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Legal Malpractice Brings Unique View of Brethren's Vices
Meredith Hobbs
Fulton County Daily Report
12-04-2006

When Frank J. Beltran started suing other lawyers in the early 1980s, some colleagues were aghast.

He recalled a case in Valdosta, Ga., around that time where the defense lawyer leaned over in the middle of a deposition and whispered, "Frank, what's it like suing a lawyer?"

Times have changed, and the stigma of suing other lawyers has lessened, he said. Even so, he still gets a lot of referrals from lawyers in small Georgia towns who don't want anyone to know they're helping someone sue one of their own. In Atlanta, that isn't an issue, Beltran said: "Nobody cares here. It's too big for that."

But lawyers will testify against each other more readily than doctors, said Beltran, who handled some medical malpractice cases early in his career. "Lawyers understand that it's just business," he said. "They can go to court against someone and then shake their hand. Doctors don't have that experience, and they're scared of the legal system."

Most legal malpractice suits settle, and generally, the former client who's suing just wants restitution, not punitive damages or pain and suffering compensation as in medical malpractice suits, Beltran said.

He gestured toward a notepad on the table and said that when he started handling legal malpractice cases, the only reference work on the topic was no thicker than the pad. Now the authoritative work, called simply "Legal Malpractice," runs to five volumes. It's co-edited by Jeffrey M. Smith of Greenberg Traurig, who referred Beltran his first legal malpractice case.

Beltran joined Alston Miller & Gaines, now Alston & Bird, in 1976 after receiving his law degree from Mercer University, but left after a couple of years because he wanted to do plaintiffs work. A Macon, Ga., lawyer whom he'd clerked for in law school started referring him lawyer discipline cases while he was still at the Alston firm, mostly for aspiring lawyers who needed to convince the State Bar of Georgia that the youthful indiscretions on their record were a thing of the past.

Beltran, 55, formed his own firm, Beltran & Associates -- which now has three lawyers, including himself -- in the early 1980s and, after his initial legal malpractice referral from Smith, gravitated toward the specialty, which remains a very niche practice. He represents both plaintiff-clients and defendant-lawyers in malpractice suits, with more plaintiffs than defense work. Litigation accounts for about half his practice, and representing lawyers before the State Bar on discipline charges makes up another third. He also represents lawyers in fee disputes and serves as an expert witness in malpractice cases. Almost all of his cases are referrals from other lawyers.

Although the number of legal malpractice suits has increased in the quarter-century that he's been handling them, Beltran thinks that the notion of an impending legal malpractice crisis, akin to that in the medical profession, is a myth. Statistics from the American Bar Association back him up: A study of legal malpractice claims self-reported by insurers shows a decrease in the number of claims and only a slight increase in claim size from 1999 to 2003, the most recent time period available.

But in continuing legal education lectures, Beltran tells lawyers to expect three to five lawsuits and bar complaints in their careers. In the early 1980s, Beltran said, Smith told lawyers to expect only one or two lawsuits and bar complaints.

Beltran said the increase in suits is mainly because there are so many more lawyers practicing today. He thinks the increase also comes from better-educated clients, who are more likely to ask questions, and the weakening of the taboo against suing lawyers. But he added that one practice area is seeing a marked rise in the number of malpractice suits. "You know who's getting sued more? It's insurance defense lawyers when they blow a case," he said. "It's a numbers thing. Insurance companies in the past would write it off. Now they want to recoup it." He added that there is not the same loyalty between insurance companies and their outside counsel as in the past.

Simple things like missed deadlines are the most common causes of malpractice suits and bar complaints for lawyers, Beltran said. He estimated that in 95 percent of cases, personal stress, such as a divorce, addiction or depression, causes a lawyer to make mistakes. "Most of the time the lawyer is not a bad person -- just careless," he said.

He gave a particularly messy example from his case files: A lawyer who was getting divorced had an affair with his secretary and took money out of his trust account to buy her gifts. But then he broke off the affair. She got upset and filed a bar complaint.

Beltran said he once represented a judge who had been drinking in the morning. A cop pulled the judge over, recognized him and let him go. But then the judge sped away too fast, and the cop arrested him.

When it comes to the Gwinnett County judge who was caught on camera by a TV reporter three years ago driving off drunk from a bar, Beltran said if he'd been the man's lawyer, "I'd try to get him help," adding that there is an entire chapter in Smith's legal malpractice primer on impaired lawyers. Beltran said he's had judges fire him when he's tried to get them counseling. They tell him, "I'm a judge; I know what I'm doing," or they say that the problem was a one-time incident.

"Many times I feel like I'm ministering to the client or the lawyer," said Beltran, who was the ninth child in a Catholic family. (Two of his brothers became priests, and two of his sisters became nuns, although one later left her order to get married.)

When asked if he is religious, Beltran replied, "I'm spiritual."

Frequently, lawyers make things worse for themselves by trying to cover up their mistakes. "It's like a wounded dog in the corner. They panic," he said.

Beltran said he'd made a lot of money over the years from cases where lawyers got caught altering or faking documents, for instance, creating letters long after the fact notifying clients of court dates, hearings and depositions to cover up a prior failure to notify them. A client's failure to appear in court could trigger a default judgment.

He said he has caught lawyers faking documents when they used their firm's current letterhead instead of letterhead corresponding with the document's date -- or the name of a secretary who was not with the firm at the time. Others have forged filing date stamps on documents that, when Beltran checked at the courthouse, had never been filed.

In every case where he's defending a lawyer, Beltran said, he thinks, "There but for the grace of God go I." He too could transpose a date for a filing deadline or court appearance, he said: "That's why I have insurance."

No state except Oregon requires lawyers to carry malpractice insurance, but Beltran said lawyers should "absolutely" have it. He and the other members of the State Bar's malpractice committee are trying to get the bar to require lawyers to at least alert clients if they carry less than $100,000 in malpractice coverage. "We're trying to do it in steps," he said.

Some practitioners oppose insurance requirements because they think the expense would be prohibitive for lawyers practicing solo or in small shops. Beltran disagrees. He said that for his firm, which has two experienced lawyers and one brand-new one, he pays less than $5,000 a year for $2 million in coverage.

Has Beltran ever turned down a client?

"Yes," he said. "If they're not honest, if I don't like them or if they think they know more than I do."

Suits by clients charging their lawyers with conflicts of interest have increased somewhat as firms and their clients grow larger and larger, but Beltran adheres to the notion that a firm cannot serve two masters. "The best advice is not to touch it. But lawyers are afraid they're going to lose business."

Just last month in Fulton County Superior Court, McKesson Corp. won an injunction against its law firm, Duane Morris, for representing plaintiffs against a McKesson subsidiary in Atlanta when the firm was already representing other McKesson subsidiaries in an unrelated Pennsylvania matter.

Beltran advises lawyers to avoid suing clients to recover fees, since this can often trigger a malpractice countersuit. He recalled one case where he represented a woman who sued her lawyer for failing to tell her about a $250,000 settlement offer in a case that he subsequently lost. She discovered the omission after he sued her for expenses. He refused to turn over the case file, so she got it from opposing counsel -- and discovered the settlement offer, which her lawyer had turned down, hoping for a bigger win in court.

"The thing he did that was wrong was not telling her about the settlement offer. The thing he did that was stupid was suing her for expenses," Beltran said.

In another case, a lawyer agreed to witness a will for a friend -- after the friend had died -- as a favor for the widow. She then refused to pay his fee. He sued her for it, and she filed a bar complaint exposing him for improperly witnessing the will.

The ugliest suits are those where lawyers sue lawyers, which can happen when lawyers dissolve a partnership. "When lawyers split up it's worse than a marriage," Beltran said, observing that some get vindictive as "ego and testosterone" kick in. And fee disputes all too frequently can turn into lawsuits, Beltran said. For example, two lawyers work on a case and agree to split the fee equally. The case settles, and their fee is $1 million. But Lawyer A gets greedy and wants more than half. Lawyer B protests and litigation ensues.

Don't they sign a fee agreement when they decide to work together?

"They're supposed to," Beltran said. "But it's like the shoemaker's children. A lot of lawyers don't have written fee agreements with other lawyers [including, he said, some big-name lawyers whom he declined to name]. They also don't have wills.

"Lawyers have a tendency to be ostriches. ... They're always hoping things will go the way they should go. In the real world, it's not that way," he said.