Legal Developments and Risk Management Tips Impacting the Professional Liability Community.
Many professionals are proud of their work-product, their reputation, and their capabilities. Along those lines, many professionals are sensitive of their public image, including their online presence. Therefore, when others post critical reviews of a professional on social media, it may be tempting to respond in a defensive manner. But, be careful.
As a general matter, the Rules of Professional Conduct prohibit lawyers from sharing fees with non-attorneys. However, there are certain exceptions to that rule. Rule 5.4 states that “a lawyer or law firm may include non-lawyer employees in a compensation or retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement.” A recent case out of Pennsylvania describes how a non-lawyer attempted to put this exception into action, albeit unsuccessfully.
It’s not uncommon to see allegations of ethical breaches incorporated into malpractice claims. Former clients may argue that their attorney’s failure to comply with the rules of professional conduct evidences negligence. Often, however, that’s insufficient to sustain a claim. An ethical breach may be considered by the fact-finder but, without more, is unlikely to support a claim. Consider the recent decision from the New York State Appellate Division which continued a trend of dismissing legal malpractice claims based purely on ethical violations.
Engagement letters are a must. In case that wasn’t clear enough: all professionals should document the scope of the client relationship for each and every engagement. New clients and long-standing clients alike, engagement letters are a must. It’s a key aspect of best practices that is often overlooked. “My client and I have developed a trusting, professional relationship over the years and therefore it is entirely unnecessary to propose an engagement letter.” It may feel a bit like a prenuptial agreement. Why plan for the worst when things are going so well?
The particular nuances of each state’s affidavit of merit rule can be difficult to navigate. Since affidavits of merit (AOM) are so critical to malpractice actions, we do our best here at Professional Liability Matters to keep you informed of the particular differences among states and various defenses that can be raised in a malpractice suit requiring an AOM. Last week we blogged about a particular exception to the AOM rule in New Jersey, which you can check out here. This week we turn our attention to another New Jersey case, in which the court again finds an exception, but under different circumstances, when it comes to the AOM requirement.
Nobody wants to be named as a defendant in a lawsuit. Litigation is expensive, time-consuming, upsetting, and often intimidating for clients. Being dragged into a suit is even more frustrating when the defendant knows the claims are entirely without merit. Defendants who are the victim of frivolous litigation are not without recourse, however. Where the underlying lawsuit is unwarranted, without evidentiary support, or presented for an improper purpose, such as harassment or delay, defendants may have the opportunity to seek damages against the plaintiff and the lawyers who brought the claim.
In the face of corporate fraud and deceit, it is not uncommon for the defrauded entity to turn on its professionals. The inevitable issue becomes who is responsible for overseeing the enterprise: the business entity or the independent professional? Perhaps both. The in pari delicto affirmative defense can be an effective tool for professionals to shield themselves from liability arising from alleged wrongdoing of their underlying client. For example, we previously posted a victory for an accountant who successfully asserted the defense here. But, how and when to assert the defense is tricky as evidenced by a recent Pennsylvania District Court decision.
Your friends at Professional Liability Matters often focus on interpretation of Affidavit of Merit (“AOM”) requirements. As our handy table shows, each state has its own rules as to AOM requirements and other details regarding substance and form. These rules are of critical importance to many malpractice claims. Most states require an AOM from a professional within the same field certifying that the malpractice case has merit. This is a necessary gateway function so that litigants cannot sue professionals without any justification. Implicit in this requirement is that the typical fact-finder may not understand the appropriate standard of care, and therefore must rely upon professionals within the field. However, in some cases, an expert opinion may not be necessary to understand how the standard of care was breached. In some states this qualifies as an exception to the AOM requirement. Take for example the following case out of New Jersey which applied the common knowledge exception to the AOM requirement.
Many professionals work on a contingency fee basis. If they achieve a favorable result for their client, they receive a percentage of the profit; no win, no fee. The basic arrangement assumes that the professional will continue to represent the client throughout the duration of the matter. But what are a professional’s rights when a client decides to hire new counsel in the middle of a case?
Many law firms employ law clerks, or hire summer associates. The former are often current law students, while the latter are almost always current law students. There are benefits to both the firm and the student in these situations; the student gains real-world legal experience and an opportunity to work alongside experienced attorneys, while the firm gets capable and often short-term employees. Many firms use these experiences as a way of determining future hiring, as a sort of “trial run” used to assess whether any of the clerks or associate could fit in well at the firm after graduating. It’s a practice that is as widespread as it is common.