The Risks From Inadequate Background Checks By Law Firm Employers
We’re all mostly familiar with the general concept that an employer is liable for its employee’s wrongdoings while on the job under many circumstances. One of the theories under which liability may be imposed on the employer stems from instances where an employer did not adequately conduct or even do a background investigation of the employee’s qualifications and history prior to hiring him/her. While this seems straightforward in many contexts, the water is muddied when this concept enters the realm of hiring by law firms, especially when firms hire experienced attorneys. With respect to negligent hiring, surprisingly, many “Big Law” firms and some experts believe the standard that law firms should be held to when hiring attorneys is one defined by custom and practice. In other words, if they follow the same procedures that other law firms follow when hiring associates or lateral hires, then the firm has done its due diligence and should not be held liable for negligent hiring. For example, when hiring experienced attorneys or lateral hires, firms sometime rely solely on references from past employers and whatever materials that attorney has provided, rather than conducting independent background checks. However, this “custom” does not always translate to being lawful and/or acting in the best interest of clients seeking representation; nor does “custom” mean a new employee-attorney of a firm doesn’t have an unfavorable past, to say the least. In fact, blindly following this “custom” can have a disastrous snowball effect. Given the skeptical public image of the integrity of attorneys, the legal community as a whole should start making changes in its hiring process for its own sake.
A perfect example of a law firm’s inadequate investigation prior to hiring an attorney recently made its way into the news recently: Kimberly Kitchen of James Creek, Pennsylvania was charged with forgery and unauthorized practice of law after she had feigned being an attorney for nearly the past decade while employed by BMZ Law in Huntingdon, PA. In fact, she had recently been made a partner of BMZ Law before her fraud was discovered in late 2015. According to the news article, Kitchen fooled BMZ Law by forging a law license, bar exam results, an email showing she attended Duquesne University law school, and a check for a state attorney registration fee. She was even the past president of the Huntingdon County Bar Association. While you may be thinking (and I generally agree) that Kitchen went above and beyond to pull this off, one glaring thought comes to mind—couldn’t her fraud have been easily uncovered by anyone doing a basic background investigation or by someone who conducted an attorney search on the public state bar website? As the article states, “the state attorney’s registration office shows no listing for her.” Failing to do such simple due diligence upon Kitchen’s hiring was an immeasurable mistake on BMZ Law’s part; following “custom” will not be a viable defense.
Although Kitchen’s actions are “extreme” in the spectrum seeking employment without disclosing certain information (especially given her outright fraud), many of these omissions go either undiscovered and/or are not considered “important” by the hiring firms. For example, attorneys are frequently sued for malpractice. Since the people doing the hiring at law firms are also attorneys, there likely exists a bias that attaches a notion of unimportance to malpractice allegations (as many are disposed of via settlement or dismissal). While malpractice allegations are quite frequent in the legal community, they should nevertheless be taken seriously, especially during the hiring process. Conducting simple investigations to check which malpractice claims were meritorious or which involved more serious allegations should be worth a law firm’s time.
Law firms should be more careful when hiring attorneys, while clients should inquire into attorneys’ backgrounds as well as the background and history of the law firms that employ them. If you believe that you or someone you know has had incompetent legal representation, call a malpractice attorney immediately to determine if your previous attorney and/or the attorney’s firm may be held liable for malpractice and negligent hiring.
—By Ara M. Baghdassarian, Esq., Barnes Law
Ara M. Baghdassarian is an associate attorney with Barnes Law, licensed to practice law in California.
The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.