When the Disciplinary Bar Comes Calling
Law firms face a constant risk of legal malpractice claims. Malpractice-insurance data indicate that such claims are not uncommon: one frequently cited estimate suggests that approximately 1% to 2.6% of lawyers face a malpractice claim in any given year. The American Bar Association’s most recent study of legal malpractice claims, drawing on data from most major legal malpractice insurers, reported that more than 38,000 professional-liability claims were filed between 2020 and 2023.1
An even more common risk for lawyers, however, is a disciplinary grievance.2 The ABA also reported disciplinary data from 38 jurisdictions for 2023. More than 83,000 disciplinary grievances were filed during that year.3 In other words, the number of disciplinary grievances filed in a single year was more than double the number of reported legal malpractice claims filed over the four-year period from 2020 through 2023.
What Should a Lawyer Do Upon Receiving Notice of Disciplinary Grievance
The steps lawyers should take to reduce the risk of disciplinary grievances largely mirror those used to prevent legal malpractice claims. Sound risk-management practices—such as using engagement letters, communicating regularly with clients, avoiding conflicts of interest, and maintaining manageable caseloads—help minimize exposure to both malpractice claims and disciplinary grievances.
Even lawyers who follow sound risk-management practices may face a disciplinary grievance during their careers. When that occurs, they should have a clear response protocol in place. Many lawyers do not realize that most lawyer professional liability (“LPL”) policies provide coverage for disciplinary matters. Accordingly, one of the first steps should be to promptly notify the LPL carrier of the disciplinary grievance because failure to provide timely notice may jeopardize coverage, including the assigning of counsel to defend the policyholder.
Insureds may forfeit other important benefits of their LPL policy by failing to report disciplinary grievances promptly. For example, a typical Lawyers Professional Liability policy provides some coverage for defense costs in connection with a disciplinary proceeding.
The admitted Old Republic Lawyers Professional policy4 provides up to $50,0005 for attorney fees and other reasonable costs incurred in such a proceeding. This coverage does not require the policyholder to pay a deductible and does not reduce the policyholder’s limits of liability. In addition, if it is determined that
the insured has no liability, Old Republic Lawyers Professional will reimburse disciplinary fees exceeding the $50,000 cap.6
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1 American Bar Association Profile of Legal Claims: 2020-2023, p.10.[2] The ABA defines a disciplinary grievance as the initial complaint submitted to a lawyer disciplinary authority alleging possible misconduct by a lawyer. It is not the same thing as a formal disciplinary complaint; rather it is the com-plaint that starts the screening/investigatory process.
3 American Bar Association 2023 Survey on Lawyer Discipline Systems (S.O.L.D.), “Lawyer Population and Agency Caseload Volume,” pp. 1-4.
4 Policies underwritten by Pennsylvania Manufacturers’ Association Insurance Company, Manufacturers Alliance Insurance Company, and Pennsylvania Manufacturers Indemnity Company.
5 In no event shall the amount payable exceed $100,000 regardless of the number of Insureds or the number of such proceedings.
6 Id.