Category Archives: Legal Malpractice

Family Feud leads to Privity Lesson

A somewhat bizarre family feud presents an interesting evaluation of the general requirement of privity in order to maintain a legal malpractice claim. Consider the circumstances of when an attorney is appointed by the court to administer an estate. Who is the client? A Kansas appellate court examined this situation in Schroeder v. Brewer, 2017 Kan. App. Unpub. LEXIS 101 (Kan. Ct. App. Feb. 17, 2017) which addresses whether an attorney may be held liable for legal malpractice while representing an Estate “against” the beneficiaries of the estate.

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Blown Deadline = $850,000

Ugh…deadlines. Many classes of professionals are bound by deadlines. Attorneys are no different. Pleading requirements, discovery responses, motions, hearings and other proceedings must all be calendared to ensure that an attorney meets all deadlines. In fact, an easy path to malpractice is to miss a deadline. A recent New Jersey verdict highlights the importance of complying with deadlines and maintaining clear and open communication.

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Does Client Know You’re Uninsured?

Between required law school classes and the Multistate Professional Responsibility Examination, attorneys are given considerable training on the rules of professional conduct before starting a career. Attorneys get further refreshers on the rules when reviewing potential clients and the occasional issues that arise during representation. But how many attorneys review the rules of professional conduct that apply to the specific jurisdictions in which they practice? Considering the heavy overlap between the different states and model rules of professional conduct, doing so may seem like a waste of time. It isn't. Attorneys who fail to review their particular states’ rules do so at their own risk as distinctive rules do exist in many states.

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No Privity? No Problem

In New York, privity is required in order to maintain a legal malpractice claim. In other words, the claim must be client v. former attorney “absent special circumstances.” But under what special circumstances would a court be inclined to find legal malpractice in a non-privity situation? A case this past week shed some light on what one of those situations may look like.

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Breach of Contract or Tort? Does it Matter?

The professional-client relationship often begins with a retainer agreement/engagement letter: a contract that defines the terms and scope of professional services. Accordingly, when a client files suit alleging professional malpractice, the claims will generally sound in both contract and tort. Whether a claim is asserted as a breach of contract or tort can have important implications with regard to the statute of limitations and other potential defenses. For instance, depending on the state, a tort claim may be time-barred where a breach of contract claim is not.

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When Does the Clock Start?

Determining the length of the statute of limitations is easy but the trick often comes in figuring out when the statutory period begins running. In the legal malpractice context, this may often present the difference between dismissal or protracted litigation. A recent New York Supreme Court decision has shed some further light on why it remains important for all parties to know the applicable statute and accrual date, and highlights yet another situation in which a Court will employ a jurisdictional accrual rule to bar a claim.

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Frivolous Lawsuit Leads to Serious Damages

At one point or another, many attorneys will encounter a lawsuit they believe to be potentially frivolous. These claims often lead to frustration for the defending attorney and client who may face two difficult alternatives: (a) settle the case in order to avoid defense costs or (b) expend time and money in defending a meritless claim. A recent case out of Pennsylvania may give some hope to those forced to defend weak claims and might give pause to anyone considering such a suit in the future.

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What’s Reasonable Attorney Review?

Although some law firms are slow to embrace new technologies, debt collection firms appear to be the exception to this general rule. Most of these firms use sophisticated computer software to retrieve information from their creditor-clients, and use the program to automatically populates legal forms. This process saves a significant amount of time for attorneys in a high-volume field, allowing them to file hundreds of basic pleadings in a single day. However, this process has come under increasing scrutiny from both debtors’ rights firms and the government.

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Malpractice for a Client’s Failure to Report

Although some law schools are notorious for offering elective courses like “space law” that are of limited practical use to most attorneys, there is still a set of core classes that are invariably recommended. Courses such as tax law and corporate law often fall into this group, as most lawyers will have to consider tax repercussions or the structure of a company at some point in their careers, regardless of their practice area. One big firm is now learning that despite the dearth of classes in insurance law, it is a subject that every attorney should become familiar with.

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Professional Plagiarism Leads to Copyright Claim

Clients expect professionals to work diligently on their behalf, but also want them to achieve results in a cost-effective manner. Experienced professionals are able to accomplish both ends by drawing from their knowledge base and past work product, rather than attempting to reinvent the wheel each time they undertake a new task. For instance, in the legal profession, it often behooves attorneys to begin legal research on novel issues within their firm to see if others have already addressed the issue and have analysis on hand. But attorneys may at times also find it useful to look to publicly-accessible briefs and filings from outside firms to see how others have addressed the topic. Relying on such third-party work-product, however, could be a recipe for professional liability.

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