Legal Malpractice

Category: Legal Malpractice

November 12, 2014 • Legal Malpractice, Professional Liability Matters, Risk Management

S.O.L.: The Continuous Representation Doctrine

Statute of limitations laws are intended to protect defendants from stale and meritless claims. Moreover, these statutes pressure plaintiffs to institute supported causes of action while the evidence is ripe. Certainly, these statutes are an ally to the defense bar and can be a major obstacle for plaintiffs. A plaintiff asserting a professional malpractice claim may attempt to circumvent a time-bar defense through the continuous representation doctrine. The argument is that the continuing professional-client relationship delays the accrual of a claim. This theory was recently asserted successfully in New York against an attorney.

November 11, 2014 • Legal Malpractice, Professional Liability Matters

Former Client May Sue Without Appealing Underlying Matter

Generally, a plaintiff has an obligation to mitigate her damages. In the context of a legal malpractice claim, the professional may argue that the plaintiff is obligated to cure the alleged harm by appealing the underlying issue. In the appropriate scenario, the defendant attorney may claim that the plaintiff had the last opportunity to avoid any damages but improperly filed a malpractice claim as opposed to appealing the underlying matter. Just how far must a plaintiff proceed with litigation before pointing a finger at former counsel? This issue was recently addressed by the to the New York Court of Appeals in a case of first impression.

November 4, 2014 • Engagement Letters, Legal Malpractice, Professional Liability Matters, Risk Management

Duties to Non-Clients: The Exception, Not the Rule

The standard malpractice claim pits former client against professional. In most scenarios, the client alleges that the professional’s conduct fell below the acceptable standard and/or below the expectations set forth in the engagement contract. On occasion, non-clients test the waters and sue professionals under various theories. However, the knee-jerk defense to claims from non-clients is usually lack of privity. Lack of privity is often a successful defense but there are exceptions to the general rule. Professionals must be aware of these exceptions and take into account non-clients who may have standing to assert a malpractice claim.

October 30, 2014 • Legal Malpractice, Professional Liability Matters, Technology

Protect Your E-Filing Passwords

It wasn’t long ago when filing deadlines forced attorneys to rely on the speed and reliability of their process-server or messenger. How many filings were missed due to a flat tire or traffic? If the filing wasn’t stamped before the court closed at 4 PM, the filing could be considered late and the attorney left answering to the client. The dawn of electronic filing has changed this process. Many courts accept filing up to midnight of the due date and hand-delivery is no longer a requirement. But how many of you have considered some of the risks of e-filing? How about the importance of monitoring your filings and safeguarding your e-filing password? Consider the lesson taught to an attorney subject to discipline in New York for allowing non-attorneys to use his e-filing information without proper oversight.

October 21, 2014 • Legal Malpractice, Professional Liability Matters, Risk Management

Know When to Hold ‘Em, When to Close ‘Em

Although not nearly as satisfying, in many ways closing a file is just as important to a professional as opening one. How and when to close a file is a component of best practices. Most professionals follow some document retention protocol (and if you don’t, you should). But an interesting wrinkle arises when it’s not entirely clear when the engagement has come to an end. Some cases are withdrawn, some clients sign an engagement letter but do not pursue the claim, some clients decide to retain new counsel without documenting the decision. To take into account these uncertainties, professionals must implement safeguards to monitor each client relationship and, when necessary, to document that the professional relationship has ended. By keeping files up-to-date, both old and new, professionals can help to avoid many hazards and ethical dilemmas.

October 14, 2014 • Ethics, Legal Malpractice, Professional Liability Matters

The Lying Client: An Attorney’s Obligations

ABA Model Rule of Professional Conduct 3.3, Candor Toward the Tribunal, mandates that an attorney may not knowingly offer false evidence. That’s the easy part: don’t lie. Things get a bit more complicated when it is the client engaged in knowing misrepresentations or deceit. In circumstances when an attorney is aware of a client’s lies, the attorney “shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.” But what are “reasonable remedial measures”? How soon must the conduct be reported and how? Although there is some helpful analysis available, it is within this gray area that many attorneys may find themselves in an ethical dilemma. Take for instance, the recently suspended Illinois attorney who waited 1 ½ years before correcting his client’s lie.

October 7, 2014 • Legal Malpractice, Professional Liability Matters

Former Lawyer for Rosa Parks Targeted in New Suit

A New York auction house has targeted Rosa Parks’ former lawyer, claiming that he mishandled her estate. According to the claim, the attorney caused the auction house millions in damages based on his alleged misrepresentations that Parks’ heirs had authorized the estate to proceed to auction. In particular, Parks’ reported $10 million estate included her Congressional Gold Medal and a postcard from Martin Luther King, Jr. Instead of proceeding to an individualized private auction as originally contemplated, the auction house alleges that the attorney’s gaff led to a lump sum sale of the estate to a non-profit organization which gifted the items to a museum.

September 30, 2014 • Legal Malpractice, Professional Liability Matters

Malpractice for Failure to Predict Change in the Law?

Rules are made to be broken, right? The same can be said about legal precedent, which may change over time. Although it’s uncommon for courts to ignore precedent, it does happen from time to time whether it be outdated, no longer applicable or due to the political/philosophical makeup of the presiding judiciary. Unanticipated, new law may create unique problems for attorneys. When the law is clear, an attorney’s obligations are clear. The attorney needs to either distinguish it or apply that law to the facts of her case. But what happens when applicable precedent is overruled altogether? The lawyer can’t be expected to anticipate a change of law, right?

September 23, 2014 • Legal Malpractice, Professional Liability Matters

Don’t Judge a Client by its Cover

Clients come in all shapes and styles, backgrounds and personalities. Some are needy; they are less knowledgeable and require handholding, they have a litany of questions and need more attention. Others are more sophisticated, understand the subject matter, have been there before and therefore ask less from you. The sophisticated client is a treat because she understands general concepts and allows you to focus elsewhere, right? Nope! The professional that takes her client lightly, hits the autopilot switch and relaxes her attention is asking for trouble. Consider this recent malpractice claim out of New Jersey.

September 18, 2014 • Legal Malpractice, Professional Liability Matters, Risk Management

The Continuous Treatment Doctrine: A Doctor’s Nightmare

Every jurisdiction maintains a series of statute of limitations which set the amount of time a litigant has to initiate a claim before it expires. Some of the purposes of these statutes is to prompt reasonable diligence by the plaintiff to initiate claims and to prevent exposure for long dormant claims. Attorneys are familiar with the various exceptions that act to toll the limitations period, and establishing when the statutory period begins to run can sometimes lead to protracted litigation in its own right. Here, we focus on the “continuous treatment doctrine” against the backdrop of a particularly scary decision for the medical malpractice community.