Time
January 12, 1976
Section: The Law
Page: 53-54

Other California lawyers grumble that Sacramento Attorney Edward P. Freidberg is "a wise guy just looking for trouble." What bugs them is not that Freidberg, at 40, is one of the busiest medical- malpractice lawyers on the West Coast, and earns an income that allows him a large house in Sacramento, an apartment in Los Angeles, a condominium in Hawaii and a pair of race horses. Freidberg upsets his colleagues because he is pioneering in what promises to be a busy new activity in the field of profession malpractice: big-money court suits against negligent lawyers.

Though they have not yet reached the epidemic level of medical-malpractice cases, suits against lawyers are increasingly at a steep rate. Companies insuring lawyers estimate that the number of claims has doubled in the past four years. The current issue of Juris Doctor  reports that "warnings are out for every attorney." Predicts Fred Grabowsky, counsel to the District of Columbia bar: "This is the next growth area of the law. Once the doctors have been picked clean, the lawyers will be hauled in. People won't let any professionals get away with mistakes."

So far, most malpractice suits against lawyers have resulted from downright negligence or technical foul-ups: administrative and clerical errors, deeds filed improperly, and even failure to file a suit on time. Recently, a former patient at Prince George's General Hospital outside of Washington, D.C. hired an attorney to file a malpractice suit against the hospital. Mistakenly believing he had three years to file instead of six months as prescribed by local law, the lawyer delayed too long and this booted the case. The client sued his attorney for negligence and won $100,000 in damages.

Damn Fool. One of the early big-money cases of legal malpractice was the one that drew Lawyer Freidberg into the field. In 1967 Rosemary Smith, a Sacramento housewife, sued to divorce her husband, a retired general in the state National Guard. Her lawyer advised her that she had no claim to a share of her husband's pension. Then after the settlement she learned that such benefits are indeed considered community property in California. Mrs. Smith decided to sue her counsel. Three lawyers declined to take the case; Freidberg accepted it, took the attorney to court and eventually won a judgment of $100,000. Early last year the influential California Supreme Court upheld Mrs. Smith's claim in a decision that set high standards for the performance of attorneys. Said the court: "Even as to doubtful matters, an attorney is expected to perform sufficient research to enable him to make an informed and intelligent judgment on behalf of his client."

Though clients seem increasingly eager to sue for lawyers' malpractice, lawyers are not as enthusiastic about bringing another attorney to court. Says Freidberg: "Lawyers don't have enough self-confidence to say, 'If another attorney is negligent, let him fall.'"

Freidberg's firm has won four major legal-malpractice suits, totaling $282,000 in damages. He has four more suits pending and plans to file another soon. Meanwhile, his track record has brought him calls from prospective clients from all parts of the country. Says John Malone, executive secretary of the California bar: "An attorney who does not take malpractice insurance today is just a damn fool."

Those who do still pay much less for their protection than doctors; annual rates average about $325 nationwide, v. $2,000 for doctors (who pay much more in some areas). Yet legal-malpractice premiums are rising. Premiums jumped an average of 300% last year in Wisconsin to more than $600. The major underwriter in Michigan was granted a 72% increase to an average of $321, and insurers are seeking even bigger increases in other states.

The American Bar Association has set up a malpractice task force to seek ways of avoiding the plight of the premium-strapped medical profession. Yet some lawyers suggest that the rise in malpractice suits is just a symptom of a more fundamental problem. Says Freidberg: "There's a certain percentage of lawyers who are just flat out incompetent, and this is well known among those in the legal community." Still, most state bars have been lax in disciplining lawyers except on grounds of gross misbehavior. Until judges and bar associations find more effective ways of checking on the quality of legal services in their jurisdictions, a major share of the policing power will be left to individual lawyers and their angry clients.