Attorney or Scrivener? LPL Claim Dismissed Due to Non-Representation Clause

A recent decision rendered by the New York Appellate Division, First Department, on October 17, 2019, held that the lower court properly dismissed a legal malpractice complaint on the ground that documentary evidence established there was no attorney-client relationship. In Seaman v Schulte Roth & Zabel LLP, 176 A.D.3d 538 (1st Dep’t 2019), the dispute centered on the enforceability of a “non-representation clause” disclaiming the existence of an attorney-client relationship and reaffirmed the importance of providing such clauses where an attorney seeks to limit …

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Limiting Malpractice through Scope of Engagement

A recent NY Appellate Division decision serves as another reminder of the importance of carefully defining the scope of engagement in an engagement letter. This is because, under New York law, an attorney may not be held liable for failing to act outside the scope of their retainer.

In Attallah v. Milbank, Tweed, Hadley & McCloy, LLP, 168 A.D.3d 1026 (App. Div. 2d Dep’t 2019) a client brought an action against a law firm alleging legal malpractice in a case where the client had …

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Don’t Be a Halfway Law Partner

It is not uncommon for attorneys to join forces to defray costs. This often means sharing office space, support staff, and equipment.  Some attorneys take this a step further, advertising themselves as a partnership even if their practices remain separate.  Such arrangements should be made with caution, however, as they may lead to vicarious liability among the so-called partners.

A New Jersey federal court recently addressed such a scenario for the first time, holding that the plaintiff in a malpractice case failed to support a …

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Pitfalls of Professional Posting

Professionals love to publicize success stories on the web.  Writing posts on recent victories is a valuable way of marketing a practice and generating new business.  In the case of professionals, however, success stories often entail details regarding clients, which could raise client confidentiality concerns.

Recently, the New Jersey Office of Attorney Ethics filed a complaint against an attorney who publicized information regarding his representation of a client in a discrimination suit.  The attorney wrote an article about a case in which he represented an …

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Liability for Failing to Prevent Cyber Risk

Cyber liability threats continue to pose a danger for companies and professionals.  In order to help mitigate the damages of cyber breaches, businesses are becoming increasingly reliant on third-party security vendors to provide cyber consulting and to manage their data security risks.  While prioritizing data security is an important step for firms to take to minimize their own exposure, it is not always possible to eliminate threats entirely.  And when breaches do occur, businesses and their customers may look to hold these third-party data security …

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To Retain or Refrain?  Legal Record Retention Requirements

Litigation generates a ton of paper – pleadings, motions, drafts, correspondence, legal research – and these materials do not simply vanish once your involvement with a case has ended.  What happens to all of this paper is an important question not only in terms of your legal obligations with regard to retention, but also for your bottom line.  The necessity of managing and storing records from closed cases adds to the cost of providing legal services. So what happens when a case closes or you …

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Friendly Reminder: Don’t Lie to Clients

Professional Liability Matters would have considerably less content to discuss but for professionals who break seemingly obvious rules. For example, some would think that it goes without saying that a professional can’t lie to clients. Yet, a recent New Jersey ethics decision is proof positive that professionals don’t always follow the rules, even the easy ones.

In the underlying dispute, an attorney represented a property management company on the wrong end of a $15,000 judgment.  During a television interview, a co-owner of the management company …

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The Ethics Bog of Professional Blogs

We love blogging! Blogs have become an increasingly important part of professional practice.  Writing blog posts allows professionals to increase their social media presence and keep clients informed about recent developments in their respective industries.  At the same time, blogs are an invaluable marketing tool that allows professionals to connect with potential clients and develop new business relationships in a less formal, and more interactive, medium than traditional print publications.  But, bloggers beware. While this new form of interaction can be highly beneficial, professionals should

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Application of the Innocent Insured Clause

Professional Liability Matters has repeatedly stressed the importance of accurate, timely and careful reporting of potential claims.  Whether it be during the application or renewal process or somewhere down the road, most insureds are contractually obligated to report threatened claims. This requires that the organization solicit responses from all professionals (which can be a logistics problem for larger organizations). Many firms submit a short questionnaire that must be answered by everyone.  But how is coverage implicated for the organization when one bad apple knowingly conceals …

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Dealing with the Problem Client

We’ve all been there. Inevitably, every professional encounters a client whose demeanor or attitude make the representation difficult. As a result, the professional may be tempted to ignore the situation and limit contact with these clients.  But, that would be a mistake.  Pursuant to a recent ethics ruling in Matter of Azar, DRB 13-041, the New Jersey Disciplinary Review Board determined that providing the cold shoulder to problem clients warranted disciplinary action.

In Azar, the Board evaluated three ethics grievances against an attorney.  In …

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