Statute of limitations laws are intended to protect defendants from stale and meritless claims. Moreover, these statutes pressure plaintiffs to institute supported causes of action while the evidence is ripe. Certainly, these statutes are an ally to the defense bar and can be a major obstacle for plaintiffs. A plaintiff asserting a professional malpractice claim may attempt to circumvent a time-bar defense through the continuous representation doctrine. The argument is that the continuing professional-client relationship delays the accrual of a claim. This theory was …
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Former Client May Sue Without Appealing Underlying Matter
Generally, a plaintiff has an obligation to mitigate her damages. In the context of a legal malpractice claim, the professional may argue that the plaintiff is obligated to cure the alleged harm by appealing the underlying issue. In the appropriate scenario, the defendant attorney may claim that the plaintiff had the last opportunity to avoid any damages but improperly filed a malpractice claim as opposed to appealing the underlying matter. Just how far must a plaintiff proceed with litigation before pointing a finger at former …
Continue ReadingDuties to Non-Clients: The Exception, Not the Rule
The standard malpractice claim pits former client against professional. In most scenarios, the client alleges that the professional’s conduct fell below the acceptable standard and/or below the expectations set forth in the engagement contract. On occasion, non-clients test the waters and sue professionals under various theories. However, the knee-jerk defense to claims from non-clients is usually lack of privity. Lack of privity is often a successful defense but there are exceptions to the general rule. Professionals must be aware of these exceptions and take into …
Continue ReadingProtect Your E-Filing Passwords
It wasn’t long ago when filing deadlines forced attorneys to rely on the speed and reliability of their process-server or messenger. How many filings were missed due to a flat tire or traffic? If the filing wasn’t stamped before the court closed at 4 PM, the filing could be considered late and the attorney left answering to the client. The dawn of electronic filing has changed this process. Many courts accept filing up to midnight of the due date and hand-delivery is no longer a …
Continue ReadingKnow When to Hold ‘Em, When to Close ‘Em
Although not nearly as satisfying, in many ways closing a file is just as important to a professional as opening one. How and when to close a file is a component of best practices. Most professionals follow some document retention protocol (and if you don’t, you should). But an interesting wrinkle arises when it’s not entirely clear when the engagement has come to an end. Some cases are withdrawn, some clients sign an engagement letter but do not pursue the claim, some clients decide to …
Continue ReadingThe Lying Client: An Attorney’s Obligations
ABA Model Rule of Professional Conduct 3.3, Candor Toward the Tribunal, mandates that an attorney may not knowingly offer false evidence. That’s the easy part: don’t lie. Things get a bit more complicated when it is the client engaged in knowing misrepresentations or deceit. In circumstances when an attorney is aware of a client’s lies, the attorney “shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.” But what are “reasonable remedial measures”? How soon must the conduct be reported and how? …
Continue ReadingFormer Lawyer for Rosa Parks Targeted in New Suit
A New York auction house has targeted Rosa Parks’ former lawyer, claiming that he mishandled her estate. According to the claim, the attorney caused the auction house millions in damages based on his alleged misrepresentations that Parks’ heirs had authorized the estate to proceed to auction. In particular, Parks’ reported $10 million estate included her Congressional Gold Medal and a postcard from Martin Luther King, Jr. Instead of proceeding to an individualized private auction as originally contemplated, the auction house alleges that the attorney’s gaff …
Continue ReadingMalpractice for Failure to Predict Change in the Law?
Rules are made to be broken, right? The same can be said about legal precedent, which may change over time. Although it’s uncommon for courts to ignore precedent, it does happen from time to time whether it be outdated, no longer applicable or due to the political/philosophical makeup of the presiding judiciary. Unanticipated, new law may create unique problems for attorneys. When the law is clear, an attorney’s obligations are clear. The attorney needs to either distinguish it or apply that law to the facts …
Continue ReadingDon’t Judge a Client by its Cover
Clients come in all shapes and styles, backgrounds and personalities. Some are needy; they are less knowledgeable and require handholding, they have a litany of questions and need more attention. Others are more sophisticated, understand the subject matter, have been there before and therefore ask less from you. The sophisticated client is a treat because she understands general concepts and allows you to focus elsewhere, right? Nope! The professional that takes her client lightly, hits the autopilot switch and relaxes her attention is asking for …
Continue ReadingThe Continuous Treatment Doctrine: A Doctor’s Nightmare
Every jurisdiction maintains a series of statute of limitations which set the amount of time a litigant has to initiate a claim before it expires. Some of the purposes of these statutes is to prompt reasonable diligence by the plaintiff to initiate claims and to prevent exposure for long dormant claims. Attorneys are familiar with the various exceptions that act to toll the limitations period, and establishing when the statutory period begins to run can sometimes lead to protracted litigation in its own right. Here, …
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