Legal Developments and Risk Management Tips Impacting the Professional Liability Community.
Conflicts of interest are always a potential pitfall in the realm of attorney malpractice. The issue becomes even more complicated when tech-based clients enter the scene. What happens when two tech clients who are not directly adverse, but instead are potential competitors, both approach you for assistance?
Knowing the applicable statute of limitations for your case is critical for every attorney. In the world of legal malpractice, there are many variables in play: the jurisdiction, the facts, tolling and the extent of the underlying representation. Therefore, it’s important for attorneys to know the various nuances of the statute of limitations doctrine in their jurisdiction. For this reason, attorneys will want to take note of a recent decision out of the South Carolina Supreme Court that overruled precedent on when a legal malpractice claim begins to run.
Reportedly, more than 1,700,000 workers are injured annually as a result of workplace violence. We were recently reminded that disgruntled employees can be deadly. On August 26th, Vester Lee Flanagan, II murdered two of his former colleagues during a live news segment before taking his own life. This tragedy provides an opportune backdrop for employers to reassess preventative measures in place and disaster readiness in order to minimize the likelihood and impact of violence in the workplace.
We recently addressed the ethical implications of the initial, would-be client interview. As we discussed, the lawyer owes certain duties to a potential client and those duties vary from those owed to former and current clients. Whether an attorney-client relationship is actually formed can dictate whether a lawyer has a conflict of interest down the road when representing a new client. A recent decision out of the North Dakota Supreme court illustrates this concept.
Many of us are perfectly comfortable publishing to an anonymous, online audience what we ate for dinner, our political views, relationship status, the argument we had with a cashier, or other personal details. This is not uncommon on various forms of social networking. But, when it comes to professional relationships, there are rules to follow. As a result, today’s professionals must pause before airing dirty laundry concerning a client or former client. Doing so risks violating ethical duties to former clients of confidentiality and can impair reputations.
Starting up a successful professional practice requires ingenuity, business acumen, and a passion for the profession, but it also requires cash. In order to overcome financial barriers, some entrepreneurial professionals have looked to crowdfunding as an alternative method for raising capital. By utilizing social media and dedicated crowdfunding websites, professionals are now in a stronger position than ever to pitch their brand and solicit donations from large numbers of individuals in the general public. Crowdfunding offers the promise of a quick source of revenue, but may also implicate possible ethics concerns that could prove costly to professionals in the long term.
Most attorneys don’t end their careers in the same place they started. Rather, many attorneys make a move or two which may require the transfer of files and clients. When an attorney transfers a file to a new firm, the prior firm must maintain certain ethical obligations. Model RPC 1.16 provides that a lawyer must provide notice when terminating a representation and take steps to the extent reasonably practicable to protect a client’s interests. Therefore, professional obligations are not always terminated as soon as the client ends the relationship. The following example demonstrates how failure to timely withdraw from a case after the attorney-client relationship ended resulted in a claim of malpractice.
Attorneys put food on the table by converting would-be clients into actual clients. However, the astute attorney knows which engagements are not worth pursuing and when to decline representation. The careful attorney knows that even the initial client interview will trigger ethical obligations. To be clear, an attorney’s ethical responsibilities kick even before there is an attorney-client relationship. While most attorneys probably are aware of this general principle, it’s less likely that most engage in best practices during the client intake process.
The judicial process is adversarial by definition. That doesn’t necessarily mean that every case is contentious but many are. In these cases, particularly when emotions are involved, attorneys and their clients often feel strongly that they have been wronged and search for opportunities to be vindicated. When an attorney believes that the other side is asserting a frivolous claim or acting with an improper purpose it may be tempting to raise the prospect of filing a disciplinary action against the opposing lawyer. However, attorneys must tread cautiously when threatening disciplinary action in litigation. Doing so could violate ethics rules and potentially result in disciplinary action against the attorney making the claim.
Ever hear the joke about the in-house attorney who was fired for complying with the Rules of Professional Conduct? It’s no joke. Model Rule 1.13(b) provides that if in-house counsel knows that an employee is violating a law that may be imputed to the employer, the lawyer must proceed in the best interest of the employer. But, complying with that rule may result in backlash for the attorney. Take for example the following case, in which the Utah Supreme Court considered whether the rule creates a public policy exception to at-will employment to prevent companies from terminating in-house counsel for reporting illegal activity to management.