When Lawyers Go after Peers: The Boom in Malpractice

Article excerpt

Hilton L. Stein, a gregarious fellow, seems an unlikely candidate to be an outcast, but he revels in the role. "I'm never invited to any golf outings, I can tell you," he said, laughing.

Edward Freidberg is no less a pariah, excluded from the lunches and dinners at which contacts are made and deals done. But then, he said, "I'm not a very social creature."

Stein and Freidberg are lawyers who make a living suing lawyers, and a good living it can be these days, with legal malpractice cases more prevalent than ever and few lawyers vying to take them. But among their colleagues in the legal profession, these practitioners are not popular.

"I think I have their healthy respect," said Freidberg, who heads the five-member Freidberg Law Corp. in Sacramento, Calif. "But no, they don't like me."

Stein, who works with two associates in Montville, N.J., is more direct.

"This practice is hell," he said. "The lawyers we sue all take it very personally; they're angry and nasty. Other lawyers think we're scum; even judges look on us disfavorably."

No one seems to know for certain how many legal malpractice suits there are nationally, but there is agreement in the profession that they are on the rise. Ronald E. Mallen, a partner in Long Levit of San Francisco and co-author of the book "Legal Malpractice," said he had to read some 600 cases before writing the first edition, which was published in 1977.

"Now I read 600 or 700 cases a year, just to keep up," he said.

The surest sign of the increase may lie in malpractice insurance bills. "In 1970, lawyers were paying less for malpractice insurance than for car insurance, and a lot of insurers were just throwing it in for free," on other policies, Mallen said. Today, premiums of $10,000 to $15,000 a year for one lawyer are common.

Explaining the growth in malpractice suits exposes a vast gulf between lawyers for the plaintiffs in such cases and lawyers for the defense.

Mallen, who usually works for malpractice defendants, points to a lawsuit-happy segment of the population, the same people who he says have fueled a general boom in litigation.

"They're looking for the afterlife through lawsuits," he said. "They're the sort of people who think they should be cared for for life on a minor workmen's comp case."

Even plaintiffs' lawyers acknowledge that most people who come to them with hopes of filing legal malpractice suits have claims that either are groundless or cannot be won.

Donald B. Hilliker, a partner at Pope, Cahill Devine in Chicago who specializes in defending against legal malpractice claims, said growth in the field reflected the passing of a time when a person's lawyer was likely to be a friend _ an out-of-court relationship that tended to deter malpractice claims.

This "commercialization of lawyer-client relationships," Hilliker said, has run about 15 years behind the same change in doctors' relations with their patients, just as the growth of legal malpractice claims has lagged behind the explosion of medical malpractice suits.

From the plaintiffs' bar, however, comes a simpler explanation.

"There are idiots out there practicing law," Freidberg said. "I would say one in four trial lawyers is incompetent or routinely negligent." And clients, he said, have gotten wise.

One of his cases began when a lawyer let the five-year time limit for filing his client's medical malpractice suit lapse. Long after an appellate court had refused to extend the filing period, the lawyer continued to tell his client that the appeal was alive. The client discovered the deception, went to Freidberg and won a $350,000 settlement from his former lawyer's insurance company.

Stein said his experience working for an insurance company in the mid-1980s, defending lawyers against malpractice claims led him to switch sides. …