Professional Liability Matters

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August 19, 2015 • Ethics, Law Practice Management, Legal Malpractice, Professional Liability Matters

Fired but Still on the Hook

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.

August 18, 2015 • Ethics, Law Practice Management, Professional Liability Matters

Conflict Check for Would-be Clients?

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.

August 13, 2015 • Ethics, Professional Liability Matters

A Caution against Threats of Disciplinary Action

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.

August 12, 2015 • Ethics, Legal Malpractice, Professional Liability Matters

In-House Counsel Fired for Compliance with Ethical Rules

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.

August 11, 2015 • Ethics, Legal Malpractice, Professional Liability Matters

Lessons from a Bravo Star’s Malpractice Suit

Clients will usually say “Bravo!” when you exhibit diligence, zealous advocacy, and candor in your legal representation. But what happens when a client makes a misrepresentation to you or engages in criminal or fraudulent conduct during the course of your representation? What are your duties with regard to assessing the validity of a client’s statements, or the legality of their actions? A recent legal malpractice lawsuit filed by imprisoned “Real Housewives of New Jersey” star Teresa Giudice has thrown these questions into the limelight.

August 6, 2015 • Ethics, Law Practice Management, Professional Liability Matters

Client Communication: What’s Enough/Too Much?

The duty to communicate is essential to every aspect of the fiduciary duty a lawyer owes to the client. Proper communication ensures that we are identifying and serving our clients’ interests. It’s possible today to be technically “available” to clients 24-7. But how much availability is required, and where is the line? That’s the subject of a recent ethics case against a Texas attorney, resulting in sanctions for unreasonably ignoring a client.

August 5, 2015 • Law Practice Management, Legal Malpractice, Professional Liability Matters

Liability for Delegated Tasks

We’ve previously touched on the risks of delegation. Although most of the LPL cases we discuss involve an attorney’s own, direct negligence, an attorney may be responsible for delegating tasks to others. Can the delegating attorney avoid liability because the alleged negligence was committed by someone else? According to a recent South Carolina opinion, the answer is no.

July 29, 2015 • Ethics, Legal Malpractice, Professional Liability Matters

Ahoy! Attorney Sunk by File Transfer In Shipwreck Case

Much of our discussion at PLM revolves around duties to clients during the time of representation. However, your professional duties and ethical obligations to a client do not end when the engagement ceases. As illustrated by one recent swashbuckling tale, an attorney has a duty to provide a former client with that client’s file, and may not withhold these materials to leverage other benefits, regardless of the circumstances surrounding the end of the engagement.

July 28, 2015 • Cyber-Liability, Legal Malpractice, Professional Liability Matters

Attorneys: Don’t Hack Your Adversaries’ Files

Professionals look for ways to gain an edge over their competition. Taking extra time to prepare, investigate claims, and anticipate an adversary’s strategy can often mean the difference between success and failure. However, professionals must ensure that their attempts to gain a tactical advantage do not run afoul of ethics rules. When professionals cross the line, they not only jeopardize their clients’ interests, but also put themselves at risk of litigation or disciplinary action. Some lines are clearer than others. For example, one firm recently learned that it is improper to hack into an adversaries’ files to gain a strategic edge.