NJ Considering Bill to Shorten Malpractice Statute of Limitations

A measure that would shorten the statute of limitations for New Jersey malpractice claims against certain licensed professionals, including attorneys, from six years to two years, passed the Assembly Judiciary Committee on March 18 in Trenton. Although a small step, this is encouraging for many New Jersey professionals, and the attorneys who defend them.

Under A-4880, malpractice suits against licensed accountants, architects, engineers and land surveyors would also have to be filed within two years, and attorney fees could not be awarded in any action …

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Fee Dispute ≠ Malpractice

A New Jersey appeals court recently ruled that a disbarred attorney cannot sue his former attorney for malpractice in connection with a fee dispute.  In an unpublished opinion in the case of Schildiner v. Toscano, the Appellate Division upheld a decision from the Essex County Superior Court dismissing the lawsuit filed by the disbarred lawyer (“Lawyer”), against the firm he hired, (“Law Firm”).

As reported by the New Jersey Law Journal (subscription required), the retainer dispute stemmed from Law Firm’s representation of Lawyer, who …

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Lawyers: Don’t Battle for the Throne

Many business deals begin with a handshake or a quiet conversation. Corporate America is filled with side deals and compromise and promises. Often, these arrangements are perfectly acceptable. But, the intersection between business and politics is a different animal; there are strict regulations regarding governmental contracts and bids and proposals. Transparency is key. Attorneys engaged by governmental contractors must be careful. The recent indictment of a Pennsylvania mayor and an outside attorney in what is being alleged as a pay-to-play scheme is a reminder of …

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Is General Advice from an Attorney Privileged?

Attorneys consistently provide guidance to clients, but not all of the consultation may be considered legal advice. Often an attorney’s role extends beyond the boundaries of legal advice and into other topics such as general business advice. When this occurs, the definition of what constitutes “legal advice” can become blurred, which has implications on privilege. In the recently released decision in Harrington v. Freedom of Information Commission, et al., the Connecticut Supreme Court examined this issue in detail.  According to the court, the case …

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Public Spat With Client Leads to Disciplinary Action

Many professionals are proud of their work-product, their reputation, and their capabilities. Along those lines, many professionals are sensitive of their public image, including their online presence.  Therefore, when others post critical reviews of a professional on social media, it may be tempting to respond in a defensive manner.  But, be careful.

Recently, a Washington D.C. attorney received an informal admonition from the Office of Disciplinary Counsel following a public dispute with a former client.  According to the Disciplinary Counsel, the client claimed that she …

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Judicial Scrutiny of Frivolous Litigation Statute

Nobody wants to be named as a defendant in a lawsuit.  Litigation is expensive, time-consuming, upsetting, and often intimidating for clients.  Being dragged into a suit is even more frustrating when the defendant knows the claims are entirely without merit.  Defendants who are the victim of frivolous litigation are not without recourse, however.  Where the underlying lawsuit is unwarranted, without evidentiary support, or presented for an improper purpose, such as harassment or delay, defendants may have the opportunity to seek damages against the plaintiff and …

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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 …

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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.

In Doviak v. Finkelstein & Partners, LLP, a law …

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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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Failure to Keep Up with Technology Could Lead to Ethics Violation

Technology is rapidly changing the manner in which businesses operate.  This is equally true for professionals, who must incorporate and adapt to technological advances in order to thrive in a competitive marketplace.  However, keeping up to date with technology is not merely a matter of protecting the bottom line.  Professionals who fail to stay on the cutting edge could violate ethics rules and jeopardize their client’s interests.

The State Bar of California Standing Committee on Professional Responsibility and Conduct recently issued a formal opinion addressing …

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