals care; that is to be expected and respected.
From my experience, the first claim is the one most likely to affect the lawyer. The claim symbolizes imperfection, which can then initially be elevated to feelings of general incompetence. Perhaps the lawyer has been judgmental of other lawyers who made mistakes; now she judges herself just as harshly. The “first-timer’s” anxiety is also fueled by fear of failure and of the financial, reputational and existential consequences. Will I get through this? Well, by and large, they do get through it. Subsequent claims, although not welcomed, are at least less fearsome.
A significant measure of a person is not whether he or she avoids trouble, but how he or she meets it when they find each other. I have been impressed with how brave most of our covered parties are when faced with a claim. Notwithstanding the unpleasantness or threat of facing accusations of incompetence or worse, with the range of potential adverse consequences, most of our covered parties continue to function professionally and meaningfully participate in their defense and “make it through.” Bravery involves overcoming fear or surviving a difficult experience. Among the bravest are those lawyers whose cases go to a jury trial. While the plaintiff is presenting its case, the covered party has to sit and listen to opening statements, plaintiff’s story and expert witnesses’ criticisms of the covered party’s conduct. In some cases, the prayer exceeds the coverage. I have developed immense respect for many of our covered parties, not because of their perfection as lawyers (they weren’t perfect), but because of how they coped with the claim.
As I have observed in the crucible of professional liability claims, the above are just a few examples of how lawyers are no different from other people. They fear failure. They desire approval and respect. Some feel unjustly accused, and some are. Many make obvious mistakes that cause little or no harm. Others commit small errors that cause a lot of harm. Some want to apologize or compensate to make it right. Others want to fight. For most, the experience is unpleasant, but they get through it. Most meet the challenge with their integrity, decency and careers intact. Not only do they survive the experience, but they earn our respect by how they cope.
ABOUT THE AUTHOR
Bruce Schafer is a claims attorney with the OSB Professionality Liability Fund.
© 2012 Bruce Schafer