Category Archives: Legal Malpractice

The Garden State: Malpractice Fee Shifting in NJ

New Jersey is known for its beaches and its tomatoes. In the malpractice community, New Jersey is also known for its unique rules on fee shifting. New Jersey allows successful litigants in attorney malpractice suits to recover as consequential damages the legal expenses and attorneys’ fees they incur in prosecuting the claim. We previously reported on the case of Innes v. Marzano-Lesnevich, pending before the New Jersey Supreme Court that could potentially expand the rules on fee shifting in malpractice cases. Well, the New Jersey Supreme Court has spoken and any attorney practicing in New Jersey should be aware of the outcome.

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Liability for Hacked Emails?

Professionals depend on third-party email services to operate their business. As a result, professionals may assume that the vendor is safeguarding their electronic information and therefore the professional is not exposed. False. Consider an attorney sued recently for malpractice arising from an e-mail hacking scam.

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Guilty by Law Office Association

It’s not uncommon for small or solo attorneys to join together with others to share in operating and overhead costs of running a law firm. Attorneys can sometimes share office space, personnel and equipment yet run completely different practices independent of each other. However, what happens when one attorney is sued? Can any of the other attorneys also be held liable? Of course not, right? Well, according to a decision out of Tennessee it’s not entirely out of the question.

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Representation Could Go Farther Than You Think  

Hired for A but sued for Z? It may be a more common problem than you think. In overturning a lower court’s decision granting summary judgment, the Appellate Division of the New Jersey Superior Court has added yet more fuel to the fire in the ever-evolving debate as to the scope of representation. In a recent decision, an appellate court held that an attorney tasked with a seemingly simple and defined engagement, may actually be on the hook for much more. This serves as an important reminder to effectively communicate with the client to ensure there is a consensus as to the scope and limits of the engagement.

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Spoliation Examined in LPL Context

It is a risk management necessity that professionals document their files appropriately and confirm conversations in writing. A recent NY decision goes further, and suggests that it may be wise to save original documents to reduce the likelihood of a spoliation argument. In that decision, the Appellate Division, Second Department of New York considered whether a former client was entitled to evaluate an original document to determine whether her fingerprints were on a settlement offer.

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Fee Dispute Arises from Largest Med-Mal Verdict in CT

A law firm in Connecticut recently recovered the largest med-mal verdict ever in the state only to be sued by their client for malpractice. How does that happen? We’ll tell you. Plaintiffs retained a well-known Connecticut law firm (“Firm”) to represent them in a med-mal claim alleging that Defendant Doctor (“Dr.”) made significant errors during childbirth which caused Plaintiffs’ son being born with cerebral palsy. In 2011, a jury returned a verdict for Plaintiffs, and awarded $58 million – the largest medical malpractice verdict in Connecticut state history. Following verdict, the parties settled for $25 million.

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Coverage Denied for Attorney Mixing Legal and Business Advice

Lawyers wear many hats; the key is not to wear them all simultaneously. Many lawyers are well versed in areas outside of the law and can be a source of non-legal knowledge for clients. However, lawyers need to be mindful when their services extend beyond the traditional landscape of legal advice. Mixing business interests and legal advice can easily get you in hot water if the transaction goes awry. Take for example the case of Burk & Reedy, LLP v. Am. Guarantee & Liab. Ins. Co., in which a professional liability insurer denied coverage for an attorney that was involved in both the legal and business aspects of a transaction.

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What’s Adverse? Conflicting Clients Considered

The Model Rules of Professional Conduct prevent lawyers from representing conflicting clients. A conflict of interest may arise when the representation of one client will be directly adverse to another client. Just how far the requirement of “directly adverse” may extend was recently addressed by the Massachusetts Supreme Court in an interesting case involving IP litigation. While one inventor retained Firm to represent him on screwless eyeglass hinges another inventor had already retained Firm to secure a related patent in the screwless eyeglass market. Read on to see who got screwed.

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Partner? Associate? Of Counsel? Does it Matter for Conflict Purposes?

Pursuant to ABA Model Rule 1.10, a single attorney’s conflict of interest may be imputed to the entire law firm. The Rule provides that while lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so under the Rules. It is not uncommon for lawyers to have different associations with a particular firm—for example the term “of counsel” is often used to designate a role different from the traditional partner or associate positions. This may beg the question what level of involvement must an attorney have in order to be “associated with” a particular firm for conflicts purposes. A recent case out of the U.S. District Court of New Jersey involving a “seconded” attorney addressed just this issue.

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Pro Bono Malpractice?

Pro bono activities are not unfamiliar to most attorneys. Many attorneys will volunteer their time with organizations that provide pro bono legal services to those who could not otherwise afford legal representation. Most jurisdictions permit volunteer attorneys to be on a list of counsel that the court may appoint when a party is in need of representation. Some states may even assign attorneys in good standing to a court appointed representation. What happens though when that court appointed attorney allegedly commits malpractice in the course of the pro bono representation? A recent case out of Illinois addressed this scenario in the context of a court appointed child representative.

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