Author Archives: Eric S. Cohen

Sign, Sign, Everywhere Assign

Professionals owe a duty to their clients to satisfy the standard of care commonly exhibited by others within their profession. Consequently, privity is often required to maintain a malpractice claim; i.e. it is often the client with the exclusive right to sue her professional. This narrow application of standing assumes, however, that clients have retained their exclusive right to sue. In fact, as with many torts, clients may freely assign their right to file malpractice actions to third parties, even those that are adverse to the client in the underlying litigation.

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Insurance Applications + Lies = Coverage Denied

Insurers are entitled to make decisions as to the professionals they will insure and the terms of the relationship. To that end, insurers expend considerable energy evaluating risks and assessing the likelihood of a potential claim. The scope of underwriting and the key metrics may vary from carrier to carrier but without exception each insurer relies upon some form of insurance application. Insurers are entitled to rely upon the representations of their applicants and, when faced with a misrepresentation in an insurance application, have the right to deny coverage. Accordingly, we’ve cited previous examples of applicants caught in a lie in their insurance applications. Don’t do it. Consider another recent example.

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Initial Consult Fee ≠ A/C Relationship

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.

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