There are plenty of risks associated with practicing law. Errors may occur when you are selecting which clients or cases to take on, pursuing the proper legal strategy, communicating with clients, the court, or opposing counsel, or referring cases. But even if you do everything right, a problem may arise because of the expert or experts you hire.
Lawyers often become involved in matters for which they rely on reports or opinions of other professionals. That information is then used in developing a strategy to help the client or is the basis for the legal advice provided. Brian Anderson, claims counsel for Wisconsin Lawyers Mutual Insurance Co. (WILMIC), says, “Examples of these types of situations include an accountant providing tax advice for a personal or corporate transaction, an appraiser involved in a divorce, a surveyor drafting a legal description, or a bank trust officer dealing with a client’s trust.”
Anderson says a lawyer might assume that the other professional has adequately advised the client concerning the important aspects of the transaction, but that might not be true. “The lawyer may also assume that the other professional competently prepared the documentation or report. That is not always the case.”
Mequon lawyer Kelly Centofanti, whose practice focuses on plaintiffs’ personal injury litigation, says careful lawyers do extensive research on people who they are considering consulting as experts, to determine whether the person truly is qualified by education, training, or experience or all three.
“This can be as simple as reviewing a C.V., talking to references provided by the expert, or interviewing the expert. In medical negligence or nursing home cases, we often find authors of textbooks or articles or utilize educators in the appropriate field. Many times we inquire on our listservs about other lawyers’ experiences with a particular expert.”
So, to get a better understanding of the risks involved when using experts or their reports or advice for your clients, let’s go through some frequently asked questions with Anderson, based on what he sees in malpractice claims.
Can a Lawyer be Sued for Malpractice Based on an Opinion Given By an Expert Hired for the Case?
Anderson: “Even though it is common for a lawyer to rely on documentation prepared or provided by another professional when rendering legal advice to a client, it is important to recognize that there is a risk that the client may assert a claim against the lawyer if the information relied on turns out to be inaccurate and the client sustains a loss. The client may not understand that the substantive legal advice and work that you provided was based on the information prepared by another professional, unless you clearly inform the client of that fact.”
Centofanti adds that the lawyer also has a disclosure responsibility when seeking information and advice from an expert. She says an expert is only as good as the information provided by the lawyer to review.
“Many lawyers don’t provide all of the facts, either to save money or to ‘hide’ bad information. This is a big mistake. Do not hide information from your expert. For example, if the expert’s opinion that a motor vehicle accident caused the client’s permanent neck injury is based, even in part, on the fact that the client had no prior complaints of neck pain, you are in big trouble if there are medical records of prior neck pain. There is no hiding from the facts. If your case is over, better to know now than later.”
How Can a Lawyer Avoid this Potential Risk?
Anderson: “The lawyer should advise the client of his or her role at the time of the initial engagement and communicate what advice will or will not be provided, to avoid any misunderstanding. Make it clear to the client, in writing, that you are relying on the accuracy of the information prepared by another professional. If you are not providing a title opinion or tax advice or recommending an investment strategy, make sure that the client understands that to be the case. Written documentation outlining the scope of your retention is an important safeguard to protect you in the event that the information you relied on turns out to be wrong.”
How Can a Lawyer Make Certain the Expert Advice Being Given is Appropriate, Accurate, and Legally Sound?
Anderson: “If the documentation prepared by another professional is obviously wrong, a client might blame the lawyer for not bringing the problem to the client’s attention. Therefore, you should always review all of the documentation that you rely on to best protect yourself and serve your client. If you have not been provided any or all of the important documentation that you believe is necessary to render an opinion, this should also be brought to your client’s attention. The failure of the lawyer to distinguish, in writing, his or her role from that of other professionals involved in a client matter is often the missing document that exposes a lawyer to a legal malpractice claim caused by the other professional’s mistake.”
Centofanti says in addition to reviewing an expert’s background and credentials, she also considers the person’s dependability. “They must be dependable because once you name that person as your expert in court filings, you are committed. The expert must commit to providing reports in a timely fashion and also to being available for deposition and to testify at trial. A wonderfully credentialed expert who doesn’t follow through is terrible.”
Is a Lawyer Responsible for Information Received from a Client’s Previous Lawyer?
Anderson: “A lawyer may also be exposed to a claim when relying on inaccurate information received by the client’s previous attorney or referral counsel. These types of scenarios include personal injury claims in which the statute of limitation is misidentified, an erroneously drafted QDRO or one that was never completed, or in a bankruptcy case where a client’s debt obligations or assets were not accurately identified or disclosed to the trustee. If a client is damaged and the second lawyer could have prevented the harm but failed to do so, that second lawyer is responsible for causing the damage, even though the original mistake was made by the client’s first attorney.”
Centofanti says, “When I take over a case from another lawyer, I always start from the beginning. I take nothing for granted. And I always make sure the clients are listening to me and not remembering something told to them a long time ago by someone else.”
Depending on the areas of practice, using experts or getting expert advice can be an essential part of your representation. But it is a mistake to assume that the expert you hired is giving the best or most appropriate advice, or that an expert report contains accurate information, conclusions, or legal strategy. Review and check it for accuracy.
If you and your client rely on expert information and it turns out to be inaccurate, the client may assert a claim against you, not the expert, if the client suffers a loss. Many clients might not understand that the substantive legal advice and work that you provided was based on the information prepared by another professional. As their lawyer, it is you who they will come after if a legal malpractice claim is made.
Written documentation outlining the scope of your retention is an important safeguard to protect you if the information you relied on turns out to be wrong. Make it clear in writing to the client that you are relying on information provided by another professional.
Taking these steps can be the difference between an effective use of experts and regretting the use of them. Don’t let another professional’s mistakes become yours. As Centofanti says, “When I take over a case, I always start from the beginning. I take nothing for granted, including the use of experts.”