Episode Synopsis: As a legal malpractice attorney, David Lefkowitz knows all the common pitfalls and administrative errors that lawyers need to avoid. In this episode, Lefkowitz breaks down how a casual conversation with a friend to a failure to meet a deadline could potentially place an attorney in hot water. He’ll also explain how communication and documentation can be your antidote to legal missteps.
Podcast Transcript: The following is a transcript of Episode 18 of The Advocate’s Key podcast hosted by attorney Scott Key. Other episodes can be found at Apple Podcasts, Google Podcast, and Spotify.
David: We talk about a problem in our law school class, where somebody goes and consults with a lawyer about a potential claim, and it’s totally outside the lawyer’s practice area, and the lawyer says, “You don’t have a claim. The defendant has immunity, and you can’t win that claim.” And the clients go home, forget about it, and then a year later, they read that how other people similarly situated recovered a lot of money for the same exact claim that they consulted that lawyer about. You know, the question that the students have to evaluate is, is there a claim against the lawyer? And the answer is yeah because the lawyer provided certain legal services even though he didn’t see himself as being in an attorney-client relationship.
Scott: David Lefkowitz is one of the nicest people you’ll ever meet, and I sat down with him in the podcast, not because of that, but because I wanted to learn ways not to meet David Lefkowitz in a professional capacity. And in this golden moment… Let me back up for a second and tell you that David Lefkowitz specializes in malpractice, plaintiff’s work against attorneys. And in this clip that you just heard, David talks about the ways that we can sort of let our vanity get in the way, or how we can sometimes have a tendency to stray outside of our lane in the proverbial cocktail party or family reunion situation where we end up advising on things we don’t completely know about, and we give incorrect advice in how…in spite of money not having changed hands, how in the span of a phone call or a conversation we can enter into an attorney-client relationship with disastrous consequences.
That’s a monumental moment in the podcast that you just heard, and you’ll also hear in here the six words that are most important to attorney-client relationships and malpractice avoidance and ethics complaint avoidance, the six words that are most important. So, listen in and I hope you learn from David Lefkowitz as I have. David Lefkowitz, thanks so much for joining me on the podcast. I really appreciate it.
David: It’s a pleasure, Scott. Thanks for having me.
Scott: Well, thanks for coming on. One of the things I always do with guests is I have them introduce themselves and I ask a question that could be very factual or it could be deeply philosophical depending on how you take it. But who is David Lefkowitz?
David: That’s a good question, who am I? I am my wife’s husband, I am my two boys’ dad, I am my mom and dad’s son, they’re both alive, which is great, and I’m a lawyer with offices in Athens and Atlanta. I am an adjunct professor at UGA Law School, and I am recently in my seventh decade. I turned 60 on December 18th.
Scott: Oh, my gosh, you know, you look a lot younger than that.
David: I would like to say I feel younger, and usually, I do. Thank you.
Scott: So tell me a little bit… I always ask people, what made you decide to become a lawyer, and was that something you always wanted to do as a kid, was that something that developed in college, or tell me a little bit about your decision to be a lawyer?
David: I don’t really have a clear answer to that. I mean, I’ve always known I wanted to be a lawyer, at least I think I have always known. My grandfather was a lawyer, although he was not a litigator. A funny anecdote, many years ago when I was a little kid, I was at the city pool with my family, and I said something that I shouldn’t have said. I had a bit of a salty mouth back then. And my father grabbed me by the wrist and dragged me, what probably was 100 yards to the men’s restroom where he said he was gonna wash my mouth out with soap. And I don’t remember the incident, but apparently, they talked him out of it while we were walking there, and he said from that point on he knew I was gonna be a lawyer or a salesperson.
Scott: They need to avoid having your mouth washed out with soap. So, where did you go to undergrad, and where did you end up going to law school?
David: I did my first two years of undergrad at the State University of New York, the Oneonta Branch, and then I transferred to Columbia University in Manhattan. And then when I graduated from Columbia, I came down to Atlanta to go to Emory Law School. My expectation was that I would return to New York because, when you live in Manhattan, you don’t think there’s any place else worthy of living. But after I spent a couple years in Atlanta, I realized I’d rather live in Atlanta and rather practice law in Atlanta.
Scott: Did you start off as a litigator?
David: I did. I started out doing your typical insurance defense work at a firm that doesn’t exist anymore, but it was named Carter & Ansley. And we did third-party defense work, car crashes, slip and falls, and then some first-party coverage work as well.
Scott: Were you doing professional malpractice defense back in your defense days?
David: No, not at all. I fell into that when I switched to the plaintiff’s side after a couple of years of being at my first firm.
Scott: And what was it about litigation? Why did you become a litigator versus transactional versus something else?
David: I think it just goes back to the story about the pool. I’m an advocate and I like being persuasive, and I think litigation is the perfect arena for that.
Scott: And I think you mentioned, did you go and practice in New York for a little while before you came back to Atlanta, or did I read that wrong?
David: No, I stayed in Atlanta.
Scott: Okay. And then, when did you make the jump to private practice?
David: So I was in private practice doing defense work for my first two years, and then I switched. I was recruited to join a plaintiff’s firm after a couple of years, and I was with that firm for eight years and then started my own firm. And I’ve been on my own since then.
Scott: What was the switch like? You know, I know a lot of lawyers who switch from…in the criminal arena who switched from being DAs to defense counsel in criminal cases, and I’ve known quite a few people that have, you know, hung out their shingle and done that for a while, and they’ve become district attorneys. What was it like to switch from the defense side to the plaintiff’s side?
David: I always knew I wanted to do plaintiff’s work. I would prefer to do plaintiff’s work. That’s just where my heart is. I’d rather represent victims rather than insurers. So, it was really just…I just fell into it. I was working at the firm, it was Carter & Ansley. There was a lawyer there. His name was Michael. He was married to a woman at the time named Rebecca, and Rebecca worked at this plaintiff’s firm that at the time was Jones Brown & Brennan. And we were out drinking one night or having dinner one night and she said, hey, somebody at her firm’s leaving. Would you be interested in doing plaintiff’s work? And she said, “By the way, don’t tell Michael I’m asking you.” I said, “Actually, I’ve always wanted to do plaintiff’s work. So I’ll come in and talk to you and, you know, see if I like it.” And I did, I interviewed, and I thought everybody was nice. And part of their practice was legal malpractice, not a lot of it at the time, but a part of it was legal malpractice. And then once I joined, I kind of fell into doing more and more legal malpractice, and then after several years, I was like, you know, “I could do this on my own.” So, that’s really the way it played out.
In terms of what was it like switching, you know, we still kept track of our hours, generally speaking. However, we weren’t getting paid by the hour, we were on a contingency fee, so the money was coming in haphazardly and his lawyer will understand. But it was fine. I liked it. My heart was right that I belong on the plaintiff’s side of the ledger.
Scott: Now, is that unusual for plaintiff’s attorneys to track their hours? You know, I know a lot of… So, you know, obviously, for those that don’t know, most plaintiff’s lawyers and I suppose just about all plaintiff’s lawyers are getting paid on a contingency, meaning, you get a percentage of whatever you recover, whether that be through a settlement, or a verdict, or something like that. And then, you know, criminal defense attorneys tend to charge a flat fee and don’t bill by the hour. Though I know some criminal defense attorneys who track their time as if they bill by the hour. I don’t think I’ve spoken to a plaintiff’s lawyer who’s…I mean, there may be more than I know, but that track their hours that way as if they’re billing by the hour. Say a little bit why that’s a good practice and why it was that your firm did that.
David: We did it for first…for two reasons, the first one being to just make sure we were being efficient with our time and that we could account for the time that we were at the office, you know, whether it was 8 hours or 10 hours. And secondly, there are cases where you make a demand for attorney’s fees. And back when I first started practicing on the plaintiff’s side, if you wanted to recover for attorney’s fees, you almost always had to show your hours, your actual hours that you had in the case.
Now, there’s some recent case law that allows you to present to the jury or the judge that you’re on a contingency fee and ask to be awarded your contingency fee. So it’s less significant, but I still keep track of my hours to make sure I’m being efficient to kind of get an idea of how much time these cases take.
And also there’s a provision under Georgia common law that says that if a client discharges you, you can have a contractual provision either by the hour for the time you have in it or your contingency fee, whatever that amount is. So let’s just say you’ve been offered 100 grand and your contingency fee is a third, and you’re discharged by the client after the $100,000 offer has been made, you’re entitled to your 30 contingency fee, a lien on the case for that amount or your hourly fee, you know, whichever is greater, assuming you put that in your fee contract.
Scott: Just generally, in your experience, how do the two-track this? And I’m just speaking the abstract. I’m not trying to get into your personal stuff. But generally, are you ever surprised that the hourly actually tracks us more time than the potential contingency fee in those situations?
David: You know, you never know when going into the case. So if a case resolves relatively quickly, definitely, the contingency fee is going to be larger than what the hourly fee would have been had you been charging or had I’ve been charging on an hourly basis. If a case goes on for a really long time and then the recovery is less than you expected before, then it may turn out that your contingency fee is less or considerably less than what the hourly fee would have been had you been charging that way. But that’s just the nature of a contingency fee and that’s why it’s widely accepted, even it would be perceived as a windfall because of the understanding that you may have 10 cases that aren’t windfalls and then one case where you do have a windfall, meaning you settle and get a nice fee…a large fee that’s not necessarily commensurate with the amount of time you put into the case.
Scott: This is a more of a technical or technological question. What are you using or how do you track your time on a daily basis?
David: So I don’t have that many files like I did when I was doing insurance defense, and if I have a phone call or if I spend time researching documents, reviewing documents, researching cases, I just jot it down on a piece of notepaper and put it in a folder within the file so that I always have it.
Scott: So paper files. This is just a ledger, just an inside of the paper file.
David: Yeah. I mean, if I know… I do have some files that I bill by the hour, ethics defending bar complaints or I think expert witness issues where I do keep up with the billing on a daily basis on my computer.
Scott: Okay. So I think what I heard you saying just now is that you…it’s generally paper-based and you’re not tracking it with software.
David: I’m never tracking it with software. It’s generally paper-based, and every now and then, I just right into a Word document. I just literally would type in what I’ve done and the amount of time, so if I know I’m sending a formal invoice rather than just keeping track of the time for my interest.
Scott: Right. And let me ask you this. Are you almost exclusively? Are you exclusively professional on malpractice now?
David: On the plaintiff’s side, yes. For probably 10 or 15 years, I was handling medical malpractice as well, but I don’t do that anymore. On the plaintiff’s side, yes, I’m only handling legal malpractice cases. I’m also handling some other matters, ethics issues, law firm [inaudible 00:12:46], fee disputes, occasionally, I take on engagement as an expert witness so that that would not be formally plaintiff’s legal malpractice work.
Scott: It sounds like most of what you’re doing though involves lawyers and the practice of law.
David: Most everything, yes.
Scott: Okay. And how did you develop that interest?
David: So that takes me back to the second firm that I was with. It was called Jones, Brown, & Brennan, and then by the time I left, it was Jones, Copeland, Lefkowitz, & Greer. But that firm handled an assortment of complex plaintiff’s litigation, legal malpractice, medical malpractice, business litigation, some personal injury but only if it was catastrophic in nature. And Taylor Jones was really one of the very first lawyers to handle legal malpractice on a regular basis. If you look in the Georgia Reporter and look him up, he was involved in a lot of the seminal cases involving legal malpractice law. So we had a fair amount of those cases and I did not mind them. In fact, I tended to enjoy them where some people don’t wanna touch those types of claims. So, I just started handling more and more of them, and as I had success with that type of claim more and more, the claims were sent to me within the firm, and then more and more of those claims [inaudible 00:14:00] to me while I was still at the firm.
Scott: You know, you mentioned a minute ago or just a second ago in your answer that, you know, a lot of people don’t wanna touch those. What’s it like with your brethren in the legal profession when you go to bar functions and things like that and they find out what it is that you do?
David: Have any issues? I would say that…and most people would agree, I think that doctors tend to circle the wagon around other doctors who have committed malpractice, and that’s less true with lawyers. I haven’t really had any significant issues where lawyers are saying, you know, “Screw you, I don’t wanna talk to you or have a drink with you because you sue lawyers.” As long as I’m not suing them, I think they’re fine with it.
Scott: And how many years have you been doing on the plaintiff’s side legal malpractice work?
David: Since 1990, so 31 years plus a little, so a very long time.
Scott: A very long time. And in the time that you’ve done that, you know, for listeners and I’m gonna assume that most of my listeners are attorneys, are there common things that you see or lessons that you’ve learned or things that…? If you could speak to, let’s just say new lawyers or lawyers that are just building their practice or lawyers who maybe are leaving a DA’s office and hanging out their shingle or maybe leaving a firm and kind of going out on their own or maybe even just people who’ve just passed the bar, what are some of the lessons that you’ve learned or things that you’ve seen that are just common trends in the malpractice cases that you brought over the years?
David: So I will say that…and this may be a little counterintuitive or perhaps people will recognize it as obvious, I’m not quite sure, but most legal malpractice claims arise out of administrative type errors, not docketing a file correctly, not recognizing when applications started, and therefore not knowing when it runs, not taking note of ante litem notice requirements, not conducting title searches properly, not getting service on a defendant in a timely fashion, you know, most people realize or know that in a personal injury case, your statutory limitations is two years, and most people think that means get the suit filed within two years, and it does mean that. You also need to get the defendant or defendants served promptly. And if you file the suit right at the very end of the statute, you get a little bit of wiggle room in terms of how much more time you get to serve the defendants. Regardless of when you file suit, you have to promptly get the defendant served, and if you were to read all of the cases that come out of the appeals courts here in Georgia dealing with statute of limitations, I’d say that half of them deal with the failure to get the defendant served on time because, technically, if you file suit on time but you don’t get service on time, that is still a statute of limitations defense that’s filed by the defendant. So, the technical aspect of getting the defendant served, filing in the correct court, naming the correct defendants, not waiting until the last minute.
Procrastination is a really big problem, and if you get a case with a two-year status and you get it two months after the incident that gives rise to the claim and you sit on the case for 16 months or 20 months or wait until…otherwise wait until the last minute, you’re putting yourself in great danger because, what if you named the wrong defendant? Sometimes it’s John Smith Sr., who caused a crash, but you just named John Smith, then you get the son served by mistake. You don’t realize that you have to [inaudible 00:17:55] and the dad’s not around, and you could have had the dad served without any problem whatsoever. If I served him, he’s served with a process. For those of you who don’t handle personal injury law, you could have had the dad served very easily had you had the time. But when you filed the last minute, you don’t give yourself the luxury of time, and it’s very easy for mistakes to happen.
So I would say most of the cases that I have arise out of those types of administrative. And then you’ve got claims that arise out of conflicts of interest. I resolved one recently that’s…I can’t get into it but I’ll just tell you someone who’s representing both sides in a matter. You can’t do that. You can’t represent the husband and the wife…
Scott: You’re not talking about co-defendants, you’re talking about adverse parties.
David: I’m talking about…yes, parties that became adverse, and they became adverse because the lawyer helped one person with the client that the lawyer already had attorney-client relationship with. So, you know, knowing your conflicts, knowing who you represent, knowing who you can’t represent, keeping things confidential, all those can give rise to claims. But I would still stand by my original response, which is that administrative-type mistakes, deadlines, filing, title searches, things of that nature are more likely or most likely to give rise to claims.
Scott: And this may sound like a really obvious question. Do you think it’s just…it’s human to procrastinate? It’s just that lawyers tend to do that or do you think there’s some administrative problem in the way offices are organized?
David: I would say 90% of it is procrastination. You know, most lawyers are very busy, and the things that have tight deadlines are put in the front burner and things that have deadlines that are far out tend to be put on the back burner unless the client is pushing you to move on it, and as a result, when you might have eight months to get something done, and suddenly, you have four, and then suddenly, you have one, and one month puts you in a pretty significant rush situation. That can certainly be an issue, just general procrastination. I don’t know if lawyers procrastinate more than your typical [inaudible 00:20:12] but lawyers definitely procrastinate, no doubt.
Scott: Is some of that from, you know, in the personal injury case, in the personal injury arena that clients…I mean, that lawyers are letting the client get treated by physicians and they’re letting the medical bills run, and that’s what’s causing people to get to the two-year mark or whatever the year mark is. Is that kind of what’s going on, or do you think it’s just pure procrastination?
David: No. There’s very good reasons not to file suit immediately when the claim comes in. You certainly want to see, you know, what the resolution is of a client’s injuries, you don’t wanna settle too soon because, if it turns out their injuries are permanent, then you’re depriving them of the opportunity to be fully compensated. But there comes a time where waiting and waiting and waiting and waiting is not providing any benefit to your client and is causing, you know, your client to suffer harm, not only the risk that the claim isn’t handled properly, but the delay in receiving the funds that they’re entitled to and need to live.
Scott: And speak a little bit about the ante litem notices because, you know, that…having done a little bit, that part strikes fear in my heart, and very often you can look at these ante litem statutes and the cases that go with them and walk away from those statutes and still not feel a level of certainty that you’re completely grasping it.
David: Look, the law with regard to ante litem notices can be challenging and they’re changing…they change from time to time. An ante litem notices is a formal notice that you must provide to governmental entities to put them on notice of the claim, give them an opportunity to resolve it. And whereas let’s say a cop [inaudible 00:22:09] somebody on the street, the personal injury claim will have a two-year statute of limitations, but the ante litem notice, the deadline to put the cop or the administrative agency on notice will be shorter, either six months or a year depending on whether it’s a city, a municipality, or the state. And then what you must put into the ante litem notice is important because many cases are being dismissed right now…many personal injury suits are being dismissed right now because lawyers failed to put the information in the ante litem notice that’s required, including what the injuries are, what the claims…what the value of the claim is or how much you seek to recover. And you may not know but you still have to put a number in there. So, I’m seeing lots of cases dismissed and unsuccessfully appealed for botching ante litem notices is definitely an issue. But as administrative, it’s not just purely an understanding of the law, it’s knowing the date by which it has to be filed and knowing what needs to go in it. It can be a form letter. Somebody who’s been with the firm for a month can handle it as long as they know what needs to be in it.
Scott: You know, in terms of the ante litem notice, sometimes it…you know, you can have your forms and maybe the statute changes more frequently in your office and your form does, and it can be important to periodically go back before you file ante litem notice or send ante litem notice to double check to make sure that the law hasn’t changed on you.
David: Well, technically, the statute may not change, but the interpretation of the statute may change. If the Supreme Court issues an opinion dealing with a deadline or to whom the ante litem notice must be sent or who must receive it or what must be in the ante litem notice itself, you need to be aware of it, right, because, if you’re not aware of it, you use the same form that you’ve been using all along [inaudible 00:24:00] in peril of making a catastrophic mistake.
Scott: So say a little bit. I know that you teach at Georgia, and what subjects do you teach as an adjunct in Georgia?
David: I teach in the spring semester only. My wife says I can’t teach in this fall semester because football takes priority. I teach legal malpractice law, that’s what it’s called. And basically, we cover the fundamentals of legal matter law, risk management, ethics, how to avoid getting in trouble. If you want to become a plaintiff’s legal malpractice lawyer or defense lawyer, you’ll be well prepared after taking my class, and you certainly get an overview of the critical ethical rules that affect your risk and your client’s well-being.
Scott: What are some things that you tell students? I mean, so it sounds like there’s a big focus on how to practice legal malpractice law, but is there a component within the class of things to do to organize your practice to avoid being a legal malpractice defendant?
David: Well, one thing I tell my students and I’ll tell any lawyer who will listen is pick your cases carefully, do the due diligence necessary to determine if [inaudible 00:25:20] that you wanna handle, if it’s a case that you can win. If this is really an individual or a company that you wanna work with for months or years, are you gonna get angry every time the phone rings and you see their name and their caller ID?
You know, most lawyers can decide what cases to take. There are some lawyers that have cases appointed to them. Public defenders, DAs, insurance defense lawyers ensure they don’t have the luxury of picking and choosing their clients or in [inaudible 00:25:50] their cases. But one thing I learned early on that I think is really important is don’t take a case if you think there’s an issue. You don’t wanna be trapped in a case a year or two later, wishing you just decided not to take it. And no matter how much you need the attorney’s fees, don’t take it. Spend the time cleaning up your office, spend the time writing a paper that can be published and help you professionally join an organization. And one of the really important things is being very careful about what cases you take.
Scott: And you say be careful about what cases you take. But it sounds like really you’re saying two things, be careful what cases you take and be careful which clients that you take.
David: Well, first of all, right, you don’t wanna take a case that doesn’t have merit. You don’t wanna terribly close call on a contingency fee unless you really understand the risk and you’re willing to take it. And then as it pertains to the client, you wanna make sure, “Can the client pay my bill? Does the client have a felony conviction in his or her background that could be used against him in a case?” I mean, there’s a multitude of issues that any lawyer would probably recognize if they did some soul searching about what are the risks [inaudible 00:27:07]. Do they want revenge? Do they want a result that you realistically know you cannot get for them? Do they come in with expectations that you should know that you cannot meet?
Scott: Why do you think that lawyers…or do you think is that the issue is that lawyers don’t see the red flags, or do you think it’s that lawyers ignore the red flags?
David: I think sometimes they don’t see them, but I think the other is also true is that the lawyer sees a fee, right? “This client’s gonna hire me. This lawyer is gonna pay me. I really need to bring in some money so I’ll take the matter on.” I think both of them play a role, and they’re both legit… You know, you’re in business to make money, I totally get that. I don’t want you to say…I don’t want to imply that you shouldn’t get paid. I’m very careful. Is this particular engagement worth it given what could happen down the road?
Scott: For the lawyer that, you know, maybe just starting out in practice or when you’re talking to students who, you know, are very idealistic… I teach at Georgia Appellate Practice with a mutual friend, Judge Dillard, and, you know, the law students that we see at Mercer seem to be very idealistic. And I don’t think that’s gone away for law students. When you’re talking to law students who have not dealt with actual clients, and you’re trying to get this concept across and you’re trying to explain what the red flags are or how to spot them and then what to do maybe if you don’t see them until you’ve already taken the engagement, what are some of the red flags? What are some of the things? And you’ve mentioned revenge a minute ago or maybe bad motives. What are the things that we should be on the lookout for as lawyers?
David: Well, really those are them. I mean, make sure that the client can pay you. You know, the problem is, especially in litigation is once you’re in and once you file suit, it can be very difficult to get out of the case. If the client is willing to let you withdraw or wants to hire a new lawyer, that’s one thing, but if the client is knee-deep in attorney’s fees, and they paid you some, they owe you a lot more, you wanna get out of the case because of whatever reason they can’t afford to pay you, their claim is no longer legitimate, whatever it may be. If the client won’t let you out, you have to file a motion to withdraw. And some judges are very reticent to grant those. Some are fine with it because they see that the case has been going on for two years, it’s getting ready for trial, their docket is exceptionally crowded, and they don’t want cases to be on the docket for another year or two, which can happen if new council gets involved. So, you wanna avoid the situation of needing to withdraw or desperately wanting to withdraw but not being able to.
So, how do you avoid that? You avoid it by making good decisions upfront. A lot of times the lawyer can choose the client. Now, if you’re very well established and you’re successful and you’re getting tons of referrals, you have more of that luxury, you have more ability to pick and choose which clients and which cases you get involved in. If you’re newer and younger, you may not, but you still do some analysis. Even if you know there’s other lawyers that might get the case if you don’t take it immediately, do the analysis, “Is it a case I wanna be involved in?” Another option is to sign the client up but have a very clear paragraph within your engagement agreement that you have the right to withdraw if you don’t think the case has merit or if there’s a legitimate basis to withdraw. You just need to do that way in advance. You can’t sign the client up under that provision in months after a crash and then decide to withdraw in month 20 because you’ve done your client a terrible disservice, not only in the delay, but another lawyer may not wanna get involved that late in the game. So, just do it in a proper fashion without delay.
I always say, when you’re [inaudible 00:31:28] and how they feel about matters, and they’re annoying you, they’re not the type of person you really wanna deal with, I always imagine somebody who goes to a doctor’s office or a dermatologist’s office or surgeon’s office and has something removed from their skin, a growth, and the doctor says call me tomorrow, and I’ll let you know what the lab report is. And the next day, the client calls the lawyer’s office…I mean, the doctor’s office, and the doctor doesn’t get on the phone, they say the doctor will call back, right? And how long should you wait? How long should that doctor wait to return the call of the patient?
And everybody agrees, if you’re in a big room talking to students or CLE, everybody agrees that that return phone call should be prompt. And what I tell folks is just remember your client thinks that their legal matter is just as important, every bit is important as that patient thinks their medical issue is. So, don’t blow off the client. Treat them with respect. Treat the claim with respect. And that circles back. Don’t take the claim, don’t take the client if you can’t treat them that way. If you don’t trust them, if you don’t like them, if they’re not gonna pay you, if they’re a convicted felon… Now, again, if you do criminal defense work, that’s your pool of clients, and that may be your best pool of clients. But for those of us who do other civil litigation, we need to consider the fact that a conviction for a felony moral turpitude can have a very negative effect on the litigation. So, consider that before you decide to take the case. Then you won’t be upset that you took the case and you won’t be stuck in it.
Scott: So what does proper vetting look like? I mean, it sounds like… I mean, so there’s the level of the clients in front of you and you’re talking to the client and, you know, there’s just something you don’t like or they seem unrealistic, but in terms of proper vetting of a case, what does that process look like? When you have a client that reaches out to you about a potential matter, what does your due diligence process look like?
David: You know, we’ve been talking about the due diligence with regard to the client him or herself which is important but really, typically more important is the evaluation of the claim. So, I never accept a case or a client based on a phone call or an email. I will always do a lot of due diligence to determine whether or not there’s a valid winnable claim under Georgia law. In the legal malpractice arena, I’ve gotta prove a lot. I have to prove that the lawyer made a mistake. I need to prove…and not just a mistake but a mistake that no other reasonable lawyer would have made. I have to prove that the mistake caused damages that otherwise would not have occurred, what the measure of those damages are. I should say I have to be able to prove that.
And I’m not going to take a plaintiff’s legal malpractice claim on a contingency fee without having a pretty good comfort level that I can prove that. Plus, I’m not going to sue a lawyer if I don’t think that it’s a valid claim. I try to handle my practice honorably. I’m not about getting publicity. I’m not about talking to the press. I’m about trying to resolve a claim as fairly and honorably as possible. And part of that is not calling a lawyer up and saying, “Hey, I’ve been retained to bring a claim against you without first confirming that there’s a darn good claim there.”
Now, there are times where the client will give me some information and it is not complete information and I call the lawyer, and I always give a lawyer an opportunity to give me their side of the story. On several occasions, I have received information from a lawyer that has made me change my mind and not handle a case that I otherwise would have handled.
Scott: So, on the front end, it’s… So, for instance, like if someone blew a statute of limitations, you have to not only prove that, you know, the statute of limitations that there was a mistake. That seems like a fairly inexcusable act by the lawyer. So, that seems like, you know, you have the mistake, you have the breach of the duty, but then, do you also have to prove that had the complaint been filed in a timely manner that the litigation would have been successful?
David: Yes, absolutely. And that is almost always the hardest part of the case. I mean, a little unknown truth about my area of practice, generally speaking, the breach is the easy part of the case, the breach of the standard of care, the missed deadline, the bad title search, things of that nature, not always, but usually. The hard part of the case is proving that the result would have been, not might have been or could have been, but would have been different but for the mistake.
So, I always used to like to use personal injury or car crash cases as examples because everybody gets them, even, you know, a sixth-grader who’s…has no idea how the law works, they understand the concept of a car crash. So, if a lawyer agrees to represent a plaintiff and the plaintiff was in a car crash and plaintiff was T-boned at an intersection and the plaintiff claims or the client, whatever you wanna call her, claims that they had the green light. And then the lawyer misses the statute of limitations, and then the client calls me and says, “Hey, my case is permanently lost. I wanna sue my lawyer for malpractice.” I will investigate that car crash just like the personal injury lawyer should have because, in fact, that plaintiff, that client had the red light and the car crash was her fault, then it doesn’t matter that the deadline to file was missed. It didn’t cause any damage because the claim would have been lost, there would have been no recovery. So, proving causation is always the challenging part of the case and where most of my work comes into play.
Scott: In the legal malpractice arena, do you end up, you know, with those that go to trial or, you know, those that get litigated, you know, pretty well into discovery, or do you end up having a mini-trial within the trial on the case itself…on the initial matter that the lawyer, you know, messed up on potentially?
David: Exactly. It’s called a trial within a trial, and you literally bring the eyewitnesses, the underlying defendant, the doctor or doctors who treated the defendant, and everybody else that would have been called at the underlying trial had it gone forward to persuade the jury that there would have been a recovery but for the missed deadline. So, yeah, you just have to explain it to the jury so they know what’s coming.
Scott: And then with your students, if you’re kind of telling them sort of the basics of legal malpractice, what are some of the important lessons that you teach over the course, you know, of the semester of that class?
David: Well, we start with a thorough analysis of a legal malpractice claim, which is simply duty, breach, causation, damages, and then we move on to fiduciary duties and other issues. We do spend a class… I teach once a week for a couple of hours. We spend a class dealing with claims that could be brought by non-clients.
So, just to take you through it, first, we talk about duty. What is the duty? To whom do you owe a duty? Once you determine that there is a duty, which generally but not always arises from the attorney-client relationship, then you have to define the duty. The duty is to provide legal services within the standard of care. What’s the standard of care? That level of skill normally exercised and possessed by lawyers representing clients under the same or similar circumstances, skill care and diligence, actually. Once you can establish causation but for that breach where the damages have occurred, if you can get past that threshold, then you have to determine what the measure of damages are. So literally, in a car crash case, what would a jury have awarded in the underlying case? Then once we’ve established those…once we figured out, you know, make sure everybody’s clear that we’ve got a breach of fiduciary duty, which I think every lawyer gets. I mean, it’s loyalty, confidentiality, candor, your interest beneath those of your client, not equal to, but beneath.
We talk about how to stay out of trouble by avoiding letting somebody think you’re their lawyer when you’re not. You know, somebody may ask you a question at a cocktail party and then think, “Oh, they’re gonna take my case.” We talk about engagement letters and just as importantly, non-engagement letters or disengagement letters. A non-engagement letter is when somebody consults with you briefly but not to represent them. You wanna put in writing, “I am not your lawyer. I will not be representing you.” Similarly, if you have been representing them and you can withdraw without going through the court process, you disengage, you send a disengagement letter. It’s the same concept. Send a letter, “I’m no longer your lawyer.” If there’s any impending deadlines, you let them know what those deadlines are. You don’t wanna have a situation where a client consults with you about a claim, but they think you are handling it. They don’t hire anybody else. Then the deadline to file suit expires, and they sue you. And you say, “Hell, no, I was not your lawyer. You couldn’t possibly have thought that I was your lawyer.” And the client says, “Well, you never told me that you weren’t representing me, and I never consulted with anybody else because I was relying on you.”
Scott: Well, let’s talk a little bit more about that because a lot of people…you know, I mean, particularly non-lawyers but maybe some lawyers even. What are the sorts of casual or what we may see as casual things that can result in an attorney-client relationship that’s maybe not necessarily intuitive that an attorney-client relationship would have arisen?
David: You know, there’s really not… I mean, I think that’s an overblown issue. I mean, it is something that you need to be careful about, giving advice at a cocktail party, and then it was bad advice. It’s not common but you can inadvertently create an attorney-client relationship, but it’s usually in the context that I just described where you don’t want to represent the client, but you have not adequately told the client that. And on the other hand, the client has a reasonable basis to believe that you are protecting their interests. That’s how it comes into play.
You know, the basic rule is that you are all of the duties that every lawyer they owe to a client, and you owe fewer duties to a prospective client, but you still owe certain duties. If anybody consults with you or asks you questions, you have a choice, don’t answer, and just say, “I don’t provide off-the-cuff answers” or have them come into your office for a formal meeting. But if you provide legal services, the general rule is with a prospective client, if you do provide legal services, give a deadline [inaudible 00:42:38]. If someone says, “Hey, do I have a case?” And you say no when it turns out they did and they rely on that, then you have that inadvertent attorney-client relationship that we’re chatting about, and that can put you at risk of being sued.
We talk about a problem in our law school class where somebody goes and consults with a lawyer about a potential claim and it’s totally outside the lawyer’s practice area and the lawyer says, “You don’t have a claim. The defendant has immunity and you can’t win that claim.” And the clients go home and forget about it. And then a year later, they read that how other people similarly situated recovered a lot of money for the same exact claim that they consulted that lawyer about. And, you know, the question that the students have to evaluate is, is there a claim against the lawyer? And the answer is yeah because the lawyer provided certain legal services even though he didn’t see himself as being in an attorney-client relationship. But to the extent, you provide legal services, even to a prospective client, then be held liable if you make a mistake.
Scott: That can be really tough because, you know, we don’t… I think all lawyers have the experience of they’re at the family reunion or they’re at the picnic or, you know, somebody from little…like another parent in little league has something come up and, you know, people don’t understand that lawyers have specialties. And a lot of times, I think where we tend to get in trouble is we don’t wanna come off like we’re a jerk. We don’t wanna act like we’re not willing to help. And so sometimes it’s just not wanting to appear rude that maybe puts us in these situations where we’re maybe potentially at risk.
David: Well, I would say it’s twofold, not wanting to appear rude, and not wanting to appear unknowledgeable, right? I mean, no matter…
David: Yeah. Whether you’re a lawyer or a doctor or an accountant or whatever, you wanna act like you know things, you know what you’re talking about. So there is an inclination to answer questions. Maybe it’s because I’ve been doing it for a while. Maybe it’s because I have a super narrow niche practice, but I have absolutely no problem whatsoever with telling somebody, “That is outside my practice area. I sue lawyers for malpractice, and the last thing I wanna do is give you bad advice.” And you know that I offer to put them in touch with someone who can help them, but I will not be tempted to give advice on something that I have absolutely [inaudible 00:45:01] or even enough knowledge to get me in trouble. I’m just going to avoid it. And I would definitely recommend every lawyer avoid that, whether they’re doing it to appear smart or they’re doing it because they wanna be helpful and not rude, whatever the reason is, avoid that because, like I said, if you give the wrong answer, you can be on the hook.
Scott: And if I heard you… just kind of changing gears a little bit. And it sounds like you said you do a little bit of ethics, so, people that have a bar complaint. You represent lawyers in defending bar complaints. Did I hear you? Did I say that right?
David: I do that extremely rarely. I will do it for friends who ask me to do it. It’s not something I hope myself out as doing. It’s not something that I’m an expert in by any means. There are other lawyers who have a focus on that. Generally speaking, I’m not defending lawyers. I’m bringing claims against lawyers.
Scott: In the times that you have done it, are there trends there? I mean, so you’ve said that a lot of the issues with malpractice is administrative. Like you didn’t calendar something correctly, or you didn’t send a form out in time, or you missed something in a title search. In the bar discipline cases that you’ve…and I know that they’re rare. Do you see trends in…? I guess there’s gradations of this. So, if you do any criminal defense, you know, if you do any significant criminal defense, you’re going to get bar complaints just because of the customer base you’re dealing with and because a lot of times, it’s easier to blame the lawyer than it is to blame other factors for the way things are going. But you know, the bar complaints that have teeth where they kind of go deep into the process, do you see trends in the way lawyers are living or the way they’re managing their practice?
David: Well, there’s two different answers to that. Most bar complaints come out of a failure to communicate, just blowing off clients, not having what I would consider to be a good bedside manner. Whatever the equivalent is for lawyers of a good bedside manner, the easiest way to get a bar complaint filed against you is to be that guy or that lady. It goes back to the how would you wanna be treated if you had a medical issue or how would you want your family member to be treated if they were waiting to hear back from the pathology lab. It’s important to them. And similarly, you need to treat the matter as important with your client. And if you don’t return phone calls, if you blow them off, if you’re really nice to them when they’re signing up with you as opposed to signing up with someone else, right, you being the salesperson, and then you put it on the back burner and you don’t return the phone calls, you’re not diligent, you may get a great result for them, but they may think that you just weren’t emotionally intellectually invested in their case, they weren’t important to you. And so they’re more likely to file a bar complaint.
Conflicts of interest give rise to bar complaints, even if they’re not genuinely conflicts but somebody has a perception that the lawyer’s allegiance is misaligned, that could give rise to bar complaints. Lawyers make decisions on behalf of clients that they don’t have authority to make is a big basis for bar complaints. Settling claims without permission is a big beef rightfully. So, you’ve got a duty as a lawyer to communicate with your client and get informed consent for any decisions that they make, so that means communicating, explaining the risks, explaining the rewards, and then letting the client decide. Not just calling the client up and saying, “Hey, we can follow your path B. I think A is better. Are you okay with that?” That’s not getting informed consent. It may be consent, it may be authorization, but it’s not gonna get you off the hook if the decision was a bad one and they truly didn’t give you informed consent.
Stealing from a client. I think that’s pretty self-evident, but there are issues with trust funds. People bounce checks from the trust funds more than you’d like sometimes because they accidentally wrote a check, and I do mean that genuinely. Some people are totally misusing their trust account but other people just write a check on one account when they meant to write it on another and they may have a deficient balance. Things can happen by mistake, and the bar will listen to you. But you are going to be in trouble obviously if you misappropriate clients’ funds.
Scott: You know, kind of going back to your…at the beginning of that answer, that the level of communication and client management and bedside manner as you put it may be as important as your skills as a practitioner.
David: Well, there’s no doubt. With regard to avoiding legal malpractice claims or avoiding bar complaints, that’s critically important. I say jokingly that the six most important words in keeping clients happy, avoiding [inaudible 00:50:14] complaints and avoiding lawsuits are these, document, document, document, communicate, communicate, communicate. Communicate with your client, not only because rule 1.4 requires it, but because they’re entitled to it.
Document the file means keep them informed, and when they make important decisions in the case, to document that in an email. And that seems self-evident, but I’ll tell you something interesting about legal malpractice cases. The statute of limitations for legal malpractice cases four years from the date of the error. So let’s just say you make a decision in a case to, I don’t know, path A instead of path B, it doesn’t matter what the decision is, and you talk to your client about it but not the way that I just said you should. So instead you just say, “I’ve been thinking about it, and we can follow pathway A or pathway B. Let’s follow path A.” And the client says okay. Let’s say that happened January 1st of 2020. And then let’s just say that decision turns out to be terribly wrong. Well, the client can sue you within four years, so January of 2024.
In January of 2025 or ’26, your deposition is being taken, and you’re saying, “I had already [inaudible 00:51:29] to do this.” And the client [inaudible 00:51:32] 2027 or 2028, eight years later, and your client says, “Here’s how the conversation happened.” And you say, “No, that’s not how it happened. Here’s how it happened. We have your classic case as she said.” Who’s gonna win at trial? If it’s a classic case as she said, the client’s gonna win that. But if you’ve documented the file, if you’ve communicated well and documented the file, you’d not be sued in the first place.
Scott: So there’s document, document, document, communicate, communicate, communicate. It sounds like if there’s a question of fact, in other words, the lawyer says A, the client says B, and you end up at trial, it sounds like what you’re saying is that juries tend to go with the client.
David: Yeah. I mean, I think that’s unquestionable. You might hear some defense lawyers deny that when you, meaning I am arguing with them that they’re gonna lose that credibility question. But think about it. I saw a poll recently where it was ranking different jobs, not professions, but jobs, and lawyers were second to the bottom. The only job that was below lawyers was used car salesmen. New car salesmen were above. So, we’re not held in high regard, unfortunately.
I’ll tell you this, if you had the same exact scenario in a medical malpractice case where the doctor’s accused of misprescribing a medicine and the patient says, “You told me to take the medicine like this,” and the doctor says, “No, I told you to take the medicine like that,” the doctor is going to get the benefit of the doubt and that he said she said. Medical malpractice lawyers will tell you that that’s true. So, doctor get the benefit of the doubt, lawyers don’t. So how do you protect yourself from that inequity? You document the file. You be prepared to show the proof that the communication did, in fact, take place, and you’re doing that, number one, because the client deserves it. The client deserves good communication. But you’re doing it also because it’s the best way to protect yourself, document the file.
Scott: Maybe it’s the spirit in which you do it, but it sounds like that if you really… I mean, if someone were to take this advice and misconstrue it, it seems like you would start doing things that would maybe be…would erode the trust, the client would begin to look at the lawyer, “Well, you’re just protecting yourself.” Does the documentation if done incorrectly or done in the wrong spirit erode the attorney-client relationship? So, in other words, what’s the best way to do this in a way that seems like we’re doing it in good faith and with goodwill?
David: Well, I don’t care if a client has some inkling that I’m sending a communication to them that’s a CYA as long as I really…am doing it in good faith. So, for instance, I had a case recently where there was a lawyer at a firm that had committed a pretty bad error, and an associate at the firm had [inaudible 00:54:35] And I was going to sue the lawyer and the firm and the associate. And the lawyer for the firms asked me just as a matter of professionalism, whatever, not to name the associate. They said, “This is gonna really harm her career, harm her reputation. She was just taking instruction. Can you not name her as a defendant?” And it didn’t really change the case, but of course, I would never unilaterally make that decision.So I called the client, we talked about it. I advised the client that I did think that it was fine. And then I sent a confirmation email just kind of discussing the substance of the conversation and confirming it.
Now, did the client maybe think that Lefkowitz was covering his ass by sending that email? Maybe but I didn’t send it with that as the number one goal. I certainly was cognizant in, you know, my area of malpractice and risk management. I was certainly cognitive that could be a very important email a few years down the line if things don’t turn out well or if the client gets angry at me down the line. But it was more a matter of confirming that conversation, ensuring that the client understood the risks and the benefits of making that decision, and then confirming the decision. So, I see what you’re saying is you can come across as really sending a communication for your benefit instead of the client’s, but I think that’s okay as long as you are fulfilling your legal and fiduciary obligations.
Scott: Now, I wanna go back to the medical analogy. We all know what it’s like to be…well, most of us, if it’s not us, it’s a loved one to be waiting for a pathology result to come back and…or, you know, we get that pathology result and…because now you have like my chart, and you a lot of times, you get those results back before your medical provider does. We all want doctors to have a good bedside manner. I’m assuming doctor’s offices must have these patients that are neurotic, high maintenance, you know, they’re just gonna call constantly, and if the doctor dealt with them, they really wouldn’t have the time that they needed to devote to patients. I think I see this a lot in the criminal defense arena where you have…you know, maybe not necessarily the client. This may be good to those are the question of who is your client. Sometimes it’s the brother or the spouse or, you know, the son or the boyfriend or the girlfriend. When you have clients that want too much communication or, you know, you can…sometimes lawyers, we find ourselves spending more time talking about files than dealing with the files. And maybe your answer to this is you should have screened them better to begin with. But how do you deal with, you know, the need for communication where the client is maybe over-communicating or has unrealistic expectations?
David: Well, I’ll say first, that if you’re handling the matter by the hour, it’s less painful. If you’re handling it on a contingency fee or a flat fee, then you’re wondering where the efficiency is being affected, your law practice efficiency. If you knew that the client was gonna be like that coming in and you didn’t budget for it, then I would say you have yourself to blame and you have to hope that you have one or two clients in the future that take up less of your time than you expected. If the client surprises you, you can have a firm…there’s nothing wrong with having a conversation with the client just saying, “Look, I get that you want information. I’m good about sending you or providing you information when we get it. We do speak whenever something’s going on. If you need an update more frequently than I’m giving it to you, please let me know, but it’s not fair to my other clients for me to give you 20% of my time when you’re 1 out of 50 clients.” I think you can honestly have that conversation as long as you do it in a polite manner.
Scott: So beyond document and communicate, what other things do you see lawyers getting in trouble for both in the ethics realm or in the malpractice realm? And then I think we’ve spoken up, of course, on the administrative side. But in terms of what you tell your students, what are some other things that you try to impart to them?
David: Set forth the scope of the representation very carefully. Make sure that the client understands what you are doing and what you’re not doing. The classic example, again, is in the car crash case where a lawyer has a contingency fee contract that’s usually a form contract that says, “I’ll represent you for all claims arising out of the crash that took place on January 7, 2022.” Well, what does that mean?
To you the lawyer, it may mean that you’re handling the personal injury claim and that’s it, but what if the client also has a workers’ compensation claim? What if the client also is disabled and has a Social Security claim? What if there’s just a property damage claim? What are these criminal charges filed in association with the car crash? If you’re not handling those matters, you better document that in the attorney-client agreement. Otherwise, the expectation is going to be that you are handling it, particularly if you use some vague language like, “I’m representing you in all claims arising out of the crash,” which is common language, unfortunately, because it’s setting the lawyer up for risk.
So I would say, number one is define the duty, define the scope that’s distinctly within your power is to make sure the client understands what the engagement is and what the scope of the engagement is, right? You can’t get sued for something that you contractually have not agreed to do, but if you’ve left it vague and the client’s reasonable and thinking you’re going to do it, then you’re gonna be on the hook for not doing it. I would say that’s really important.
Scott: Defining the scope of the agreement in a written fee agreement. You spoke about it just when we were talking about your practice. Something that you said early in this discussion was that your caseload is a little lower than it was when you were doing insurance defense. And I’m gonna assume that that’s by design. Say a little bit more about caseload and how your caseload can enter into all of this.
David: Well, there are times when I’m working on a case, and I will not take a new case on. And there’s times where I have a big case that I think may resolve that will open up some significant time. Then I’ll tell a prospective client that, you know, “I told you I had a mediation last week in a claim that did resolve and I had told somebody else the week before. I’ll represent you if this claim settles, but if it doesn’t, I’m gonna be extraordinarily busy over the next few months, and to be fair, I’m not going to have the time to help you out on your case. It’s a very document-intensive complex case that I knew that I would not be able to invest my time in because I wouldn’t have it.” That’s really important for practice management.
And like I said, you can turn cases down. Right now I’m spending most of the day every Tuesday teaching, so I have less time. I’m not gonna overwhelm myself. If you are a younger practitioner, or even if you’re an experienced practitioner, set aside some time to write, to research, spend time with your kids, whatever, make sure that you’re living a full life. And, of course, they’re gonna be times where you’re slammed where there’s deadlines, you’re being overwhelmed by three defendants in one case, they’re all filing motions at the same time, and it almost seems like they’re working together to overwhelm you, that’s gonna happen. And you’re going to have nights and weekends where you have to work.
In fact, my wife already knows that I’m gonna be working late tonight because I’ve got something I’ve gotta get taken care of. So, yeah, handle what you have to handle. Don’t get in trouble. But don’t fill your plate up with more than you could eat. Don’t take on matters that you know or reasonably should know you cannot handle. Practice management and you do learn more about that as you go on as you have more experience. You start to realize what you can do, what you can’t do. When you have a vacation plan, which means not just five days away, but probably nine if you include the weekends on both ends of a week, are you gonna come back to a total mess and not be able to handle other matters? It becomes easier and easier to budget your time as you have more experience.
Scott: Well, David, I really appreciate you coming onto the podcast and talking to me. Is there any other, you know, big thing you’d like to tell the listeners?
David: No, not really. Just be careful and always put your client’s interest first, and the odds of you getting in trouble are very slim.
Scott: And where can people find you that are interested in your practice or, you know, if they were to have something in the legal malpractice arena? I know you have a pretty active Twitter account, although I think it sounds like you’re talking about cryptocurrency a lot, and I don’t really understand a lot of your tweets. Where can people find you?
David: So my main office is in Athens, Georgia, on South Milledge Avenue. I have a website, lefkowitzfirm.com. If you literally google David Lefkowitz, you’ll find me. I do have the site, legalmow.com [SP]. So if you don’t wanna type in my name, just go to legalmow.com. I do have a Twitter feed, DavidNLefkowitz. I never talk about crypto. That’s not my thing. I do occasionally talk about SPAC, which is an investment vehicle that some people have heard of and are getting involved in. I should talk more about legal ethics and less about SPACs and stocks on there, but stocks are kind of my thing when I’m not practicing law.
Scott: If I see symbols in your Twitter account with a dollar sign in the middle, I just know that I’m not gonna understand what you’re tweeting.
David: So any stocks on Twitter, any stock symbol gets a dollar sign in front of it, and that’s how people search out posts regarding Apple or Amazon or whatever the case may be.
Scott: Gotcha. Well, see, that’s an important lesson I learned right there.
Scott: Okay. Well, thanks so much, and take it easy. I really appreciate it.
David: Thank you very much for inviting me to be on here. I really enjoyed it.
Scott: Thanks for listening to “The Advocate’s Key.” For more information and content like this, including a transcript of this episode, be sure to visit scottkeylaw.com. And please rate, review, and follow this show wherever you get your audio content.