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The lawyers’ lawyers: Attorneys seek peer assistance to fight malpractice claims, understand ethics rules

By: Amy Karon, [email protected]//September 17, 2012

The lawyers’ lawyers: Attorneys seek peer assistance to fight malpractice claims, understand ethics rules

By: Amy Karon, [email protected]//September 17, 2012

A lawyer can make a tough client.

For attorneys tasked with representing their fellow legal professionals, problems tied to ego, complexity and sensitivity abound.

“It’s not necessarily a position for someone with 10 years of experience,” said Eric Vugt, of Milwaukee-based Quarles & Brady LLP. “It takes some status and gray hair, or no hair as the case may be.”

Although most attorneys spend their careers advising others, too often they do not seek help when their own livelihoods are on the line, said Claude Covelli, a lawyer at Boardman & Clark LLP, Madison, who represents insurance companies and their clients, including attorneys facing malpractice lawsuits or Office of Lawyer Regulation investigations.

Attorney Claude Covelli, of Boardman & Clark LLP, Madison, represents lawyers in Office of Lawyer Regulation investigations and malpractice lawsuits. (Staff photos by Kevin Harnack)

“Lawyers kind of pucker up when they get a malpractice claim,” he said. “They don’t think things through clearly, and do foolish things. If they had sought outside advice immediately, they may have been able to correct the error, if there was an error.”

As malpractice claims increase and ethics rules become more rigorous, however, more attorneys will need to seek the counsel of their peers.

“People are less hesitant to sue their lawyers now,” said Covelli, noting that many malpractice insurance contracts now include an agreement to pay $5,000 to $20,000 for the cost of defending a grievance.

Mark Tuft, president of the Association of Professional Responsibility Lawyers, a national nonprofit organization with nearly 500 members who primarily represent attorneys in disciplinary cases, agreed that lawyers’ need for representation is on the rise.

The rules governing attorney conduct are growing more complicated, Tuft said, which is leading to a greater need for attorney counsel.

“There is a lot more regulation than when I started out,” he said, “and also liability, malpractice and other torts against lawyers.”

It can be a tough field for young lawyers to break into, though, Tuft said.

“We have to be extremely knowledgeable about the work that our lawyer clients do,” he said. “We need a tremendous understanding of the difficulties and challenges and stresses that they face.”

Vugt, who has been working as a lawyer for more than 35 years, spent more than two decades representing consulting and financial service groups for Quarles & Brady before becoming the firm’s unofficial general counsel about five years ago. He now helps his approximately 470 peers answer ethics questions, handle disputes with clients over fees and quality of work, and resolve claims as efficiently as possible.

Strict rules now govern business relationships between attorneys and clients, Vugt said. State bar associations also have varying rules limiting how law firms can market their services and defining attorney’s duties when asked to provide a court with information during litigation.

“There’s a whole variety of ways ethical rules have to be applied,” Vugt said.

That only adds to the need for a lawyer’s lawyer to be seasoned, trustworthy and excel at risk management, he said.

“Handling litigation is a big part of this job,” Vugt said, “and having done that for clients is key to doing it for the firm.”

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For those who can break into the niche market, Tuft said, the work can be gratifying.

“It is a great field to be in, very interesting, very challenging and can be very rewarding,” he said. “You learn a lot about other peoples’ practice. You learn a lot from your clients.”

Kevin Milliken, an attorney at Madison-based Relles, Milliken & Scheffer LLP whose specialties include professional license defense, said he enjoys helping colleagues through emotionally trying situations.

Kevin Milliken, an attorney at Madison-based Relles, Milliken & Scheffer LLP whose specialties include professional license defense, said he enjoys helping colleagues through emotionally trying situations.

“I think it’s more of giving another lawyer an objective viewpoint,” he said. “You need to fully understand the unique facts and the decisions someone made and what brought them to those decisions.”

That complexity and the unique challenges of lawyering for lawyers is part of the draw for those who do it.

Don Campbell is an incoming board member of APRL and an attorney at Michigan-based Collins, Einhorn, Farrell & Ulanoff PC. He spent 10 years as a prosecutor pursuing grievances against attorneys before switching to the other side.

“I’ve stayed as a grievance defense attorney,” he said, “not for the money but for the challenge and enjoyment of what I do.”

Campbell agreed the rules governing attorneys have become much more sophisticated, creating “pitfalls for the unwary,” and echoed Covelli’s view that lawyers should seek help on conflicts or ethics questions early, instead of waiting until they are embroiled.

“There’s no shame in going to somebody else to seek advice on how to handle the ethics,” Campbell said, “asking, ‘What are these rules and how do they apply to my situation?’”

Convincing an attorney client to seek help is just part of the challenge, however.

“Lawyers tend to pick facts or get tangled up in details more than the average human being,” Covelli said, adding that can rob them of sympathy before a judge, investigator or jury.

“There’s generally, within juries, a perception that they don’t like lawyers on the one hand, and that a lawyer should be like a guardian angel and save their client on the other,” he said. “It’s kind of a double-edged sword.”

But one of the biggest challenges representing other lawyers in disciplinary investigations or lawsuits, Covelli said, is being able to distill cases so jurors lacking legal experience can understand them.

“A lot of it is being a good trial lawyer,” he said, getting to the heart of the issue and deciding how to make it simple.”

Though the approach might be different, Milliken said, working with attorney clients offers a reward all lawyers seek: vindication.

“Like all things in law practice,” he said, “it’s rewarding to have somebody come to us with a problem and get them through it.”


Navigating OLR investigations and malpractice lawsuits

Too often, attorneys facing questions from the Office of Lawyer Regulation disregard the potential severity of the matter, attorney Claude Covelli said.

“Getting a lawyer to understand they need representation early is a difficult task,” he said. “They don’t think they’ve done anything wrong, and they talk to the interviewers without really researching the facts and sometimes make statements that are inaccurate.

“When you’re a lawyer, nobody cuts you any slack on that.”

Covelli, of Boardman & Clark LLP, Madison, said about one-tenth of his practice is representing attorneys in OLR investigations and about one-third is representing lawyers in malpractice lawsuits.

To avoid problems, Covelli said, attorneys facing malpractice claims should do two things as early as possible: seek outside advice and notify their malpractice insurance provider so they can ensure their ability to file a malpractice claim if needed.

“If they don’t do so within the policy period, they may have no insurance,” he said. “A lot of times, lawyers are afraid to give notice for fear their rates will go up, but it’s critical they do so right away.

“And if there is no claim, they’re not going to go up.”

He urged lawyers not try to handle problems alone.

“When you’re dealing with grievances and rules, often one would think ethics would be black and white,” he said. “It just doesn’t work that way.”

Wisconsin lawyers with questions about the state’s attorney conduct rules can call the State Bar of Wisconsin’s ethics hotline at 608-250-6168 or 800-444-9404, ext. 6168.

The national Association of Professional Responsibility Lawyers also has resources, including a list of Wisconsin members who specialize in defending lawyers in disciplinary investigations.

See for details.

— Amy Karon


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