When facing trouble, who are the lawyers that other lawyers hire?

A lawyer in trouble – whether being sued for malpractice, charged with a crime or threatened with bar discipline – faces that moment where he or she has to decide: “Who you gonna call?”

The well-regarded lawyers who get those calls, to represent judges and other lawyers, say they are honored to be in that position. Moreover, they say their clients are generally good teammates in the fight.

Lawyers hired by other lawyers are rightly seen as a special breed. While most clients have to choose lawyers based on word of mouth or advertising, lawyers and judges usually hire counsel based on direct observation of those attorneys’ skills and temperament.

Thomas B. Shuttleworth of Virginia Beach said he is “flattered and humbled” by the lawyers and judges who have chosen him as their counsel. “I figured they saw me in action and liked what they saw,” he said. Others echoed his sentiments.
But the assignment comes with a measure of extra pressure. “There is a lot at stake for a fellow professional,” said Andrew M. Sacks of Norfolk.

Client control can be an issue. “It’s hard to be a client when you’re a lawyer,” noted Anthony F. Anderson of Roanoke.

Generally, however, the respect earned by the lawyers chosen by other lawyers seems to give them an edge in avoiding conflicts with their colleagues-turned-clients. Sacks said his clients “have been very willing to trust what we say and not become overly active in trying to manage the case.”

Anderson said he lets the client know up front that he – not the client – will be in the driver’s seat. Just because the client is a fellow lawyer, “you don’t have to relinquish your independent professional judgment,” he said.

Often there are emotional issues at the beginning that the lawyer-client has to leave behind. Richmond’s Douglas P. Rucker Jr. said his legal malpractice clients, by and large, have been “very good clients and teammates” once they got over their denial, fury or remorse about a claim.

“Right off the bat, we try to create a good working relationship,” he said.

Richard E. Ladd Jr. of Bristol, who has represented lawyers for 25 years, agrees it’s important to get an early understanding. “I make it clear from the outset: This is a team effort,” Ladd said.

Ladd said the client has input in all decisions. If disagreement arises, it usually can be worked out. Ladd emphasized that he strives not to be judgmental about the accusations against his lawyer-clients. “We all make mistakes at times in a professional career,” he said.

Ladd said the biggest problem he has with representing lawyers who are sued by their clients is getting them to realize the game has changed. It’s hard to persuade them to give up their dreams of making amends and keeping a business relationship with the client.

He said most lawyers instinctively want to try to fix the damage. “Sometimes there is no fixing to it,” he said. He needs to persuade such lawyers the landscape has changed from an attorney-client relationship to an adversarial relationship.

The change can be profound. In the case of a lawyer who missed a filing deadline for a lawsuit, for instance, the lawyer’s interest is no longer in the success of that lawsuit. As Ladd points out, the lawyer may now want to take the position that the thwarted lawsuit is a loser.

That gives rise to a bit of advice from Ladd: be careful what you tell clients about their prospects for success. Ladd said he faced a challenge in a case where a lawyer all but guaranteed a hefty dollar value for the client’s case. That impromptu case evaluation was going to come in as evidence in the lawyer’s legal malpractice trial.

“You don’t want to be overly optimistic; you’re projecting something that may never happen,” Ladd said.
Rucker said legal malpractice claims often fall into common categories. For criminal lawyers, getting sued by former clients unhappy with prison life is no big deal. The cases are almost uniformly dismissed on motions.

When a lawyer blows a statute of limitations deadline, Rucker said, the lawyer’s negligence is undeniable. The malpractice case then focuses almost exclusively on the underlying legal claim – the so-called “case within a case.”

Divorce cases account for another large chunk of legal malpractice claims. In a divorce, “nobody’s happy,” Rucker said.
The variety of legal malpractice claims means the defense lawyer has to become a bit of a generalist, said Timothy J. Battle of Alexandria, who has handled more than 320 cases for lawyers. In additional to having basic knowledge of common practice fields, Battle said he’s had to research issues related to regulation of commodities futures trading and alcoholic beverage licensees in order to defendant his lawyer-clients. “You have to be on your toes.”

Ladd said trials of legal malpractice claims are rare. In his experience, around 5 percent go to court. The rest are settled.
One challenge for lawyers defending other lawyers – you probably won’t know your judge. As Ladd points out, local judges generally must step aside from hearing cases involving lawyers who have practiced before them.

“You lose at least a small degree of predictability for the client,” Ladd said.

With success comes satisfaction in helping a fellow professional preserve his career. Shuttleworth pointed to his representation of a lawyer accused of grabbing the throat of a prosecutor in a courthouse hallway. Although the lawyer was convicted of assault in criminal court, Shuttleworth persuaded a Virginia State Bar discipline panel that the proof fell short of the standard to prove misconduct.  The lawyer’s bar record remained clean, Shuttleworth said.

Lawyers who represent lawyers in criminal and VSB matters face a decision about fees. Several lawyers said they generally cut their fees for a fellow attorney. “I believe in professional courtesy,” Shuttleworth said.

Franklin “Lyn” Swartz of Norfolk also cuts fees in most lawyer representations. “That doesn’t mean I do it for free, but I generally reduce my fees,” he said. Swartz has represented lawyers primarily in criminal matters.

Anderson, in Roanoke, said he has charged some lawyers the same “if not more” than regular clients, but he has extended professional courtesy in other cases.

Lawyers who hope to avoid having to hire their own counsel might take a word of advice from Battle, the Alexandria lawyer who frequently represents lawyers in trouble with the VSB. He remarked that the lawyers known as the very best are very quick to call him or other colleagues when they sense a looming problem.

“It’s the best, smartest lawyers who are calling early on,” he said. “They don’t wait until things have blown up.” Not only is it a good call to make, Battle said, but it frequently doesn’t cost any money.

All of the lawyers for lawyers agreed: the practice is entertaining and rewarding. “I do consider myself fortunate,” said Battle. “It’s an interesting and busy practice, with smart clients.”