Category Archives: Risk Management

Paralegal Power! Appropriate Delegation = Client Satisfaction

The practice of law is changing. In particular, as a result of modern technology, attorneys’ reliance upon support staff is not what it used to be. This has impacted the role of paralegals, members of a dwindling field. Indeed, according to the 2012 Survey of Law Firm Economics, the average number of paralegals per law firm has dipped by over 30%. However, paralegals still play an important role in a law firm. If utilized effectively, paralegals have proven to be invaluable players who provide a key service to clients.

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S.O.L.: The Continuous Representation Doctrine

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 recently asserted successfully in New York against an attorney.

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Duties 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 account non-clients who may have standing to assert a malpractice claim.

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Know 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 retain new counsel without documenting the decision. To take into account these uncertainties, professionals must implement safeguards to monitor each client relationship and, when necessary, to document that the professional relationship has ended. By keeping files up-to-date, both old and new, professionals can help to avoid many hazards and ethical dilemmas.

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Rethinking the Professional Apology

Professionals are only human. Even the most cautious professional is not immune from the occasional mistake. Whether the mistake gives rise to a claim of professional malpractice, however, will often depend not on the error that was made, but on what actions the professional took to resolve the error after it occurred. Professionals are generally reluctant to admit responsibility for a personal mistake. Traditional wisdom suggests that doing so would amount to an admission of guilt that could provide damaging evidence in a future lawsuit. However, recent studies suggest that in cases where malpractice is clear, owing up to a mistake early can actually be the best method to settling lawsuits, or avoiding them altogether.

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The 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, we focus on the “continuous treatment doctrine” against the backdrop of a particularly scary decision for the medical malpractice community.

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Well Documented Advice Defeats Malpractice Claim

The best is not always good enough. Clients sue their professionals, whether justified or not. So, while there is no way to eliminate malpractice exposure, there are plenty of steps to avoid or help to defend such a suit. One of the golden rules of risk management is to properly maintain a written record of communications with the client. In particular, documentation is especially important when the client and professional may disagree. A well-documented file will not prevent all lawsuits but, as exemplified in a recent New Jersey decision, may serve as a dispositive defense during litigation.

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Malpractice: Failure to Report Client’s Claim

There is no upside to failing to report a claim. You’ve been warned of the consequences facing professionals who take a wait and see approach or apply self-help measures before reporting. In some cases the professional may consider the claim meritless and therefore think that it doesn’t give rise to a “reportable” event. Other professionals, usually attorneys, may attempt to handle the claim on their own before notifying the carrier. In these scenarios, the carrier may elect to deny coverage and the insured is left to pay the bill. An interesting wrinkle to this theme may apply when the insured is represented by counsel before or during an event that may trigger coverage. What reporting responsibility falls on counsel?

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Overzealous Advocacy Leads to Sanctions

Attorneys have an obligation to provide zealous advocacy on behalf of their clients and to pursue a client’s interests within the bounds of the law. To this end, lawyers are expected to protect clients during discovery by properly counseling them in anticipation of depositions and objecting to requests that are truly improper without crossing the line. However, overzealous advocacy, which obstructs legitimate discovery requests, may draw judicial ire and potentially lead to disciplinary action. Consider the following example.

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Dropping the Problem Client

Professionals and their clients do not always see eye to eye. Whether there are disagreements over litigation strategy, conflicts in personality, or a client who refuses to pay, many professionals encounter a problem client at some time in their career. While professionals may be tempted to cut ties with these clients when the relationship turns sour, an ugly break-up can make matters worse and may invite a malpractice suit.

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