Legal Malpractice Defense Mistakes: 10 Ways Lawyers Hurt Their Case

Legal malpractice defense mistakes can jeopardize an attorney’s ability to mount a strong response when facing scrutiny or a claim. Seemingly routine actions can have unintended legal consequences, such as turning over a file without keeping a copy, responding to a subpoena without legal guidance, or sitting for a deposition prematurely.

These missteps often arise from a desire to appear cooperative or resolve matters quickly. Still, they can interfere with strategy, limit significant objections, or create discoverable evidence that weakens the defense. In fact, data from the 2023 ARDC Annual Report shows that the most common allegations against attorneys include neglect (30%), incompetent representation (14%), fees or billing issues (11%), improper management of client trust funds (11%), and failure to communicate (7%).

These statistics underscore how procedural errors—often perceived as harmless—can lead to major disciplinary consequences. Understanding the risks behind these decisions is critical to protecting your practice, reputation, and long-term liability exposure.

Don’t Surrender Your File Without Retaining a Copy

Legal malpractice defense mistakes often begin with the mishandling of a client file. Once a matter is transferred to successor counsel, some attorneys believe they no longer need to keep a copy of the file. This assumption is not only incorrect, but dangerous. The original documents and critical notes may become irretrievably mixed with the new attorney's records when the file is handed over without retaining a duplicate.

If key materials are lost, including notes demonstrating adherence to the standard of care, the attorney is left vulnerable to claims without any supporting documentation. In the event of a malpractice suit, opposing counsel may even argue that those records never existed.

Never Respond to a Subpoena Without Defense Counsel

One of the most serious legal malpractice defense mistakes is responding to a subpoena before consulting defense counsel. Not all documents in your file may be discoverable, and many may not be responsive to the subpoena at all.

For example, third-party documents like bank statements or medical records should be obtained directly from the original sources, not your client file. Producing these records without legal review can result in unnecessary disclosure, create new legal exposure, or even lead to a deposition. Attorneys are not document repositories for future litigation. Let the party issuing the subpoena follow the appropriate procedures to obtain records from the original custodians.

Don’t Sit for a Deposition Without Legal Guidance

Participating in a deposition without the support of defense counsel is a classic legal malpractice defense mistake. Even if no formal claim has been filed, unrepresented testimony can expose you to unnecessary liability.

The examining attorney may be focused on shaping a narrative supporting their case theory, not establishing neutral facts. What begins as a cooperative gesture could quickly evolve into grounds for naming you as a defendant. Always ensure your rights and interests are protected by consulting counsel before agreeing to testify.

Always Provide the Full File to Defense Counsel

Delivering only selected portions of your file to your defense attorney is a preventable mistake that can undermine your case. While it may seem efficient to share only the "pertinent parts," doing so limits your counsel's ability to assess and object to irrelevant or harmful materials.

Worse, if additional documents that appear to contradict your initial production are introduced later, your credibility may suffer. A complete and organized file allows your legal team to build the strongest possible defense and avoid unpleasant surprises in discovery.

Avoid Scanning and Reorganizing Large Paper Files Yourself

Attempting to scan and restructure a large client file on your own can disrupt important context and structure. Defense counsel often relies on the original organization of a file to evaluate how the matter was handled and to track the evolution of key decisions.

Altering that structure can raise unnecessary questions or obscure essential information. When a file is substantial, allow your counsel to manage scanning and digitization in a way that preserves its evidentiary integrity.

Review Your Client File Thoroughly Before a Deposition

Another common legal malpractice defense mistake is failing to review your client's file before being deposed. Even if you believe you remember the details clearly, time and case volume can cause even the most diligent attorneys to forget specifics.

Opposing counsel will be prepared to scrutinize your actions and records with a fine-tooth comb. A careful file review helps you refresh your memory, clarify the timeline, and prepare for potential lines of questioning. This preparation is not optional, but it is essential.

Don’t Conduct Your Own Research Once a Claim Arises

Once litigation or a claim is anticipated, conducting your own legal or factual research may seem helpful, but it creates unnecessary risks. Unlike the work product of your defense attorney, your personal research may be discoverable and used against you.

For instance, if your own notes reveal case law that contradicts your legal position, it could damage your credibility. Protect yourself by deferring all research, expert analysis, and fact-finding to your legal team.

Refrain From Discussing the Case with Friends or Colleagues

Talking about a pending malpractice issue with peers, mentors, or friends may seem harmless, but these conversations can come back to haunt you. Anything shared outside privileged communication channels may be discoverable.

Individuals you spoke to could be called as witnesses, and their recollection of the conversation may differ from yours. In legal malpractice defense, silence is often your strongest ally. When in doubt, speak only with your counsel.

Don’t Retain or Consult Your Own Expert Without Counsel

Engaging your own expert outside the direction of defense counsel is a serious misstep. Conversations with experts, particularly if they are personal contacts, may be subject to discovery.

If those experts are not properly vetted, or if you've disclosed problematic details in your discussions, you may inadvertently weaken your position. Let your attorney identify and manage expert witnesses to ensure confidentiality, objectivity, and strategic alignment with your defense.

Avoid Keeping Client Files Beyond the Retention Period

Maintaining client files indefinitely is one of the more overlooked legal malpractice defense mistakes. While retaining documents "just in case" may feel prudent, the long-term risks often outweigh the perceived benefits.

Old files can resurface through subpoenas, dragging you into litigation years after representation ends. Comply with your firm’s retention policy and applicable ethical guidelines. Once the retention period expires, securely destroy the file and reduce your future exposure.

Avoiding Legal Malpractice Defense Mistakes Protects Your Case

Legal malpractice defense mistakes are often made during the initial stages of litigation, when well-intended actions may conflict with sound legal strategy. Failing to consult defense counsel, preserving unnecessary records beyond retention periods, or engaging in informal conversations about the case can create lasting complications.

By recognizing and avoiding these types of mistakes, attorneys place themselves in a far stronger position to defend their professional conduct and avoid unnecessary exposure. Careful coordination with experienced defense counsel from the outset remains the most effective safeguard against escalating liability.

For guidance on how to avoid mistakes with your legal defense, please contact the professional liability and risk management specialists at ISBA Mutual Insurance Company.