William Gwire has been a trial attorney since he started practicing law in 1974, and has focused exclusively on the legal malpractice area since 1989. His clients range from individuals with small cases to multi-national, Fortune 500 corporations as well as governmental entities. Mr. Gwire has lectured before bar associations, client groups, and professional and industry associations in the United States, Europe, and Asia on the subjects of legal malpractice, attorney ethics, and legal fee matters. He has written on the subject, with his articles appearing in national business and legal journals and periodicals.
Nicholas Gaffney (NG): You’ve been a malpractice attorney for almost three decades, and you’ve won large verdicts against top lawyers, including several well-known litigation firms; how did you get into the business of suing lawyers?
William Gwire (WG): Like most things in life, how I got into the legal malpractice area was more serendipitous than planned. To understand how it came about requires a bit of long story, but trust me, there’s a lesson for all lawyers in the story.
I started law school in 1971. It was an incredible time in the U.S. Everybody, including me, wanted to go into the law for all the right reasons; we wanted to do good in society. At that time, law was one of the most highly esteemed professions. Fast forward to 1989; I was a partner in a well-established international law firm doing purely business litigation. From the outside, I looked like the model of success. But I was miserable. I was representing corporate clients in disputes that I had little interest in, and often on the wrong side of the moral compass. And, in the 15 years since becoming a lawyer, law had sunk to the bottom in terms of respected professions. I was ready to quit, but someone close to me suggested that I open my own practice for a while, just until I could decide what to do. So I did. Within a very short time, I felt like a weight had been lifted from me. I could take on the cases I wanted, charge what I wanted and work as I wanted.
A couple of months into my new solo practice, I took on a case for an old client who was in a partnership dispute and having serious problems with his own lawyers. He asked me to help, so I took a look at the case and discovered rampant billing abuses and malpractice. I got involved and within three months, we got the case into mediation and settled. He was grateful and began referring me people also having problems with their lawyers. I took on their cases, and within a year, I realized there was a practice niche that could be developed. So, I went for it and nearly 30 years later, I’m still loving what I do. Practicing in this field is deeply satisfying to me, both in terms of providing help to clients, and because I feel like I am doing something to help the profession, although some of my fellow lawyers might not agree.
NG: What do you see as the primary reason lawyers commit malpractice? Lack of ethics? Greed? Simple errors in judgment?
WG: Malpractice, meaning the failure to properly handle a case, is not typically a greed thing. Greed and lack of ethics come into play in overbilling cases. I can’t give you a “primary” reason, but I can give you what I think are the top three. First, overwork is right up there. Lawyers are stretched too thin and not devoting enough time to the proper care and treatment of their cases. Malpractice happens as a result of simple oversight. Second, inexperience is another big reason. Lawyers, both young and old, are handling matters that are beyond their skill and experience, and for the younger lawyers, there’s not enough oversight from more experienced attorneys. A third reason is lawyers not fully evaluating their cases up front. They rush into a lawsuit only to discover much too far down the road that their case is in serious trouble. And, an adjunct to these three reasons is that the law has simply become extraordinarily complex.
NG: What’s it like for people when they discover their lawyer, who you sue, have not done their job properly?
WG: There is a direct correlation between how close the loss is to a client’s basic survival and the degree to which they are devastated by the outcome. Put another way, the poorer they are, the more shocked and destroyed they feel by learning their lawyer has lost their case as a result of negligence. Successful businesspeople and corporations tend to be, shall we say, more businesslike about suffering a loss. But, imagine how crushed a person must feel knowing they are going to jail because their lawyer was ineffective, or they’ve lost their workers’ compensation benefits because of their lawyer’s negligence, or they’ve been deprived of critically needed personal injury damages because their lawyer has missed a statute of limitations.
NG: What can lawyers do to prevent themselves from getting sued?
WG: Preventing malpractice is really just the flip side of what I listed as its causes. So, first of all, slow down and give your client’s case the attention it deserves. Don’t shortcut the needed work, and try not to get overloaded with cases in your practice. Second, don’t take on work that you’re not capable of handling, or where you can’t supervise the work of inexperienced associates. Your client’s case is not the place to learn a new practice area. And finally, put the work into evaluating the case up front. Do the research, interview the witnesses, question your client as the opposing counsel will. I have one other suggestion that involves a lesson from the medical profession. A study published in Health Affairs in October 2017 found that in patient injury cases, sometimes a straightforward explanation and an apology for what went wrong in the hospital goes a long way toward preventing medical malpractice litigation. In my own practice, I have found that clients can be as upset, if not more upset by the lawyer’s refusal to accept responsibility and say they’re sorry than they are about the loss itself.
NG: How have legal malpractice cases changed since you began practicing?
WG: That’s simple. Clients suing their lawyers has become more acceptable and easier to do. There’s not the stigma attached to suing lawyers because I think lawyers have lost what used to be their long-time relationship with their clients. Law has become a more fungible commodity, so there’s not quite the guilt in suing your lawyer. There’s also been a very large increase in overbilling cases as the billable hour, and the pressure to increase billings and earnings has continued to intensify across the legal landscape. When lawyers go after clients for excessive fees, it gives malpractice lawyers a chance to review the work that’s been done, and often malpractice is discovered that way. That’s why every malpractice insurance carrier urges their lawyer insureds not to sue their clients for fees.
NG: What strikes you as the most interesting part of malpractice law?
WG: What I have loved about this area of practice is the incredible diversity of cases I’ve worked on. Because of the concept of proving the “case within the case,” meaning I have to prove that the underlying case would have succeeded, each malpractice case I handle requires me to become knowledgeable about that case’s area of law. So, I’ve had to become expert in dozens of different practice areas, including personal injury, employment law, securities, real estate, trust and probate, corporate, bankruptcy, family law, and even a little criminal law. Every case brings a new challenge.
NG: What could attorneys do differently to benefit their clients and society?
WG: Let me change the focus of the question slightly. I would ask: What can attorneys do to benefit themselves? It’s sort of a “physician, heal thyself” analysis. I would advocate that lawyers practice law with a sense of morality, and what I mean is they should keep a close eye on their moral compass and have a sense of right and wrong about what they do. In whatever practice area they are in, there is a right way and a wrong way to do their work. They can and should find the moral rightness of what work they are doing and proceed with a sense of integrity and ethics. If they do, they will benefit themselves and in turn, benefit society and their clients. Oh, and it wouldn’t hurt to read Max Ehrmann’s “The Desiderata” once a year.
About the Author
Nicholas Gaffney is the founder of Zumado Public Relations in San Francisco, CA and is a member of the Law Practice Today Editorial Board. Contact him at firstname.lastname@example.org or on Twitter @nickgaffney.