Fee Shifting in Malpractice Cases

The concept of fee shifting in the field of legal malpractice may not be well known or understood if you don’t practice in New Jersey.  That is because New Jersey is one of the only states to employ this unique fee structure.  The so-called “Saffer rule” was created by the NJ Supreme Court decision in Saffer v. Willoughby, in which the Court held that clients may recover as consequential damages the legal expenses and attorneys’ fees they incur in prosecuting a malpractice claim …

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High Times: Ethics of Marijuana Advice

Marijuana laws in the US are rapidly changing. Colorado, Oregon, and Washington have legalized marijuana outright for recreational use. Twenty more states and the District of Columbia have legalized the use of marijuana for medicinal purposes.  Now, the Pennsylvania legislature has proposed a new law that would permit limited medical marijuana use.  Despite these changes at the state level, marijuana is still classified under federal law as a Schedule I drug that has no accepted medical use. Inconsistencies between state and federal laws create potential …

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For Whom the Claim Tolls

Knowing the applicable statute of limitations for your case is critical for every attorney.  In the world of legal malpractice, there are many variables in play: the jurisdiction, the facts, tolling and the extent of the underlying representation. Therefore, it’s important for attorneys to know the various nuances of the statute of limitations doctrine in their jurisdiction.  For this reason, attorneys will want to take note of a recent decision out of the South Carolina Supreme Court that overruled precedent on when a legal malpractice …

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Fired but Still on the Hook

Most attorneys don’t end their careers in the same place they started. Rather, many attorneys make a move or two which may require the transfer of files and clients. When an attorney transfers a file to a new firm, the prior firm must maintain certain ethical obligations.  Model RPC 1.16 provides that a lawyer must provide notice when terminating a representation and take steps to the extent reasonably practicable to protect a client’s interests.  Therefore, professional obligations are not always terminated as soon as the …

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In-House Counsel Fired for Compliance with Ethical Rules

Ever hear the joke about the in-house attorney who was fired for complying with the Rules of Professional Conduct? It’s no joke. Model Rule 1.13(b) provides that if in-house counsel knows that an employee is violating a law that may be imputed to the employer, the lawyer must proceed in the best interest of the employer. But, complying with that rule may result in backlash for the attorney. Take for example the following case, in which the Utah Supreme Court considered whether the rule creates …

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Lessons from a Bravo Star’s Malpractice Suit

Clients will usually say “Bravo!” when you exhibit diligence, zealous advocacy, and candor in your legal representation.  But what happens when a client makes a misrepresentation to you or engages in criminal or fraudulent conduct during the course of your representation?  What are your duties with regard to assessing the validity of a client’s statements, or the legality of their actions?  A recent legal malpractice lawsuit filed by imprisoned “Real Housewives of New Jersey” star Teresa Giudice has thrown these questions into the limelight.

According …

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Liability for Delegated Tasks

We’ve previously touched on the risks of delegation. Although most of the LPL cases we discuss involve an attorney’s own, direct negligence, an attorney may be responsible for delegating tasks to others.  Can the delegating attorney avoid liability because the alleged negligence was committed by someone else? According to a recent South Carolina opinion, the answer is no.

In Johnson v. Amber, plaintiff alleged that her attorney breached his duty of care by failing to discover the house she purchased had been sold at …

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Ahoy! Attorney Sunk by File Transfer In Shipwreck Case

Much of our discussion at PLM revolves around duties to clients during the time of representation.  However, your professional duties and ethical obligations to a client do not end when the engagement ceases. As illustrated by one recent swashbuckling tale, an attorney has a duty to provide a former client with that client’s file, and may not withhold these materials to leverage other benefits, regardless of the circumstances surrounding the end of the engagement.

The client discovered a shipwreck filled with gold, and its …

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Attorneys: Don’t Hack Your Adversaries’ Files

Professionals look for ways to gain an edge over their competition.  Taking extra time to prepare, investigate claims, and anticipate an adversary’s strategy can often mean the difference between success and failure.  However, professionals must ensure that their attempts to gain a tactical advantage do not run afoul of ethics rules.  When professionals cross the line, they not only jeopardize their clients’ interests, but also put themselves at risk of litigation or disciplinary action. Some lines are clearer than others. For example, one firm recently …

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The Ethical Implications of Legal Ghostwriting

Ghostwriting on behalf of pro se litigants has sparked an interesting debate.  Although unrepresented parties may be at a bit of a disadvantage when presenting their position to a represented adversary, some may take advantage of an attorney lending assistance behind the scenes.  Legal ghostwriting is one form of “limited-scope representation”, or the unbundling of legal services, a practice in which a client retains an attorney for limited tasks as opposed to the traditional handling of all aspects of a matter. Rules regarding this …

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