Legal Malpractice

Category: Legal Malpractice

September 2, 2014 • Legal Malpractice, Professional Liability Matters, Risk Management

Well Documented Advice Defeats Malpractice Claim

The best is not always good enough. Clients sue their professionals, whether justified or not. So, while there is no way to eliminate malpractice exposure, there are plenty of steps to avoid or help to defend such a suit. One of the golden rules of risk management is to properly maintain a written record of communications with the client. In particular, documentation is especially important when the client and professional may disagree. A well-documented file will not prevent all lawsuits but, as exemplified in a recent New Jersey decision, may serve as a dispositive defense during litigation.

August 5, 2014 • Legal Malpractice, Professional Liability Matters, Risk Management

Attorneys: You’re not Fortune-Tellers

Attorneys can’t predict the future. Even the most experienced of us cannot provide assurances about the outcome of our client’s claims and defenses. Sure, we’ll provide some suggestions and list the possibilities but it is the attorney who sets unreasonable expectations that may end up in trouble. Just ask the attorneys in Dallas who fell victim to a malpractice claim for allegedly over-promising a particular result to their former client.

July 31, 2014 • Ethics, Legal Malpractice, Professional Liability Matters

Becoming a Pro at Pro Hac Vice Admission

Pro hac vice admission is a valuable tool for an attorney seeking to practice in a state in which she is not licensed. A Latin term meaning “for this turn,” pro hac vice is a relatively simple process, requiring only a sponsor attorney and that the out-of-state attorney seeking admission be in good standing in her home state. However, pro hac vice admission is not without risks, as illustrated by a recent New Jersey case.

July 24, 2014 • Legal Malpractice, Professional Liability Matters, Risk Management

Unpunished Good Deeds: Pro Bono Considerations

Pro bono work is an important, and often fulfilling, aspect of an attorney’s practice. For those in financial hardship, the pro bono attorney may spell the difference between hope and disaster. However, some attorneys may hesitate to take on a pro bono assignment because they are wary of the potential for malpractice exposure. Indeed, one report found about half of all attorneys surveyed identified lack of malpractice coverage as a factor discouraging participation. This and other concerns are warranted. While pro bono work is to be encouraged in the appropriate circumstance, there are risk factors to consider before doing so.

July 22, 2014 • Legal Malpractice, Professional Liability Matters

Forum Shop to Avoid Malpractice

Have you considered the possibility that attorneys are susceptible to malpractice for failing to initiate suit in the venue most advantageous to their client? Forum shopping is a common term for the practice of initiating a claim in the court thought most likely to provide a favorable judgment. Whether it’s due to the laws of that jurisdiction, a more sympathetic audience, convenience, the fact-finder, or myriad other considerations, the venue may make a big difference. But, as we learn from a recent decision, the attorney that picks the wrong door may be exposed to a malpractice suit.

July 15, 2014 • Legal Malpractice, Professional Liability Matters

Study: 2013 Legal Malpractice in Review

The recent recession contributed to a surge in legal malpractice claims. Feeling the pinch, financially strapped clients sought ways to recoup legal fees and litigation losses. The result was an uptick in claims against attorneys. Now that the economy has turned somewhat, one would expect to see a decline in legal malpractice claims. This is somewhat true according to a recent survey. While the overall number of claims has dropped, the severity of claims is on the rise. Also, the types of malpractice claims from 2013 may be telling of what the future holds for the malpractice community.

July 8, 2014 • Ethics, Legal Malpractice, Professional Liability Matters

The Ethics of Lateral Moves

Attorneys are on the move. Today’s lawyers rarely stay at the same firm for the duration of their career. Rather, it has become commonplace for associates, partners, of counsel, shareholders, members and any other type of attorney to move at least once before settling on a long-term professional home. Some attorneys leave for money. Some for opportunity or geography. Some leave for personal reasons. Some attorneys may switch firms in the hope that they can transfer business to firms better suited to their particular practice area, or that can better meet their clients’ needs. Regardless of the motivation behind a lateral move, attorneys must consider the ethical consequences of leaving one firm for another.

July 1, 2014 • Legal Malpractice, Privileges, Professional Liability Matters

Confidentiality Provisions: From Shield to Sword?

Mediation may provide an efficient and effective path toward settlement. But, as we discussed in prior posts, settlements sometimes unhinge or litigants may have a change of heart. Despite the tools that we previously recommended to avoid this scenario, a litigant may ultimately conclude that her settlement was not the best option and turn on her attorney with a malpractice claim. Given that mediation sessions are confidential (whether by agreement or law or otherwise) and discussions during mediation cannot be utilized at trial, some attorneys on the wrong end of a malpractice claim have attempted to use the confidentiality shield as a sword. Does this work? Read on to find out.

June 19, 2014 • Legal Malpractice, Privileges, Professional Liability Matters

Privilege Issues When Attorneys Consult with Attorneys

Attorneys need help too. When issues arise during an attorney-client relationship, attorneys may consult with colleagues about the representation. Some firms rely upon outside counsel to serve this function. Other firms maintain an internal team of attorneys designated to address such issues. Either practice is considered good risk management. But, the application of the attorney-client privilege to these communications is not entirely clear and may vary amongst the jurisdiction. We discussed this issue previously, here. In a recent decision, the Oregon Supreme Court held that such internal communications were not discoverable in a malpractice action.

June 3, 2014 • Legal Malpractice, Professional Liability Matters, Trial Tactics

When Tempers Flare: Liability Arising from Deposition Fight?

Litigation can get heated. Tempers may flare when the stakes are high and the result can be contentious exchanges amongst counsel. Sure, the adversarial nature of litigation is to be expected (and welcomed by some practitioners), but there is a line in the sand. Some cross that line and make things personal. What to do when things spiral out of control? Can insults form the basis for a separate suit amongst counsel?