For The Defense, July 2010 - DRI Today

P R O F E S S I O N A L L I A B I L I T YLegal MalpracticeBy Susan E. WassellClaims Arisingfrom Multiple-Defendant LitigationJoint representation canhave notable advantages,but poor representationcan have devastatingramifications—professionally, financially,and emotionally.Black’s Law Dictionary (1983) defines legal malpracticeas the “failure of an attorney to use such skill, prudence,and diligence as lawyers of ordinary skill and capacitycommonly possess and exercise in performanceof tasks which they undertake, and whensuch failure proximately causes damages itgives rise to an action in tort.” Legal malpracticecan be the “elephant in the room,”a risk that we all know exists but that wetry to ignore. It goes without saying thatan attorney never actively seeks to commitmalpractice, but given that lawyersare sued for malpractice, it is time that the“elephant” was acknowledged, understood,and avoided.The elements of legal malpractice arefairly straightforward. The circumstancesunder which the malpractice is committedare another matter. They are so broadand varied that we could spend countlesshours evaluating and discussing the topic.This article will focus on one particularsource of malpractice claims: handling, orpossibly mishandling, multiple- defendantrepresentation. This article will providegeneral guidelines for avoiding malpracticewhen working with multipledefendants.Advantages and Disadvantages ofRepresenting Multiple DefendantsThe specific advantages of representingmultiple defendants in a lawsuit varywith the circumstances. Often, the advantagesinclude the ability to present a jointdefensestrategy and the cost- effectivenessachieved when multiple clients hire oneattorney or firm to represent all of them. Ajoint- defense strategy inherently necessitatesthat the defendants cooperate, jointlyanalyze the issues, and exchange integralinformation in a protected environment.It also can prevent a plaintiff from “dividingand conquering” defendants. Anotherpotential advantage is that it prevents defendantsfrom attacking each other, whichdistracts a jury from the weaknesses in aplaintiff’s claims.Interestingly, the advantages canbecome disadvantages. In particular, cooperatingand openly exchanging informationhave disadvantages. A joint defensecan raise conflicts of interest as a matter78 n For The Defense n July 2010■ Susan E. Wassell is an associate with Fain Anderson VanDerhoef, PLLC, in Seattle. Her practice focuses on the defense ofcomplex litigation, including claims of medical and other professional liability, products liability, general civil litigation matters andpersonal injury. Ms. Wassell has several years of legal experience and has nursing and hospital risk management experience aswell. The author would like to acknowledge Erin H. Hammond, also an associate with Fain Anderson VanDerhoef, PLLC, in Seattle,for her contributions to this article.