Professional Liability Matters

LATEST INSIGHTS

March 1, 2017 • Legal Malpractice, Malpractice Defenses, Professional Liability Matters

Family Feud leads to Privity Lesson

A somewhat bizarre family feud presents an interesting evaluation of the general requirement of privity in order to maintain a legal malpractice claim. Consider the circumstances of when an attorney is appointed by the court to administer an estate. Who is the client? A Kansas appellate court examined this situation in Schroeder v. Brewer, 2017 Kan. App. Unpub. LEXIS 101 (Kan. Ct. App. Feb. 17, 2017) which addresses whether an attorney may be held liable for legal malpractice while representing an Estate “against” the beneficiaries of the estate.

February 27, 2017 • Conflicts, Design Professionals (A&E), Professional Liability Matters

Sign, Sign, Everywhere Assign

Professionals owe a duty to their clients to satisfy the standard of care commonly exhibited by others within their profession. Consequently, privity is often required to maintain a malpractice claim; i.e. it is often the client with the exclusive right to sue her professional. This narrow application of standing assumes, however, that clients have retained their exclusive right to sue. In fact, as with many torts, clients may freely assign their right to file malpractice actions to third parties, even those that are adverse to the client in the underlying litigation.

February 21, 2017 • Coverage, Director and Officer Liability, Professional Liability Matters

Attorney + CEO = Coverage Denied

Attorney? Check. CEO? Check. Coverage? Unlikely. Some attorneys wear multiple hats. We have other interests, other business ventures, other opportunities to make a buck. Attorneys are often exposed to other areas of business depending on the nature of their practice. Through their role as counsel, or through other opportunities, some attorneys become more directly involved in non-legal businesses. The more traditional route is to switch to in-house counsel, but sometimes attorneys will go so far as to start a new company. While both are commonplace and not inherently problematic, issues begin to arise when an attorney is both practicing law and working for a company. The blurring of the line between lawyer and business executive not only creates potential conflicts of interest, but may have coverage consequences.

February 14, 2017 • Law Practice Management, Professional Liability Matters

Lawyers are Stressed Out

Running a professional practice can be stressful. To be successful, professionals often must work long hours, under tight time constraints, and respond to the needs of demanding clients, while simultaneously working to manage their business and market themselves to new clients. For many professionals, the challenge of working in a professional practice is part of the reward. However, for others, the work can at times be overwhelming. Statistically, an alarming percentage of the legal profession is stressed and, unfortunately, many are depressed.

February 2, 2017 • Legal Malpractice, Professional Liability Matters

Blown Deadline = $850,000

Ugh…deadlines. Many classes of professionals are bound by deadlines. Attorneys are no different. Pleading requirements, discovery responses, motions, hearings and other proceedings must all be calendared to ensure that an attorney meets all deadlines. In fact, an easy path to malpractice is to miss a deadline. A recent New Jersey verdict highlights the importance of complying with deadlines and maintaining clear and open communication.

February 1, 2017 • Professional Liability Matters, Real Estate Professionals

Title Insurer off the Hook for Closing Agent Misconduct

The closing of a home loan often involves multiple parties, and even a sophisticated buyer can be confused as to who represents whom. The individuals present can include representatives from the bank, real estate agents, title insurance agents, etc. However, each person in the room has a specifically defined role, and it is important for all parties to be aware of what these roles are.

January 26, 2017 • Ethics, Law Practice Management, Professional Liability Matters

No Office? No Right to Practice

Many attorneys are licensed to practice in multiple states. By extending one’s practice across several jurisdictions, lawyers can expand the scope of services offered to their clients and increase their appeal. However, in order to provide this service, lawyers must comply with certain laws requiring that the attorney maintain a physical office within the state in order to practice there.

January 24, 2017 • Miscellaneous Professionals, Professional Liability Matters

Appraiser Targeted for Foreclosed Home

It has been almost a decade since the subprime mortgage crisis rocked financial markets across the world. In response, we saw the introduction of the Dodd-Frank legislation, civil suits against many of the country’s largest banks, and the emergence of a new market for purchasing defaulted loans. Since this initial flurry of activity, the economy has slowly recovered and the topic largely disappeared from the public eye. However, the legal wake continues to reverberate in the foreclosure litigation arena, with mortgage holders continuing to search for additional sources of recovery on loans secured by underwater homes.

January 20, 2017 • Ethics, Legal Malpractice, Professional Liability Matters

Does Client Know You’re Uninsured?

Between required law school classes and the Multistate Professional Responsibility Examination, attorneys are given considerable training on the rules of professional conduct before starting a career. Attorneys get further refreshers on the rules when reviewing potential clients and the occasional issues that arise during representation. But how many attorneys review the rules of professional conduct that apply to the specific jurisdictions in which they practice? Considering the heavy overlap between the different states and model rules of professional conduct, doing so may seem like a waste of time. It isn’t. Attorneys who fail to review their particular states’ rules do so at their own risk as distinctive rules do exist in many states.

January 3, 2017 • General, Professional Liability Matters

A Recap of 2016

There was considerable activity within the professional liability community in 2016. As a result, there was much to discuss. As we’ve done in past years, we’ve taken a close look at what was most interesting to you in 2016 with an eye toward maintaining your interest this year. Like 2015, thousands of you read about the risk management issues facing a response to legal audit letters. You were also very interested in the FLSA and FMLA. Many readers were interested in the tricky concept of pleading the Fifth Amendment in the civil context. Next, the most read post focused on how an eroding malpractice policy could spur litigation. Finally, in terms of the most read posts, you were interested in when a malpractice claim arises.