Professional Liability Matters

LATEST INSIGHTS

November 12, 2014 • Legal Malpractice, Professional Liability Matters, Risk Management

S.O.L.: The Continuous Representation Doctrine

Statute of limitations laws are intended to protect defendants from stale and meritless claims. Moreover, these statutes pressure plaintiffs to institute supported causes of action while the evidence is ripe. Certainly, these statutes are an ally to the defense bar and can be a major obstacle for plaintiffs. A plaintiff asserting a professional malpractice claim may attempt to circumvent a time-bar defense through the continuous representation doctrine. The argument is that the continuing professional-client relationship delays the accrual of a claim. This theory was recently asserted successfully in New York against an attorney.

November 11, 2014 • Legal Malpractice, Professional Liability Matters

Former Client May Sue Without Appealing Underlying Matter

Generally, a plaintiff has an obligation to mitigate her damages. In the context of a legal malpractice claim, the professional may argue that the plaintiff is obligated to cure the alleged harm by appealing the underlying issue. In the appropriate scenario, the defendant attorney may claim that the plaintiff had the last opportunity to avoid any damages but improperly filed a malpractice claim as opposed to appealing the underlying matter. Just how far must a plaintiff proceed with litigation before pointing a finger at former counsel? This issue was recently addressed by the to the New York Court of Appeals in a case of first impression.

November 4, 2014 • Engagement Letters, Legal Malpractice, Professional Liability Matters, Risk Management

Duties to Non-Clients: The Exception, Not the Rule

The standard malpractice claim pits former client against professional. In most scenarios, the client alleges that the professional’s conduct fell below the acceptable standard and/or below the expectations set forth in the engagement contract. On occasion, non-clients test the waters and sue professionals under various theories. However, the knee-jerk defense to claims from non-clients is usually lack of privity. Lack of privity is often a successful defense but there are exceptions to the general rule. Professionals must be aware of these exceptions and take into account non-clients who may have standing to assert a malpractice claim.

October 30, 2014 • Legal Malpractice, Professional Liability Matters, Technology

Protect Your E-Filing Passwords

It wasn’t long ago when filing deadlines forced attorneys to rely on the speed and reliability of their process-server or messenger. How many filings were missed due to a flat tire or traffic? If the filing wasn’t stamped before the court closed at 4 PM, the filing could be considered late and the attorney left answering to the client. The dawn of electronic filing has changed this process. Many courts accept filing up to midnight of the due date and hand-delivery is no longer a requirement. But how many of you have considered some of the risks of e-filing? How about the importance of monitoring your filings and safeguarding your e-filing password? Consider the lesson taught to an attorney subject to discipline in New York for allowing non-attorneys to use his e-filing information without proper oversight.

October 23, 2014 • Experts, Professional Liability Matters

Experts are Like Produce: Buy Local

A key issue in most professional malpractice cases is whether the professional complied with the applicable standard of care. Given that this standard is defined by individual professional communities, an expert is almost always needed to assist the fact-finder. Not just any expert will do. Rather, an ideal expert must be in a position to opine whether the questionable conduct complied with the standard upheld in the defendant’s jurisdiction. This issue was recently raised in Delaware when an expert’s opinion was ignored because he lacked an understanding of the locale at issue.

October 21, 2014 • Legal Malpractice, Professional Liability Matters, Risk Management

Know When to Hold ‘Em, When to Close ‘Em

Although not nearly as satisfying, in many ways closing a file is just as important to a professional as opening one. How and when to close a file is a component of best practices. Most professionals follow some document retention protocol (and if you don’t, you should). But an interesting wrinkle arises when it’s not entirely clear when the engagement has come to an end. Some cases are withdrawn, some clients sign an engagement letter but do not pursue the claim, some clients decide to retain new counsel without documenting the decision. To take into account these uncertainties, professionals must implement safeguards to monitor each client relationship and, when necessary, to document that the professional relationship has ended. By keeping files up-to-date, both old and new, professionals can help to avoid many hazards and ethical dilemmas.