Many Attorneys Practice Defensive Lawyering

// I was speaking with a physician friend of mine recently about some of the annoying issues my buddy needs to deal with in the medical field. My friend told me that one of the most annoying things physicians need to contend with is defensive medicine. This is the practice of some doctors to try to insulate themselves from malpractice or other grievances by ordering tests that might be excessive, but which will show that the doctor did everything they could to investigate a matter if scrutinized in the future. Although lawyers need to deal with different issues, many attorneys may also feel the need to take certain steps that are primarily motivated to avoid lawsuits, and I have witnessed numerous instances of “defensive lawyering” in my own career.

A lawyer’s primary job is to minimize the risk that their clients will be liable for their conduct. Indeed, clients routinely ask lawyers to evaluate their risk for civil and criminal liability and to fashion ways that they can avoid liability. It therefore naturally flows that lawyers might also try to take steps to avoid risks and liability in how they run their practices, but this can have an adverse impact on clients.

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I first witnessed defensive lawyering when I was a young associate working at a midsized law firm. One of the firm’s clients was a group of interconnected companies, and the company names were pretty generic. One of the client’s group of companies got sued, apparently as a mistake. The client’s company name was similar to one of the allegedly responsible parties, so the plaintiff decided to sue the client’s company along with other companies. The client said that it never developed this company, that it had no assets, no bank accounts, nothing. This company had been formed years ago for a purpose that never materialized, and the client just never wound down the entity.

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The partner related that it was very unlikely that anything bad would happen to the client if we did not respond to the litigation since the company did not have assets and likely could not be connected to other concerns of the client. However, the partner related that he could not suggest this hands-off strategy. In the off chance that a default judgment was obtained and could stick against another one of the client’s companies that had assets, the lawyer would be in serious trouble for not responding to the litigation.

Accordingly, the client had to spend money to safeguard against the small risk that there would be issues down the line. To be honest, I think the partner made the right call since litigation should generally be responded to and the client did not mind paying the legal fees associated with this strategy. However, this got me thinking about how covering the lawyer’s liability can be part of the decision-making process of many attorneys.

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At another time in my career, a lawyer failed to file a document, which seriously jeopardized some of the causes of action we were pursuing in a given case. Partners at the law firm were nervous about the case, and it was eventually decided that we would amend our papers to pursue other causes of action that were not dependent on this given filing. The other causes of action also provided alternative avenues of recovery for the client, and since facts revealed in discovery supported the causes of action, the pleading was eventually amended. After this point, the case became much less about the causes of action that would be difficult to pursue because of the lack of the filing by our office and became more about those new causes of action. The amended pleading was probably a net benefit to the client, and became one of the reasons why the case eventually resolved favorably, but this strategy was definitely borne out due to defensive lawyering over any other reason.

Lawyers are just like the people they represent: they want to do everything they can to limit liability, and this might include taking action that might have little upside for clients. Lawyers should be more aware of this justification for pursuing legal tactics and ensure that the interests of the lawyer and client are well balanced when pursuing a given strategy.

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Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at [email protected].

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