Professional Liability Matters

LATEST INSIGHTS

May 14, 2014 • Legal Malpractice, Professional Liability Matters, Risk Management

The “Settle and Sue” Method

They say that a truly good settlement is one that leaves everyone unhappy. There is plenty of truth here. But some settling parties take their unhappiness to a new level by filing a malpractice claim. Whether it be buyer’s remorse, doubt, or the opportunity to reconsider the settlement without the distraction of active litigation, some settling parties determine that they took too little or gave too much away. This may be a part of the uncertainty of compromise and often dissipates over time without much fanfare. But sometimes it does not; some settling parties point fingers at their former counsel claiming that bad advice led to an unjust settlement. The result can be the “settle and sue” malpractice claim, which applies differently from jurisdiction to jurisdiction.

May 13, 2014 • Engagement Letters, Professional Liability Matters

Faulty Engagement Letters Is #1 Cause of Claims

Seriously; you still don’t require that your clients execute an engagement letter? Apparently not. Professional Liability Matters routinely warns of the risks of representing a client without a clear engagement letter. In addition to laying out the objectives of the representation, well-crafted engagement letters help to reduce the likelihood of claims from dissatisfied clients. It would seem obvious, then, that attorneys would require clients to sign an engagement letter as a prerequisite to any attorney-client relationship. However, in a recent national legal malpractice conference held by the ABA, industry experts cite faulty or missing engagement letters as the most prolific cause of legal malpractice claims.

May 8, 2014 • Professional Liability Matters, Risk Management

Case Closed! Tips For Properly Closing a File

All professionals should maintain a consistent and carefully considered practice for closing files. Don’t rush to send the file to the shredder. Don’t push the boxes into a dusty warehouse. Rather, best practices mandate that all professionals, notably attorneys, engage in a series of important tasks when closing a file. Poor practices at the end of an assignment can lead to conflicts issues, document retention woes, client confusion or worse. Take for example the attorney in Maryland who was recently disbarred for conduct that could have been prevented with a proper close file checklist.

May 6, 2014 • Ethics, Legal Malpractice, Professional Liability Matters, Technology

Legal Zoom’s Business Model Prompts Ethical Debate

As the legal industry evolves, attorneys and would-be clients continue to experiment with alternatives to the standard law firm model. Some websites offer do-it-yourself standardized legal forms for basic legal needs such as will preparation, lease agreements or corporate formation documents. You’ve probably seen the commercials for Legal Zoom, Nolo, RocketLawyer and others. But, what is actually for sale? Has an attorney drafted these documents? If so, are these attorneys subject to professional malpractice exposure? If not, are these sites engaged in the unauthorized practice of law? These are hot issues in many states. Notably, according to a recent opinion out of South Carolina, Legal Zoom’s practices are consistent with the rules of professional conduct.

May 1, 2014 • Experts, Professional Liability Matters, Trial Tactics

Work-Product Doctrine Tested in Pennsylvania

Attorneys must communicate with expert witnesses to define the scope of the engagement, to prepare for trial, and to evaluate the evidence. Depending on the jurisdiction, some or all of that communication may be protected from disclosure pursuant to the attorney work-product doctrine. In Barrick v. Holy Spirit Hospital, the Pennsylvania Supreme Court considered the extent of the privilege in this context and reached a bright-line rule in favor of non-disclosure.

April 29, 2014 • Ethics, Professional Liability Matters

A Case of Black Robe Disease

Judges are bound by a code of conduct in the jurisdiction where the judge sits. Like the code governing attorneys, judicial codes vary somewhat from state to state. There are ramifications for judges who break this code, some can be very severe. In the more common scenario, a judge may face criticism for conduct that may be perceived as an inappropriate use of the bench also known as “black robe disease,” when a judge lets her authority over the court go to her head. Take for example the Florida judge who was recently investigated for allegedly using the courtroom to publicize his political views.

April 23, 2014 • Advertising, Ethics, Professional Liability Matters

Beware of the Referral Website

Professionals love a good referral source. Some attorneys and others use referral service-providers to reach a wider audience via the internet. But these services are not without risk. A recent Indiana decision demonstrates the ethical pitfalls inherent in referral websites. In this decision, an attorney was held accountable for an improper advertising model utilized by the referral website.

April 22, 2014 • Ethics, Professional Liability Matters

NCAA Sports Probe Triggers Ethics Complaint

The NCAA has established strict rules to regulate the activities of student-athlete representatives, aka “boosters.” If a booster violates collegiate rules, the NCAA can take action to hold an athlete ineligible from competition or impose other sanctions upon the school. In a recent unexpected development, the NCAA was put on the defensive when its investigation of the University of Miami football program revealed that one of its own attorneys may have violated Florida’s ethics rules.

April 17, 2014 • Legal Malpractice, Professional Liability Matters, Risk Management

Alternative Litigation Financing Sparks Malpractice Claim

A modern-day offshoot of the contingency fee arrangement is “alternative litigation financing.” Also known as third-party litigation financing, A.L.F. is the practice of making cash advances, usually to a litigant, to be repaid from the proceeds from the litigation. There is plenty of room for debate the pros and cons of this developing trend. Supporters may argue that this practice allows an injured plaintiff to take an “advance” on an anticipated recovery to address financial hardship before reaching a settlement or verdict. This is particularly useful for injured plaintiffs who cannot return to work. But attorneys associated with litigation financing may be susceptible to claims when something goes awry.