Legal Malpractice Archives - Page 2 of 15 - Professional Liability Matters

Timed Out: Continuous Rep Doctrine Denied in Maine

You generally know the drill: a plaintiff has limited time to file suit. Generally, the statutory period begins when the plaintiff knows or reasonably should know that she has been harmed and that the defendant caused that harm. You also generally know that statute of limitations defenses are not nearly that simple. There are variables including the discovery rule and the gist of the action doctrine which may impact the argument. The continuous representation doctrine is another wrinkle that could affect whether a malpractice claim …

November 5, 2018 Legal Malpractice / Risk Management

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 In an unpublished opinion in the case of Schildiner v. Toscano, the Appellate Division upheld a decision from the Essex County Superior Court dismissing the lawsuit filed by the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 …

June 18, 2018 Legal Malpractice / Settlement

The Dreaded Settle and Sue: Alive and Well in New Jersey

It is no secret that parties more often settle than proceed through trial. While courts roundly applaud this as beneficial to both the system and litigants, it sometimes generates second guessing from the clients. As Larry David put it, “a good compromise is when both parties are dissatisfied.” It is therefore no surprise that many legal malpractice claims follow from settlements, despite the general principle that the settlement itself precludes such a suit. In a recent decision from the New Jersey Appellate Division, the court’s …

June 4, 2018 Coverage / Legal Malpractice

Secrets Are No Fun, Especially When It Comes To Malpractice Coverage

The risk of a malpractice claim is real. That’s the bad news. But, now that we have your attention, the good news is that insurance is available to defend and indemnify professionals who face malpractice claims. In order to receive coverage, however, professionals generally must disclose whether they are the subject of any potential claims when completing their applications. If an insurer discovers that a professional had knowledge of a potential claim, but failed to disclose it, it could rely upon the nondisclosure as a …

April 9, 2018 Legal Malpractice

Malpractice from Litigation Funding?

Third-party litigation funding is still in its relative infancy and yet it has blossomed into a massive industry. Litigation funding spans from payday-like loans for personal injury litigation to multi-million dollar intellectual property disputes. Many attorneys across the spectrum have commented on the issues that could arise from this new market, but malpractice lawsuits in connection with the funding itself are extremely rare. However, a recent suit filed in the United Kingdom could be a sign of things to come for those firms who are …

January 17, 2018 Accountants / Defenses / Legal Malpractice

How Long Is Too Long to Wait for Malpractice Actions?

One of the most common problems facing a would-be plaintiff considering a malpractice case is when to file suit. Similarly, those that defend professionals must consider whether to move to stay proceedings if applicable. Especially with accountants and attorneys, causation and damages are difficult to calculate until the underlying matter has concluded. This means that the notoriously long legal process can often come into conflict with the statute of limitations, or create evidentiary problems. The decision is whether to wait many years for the underlying …

January 2, 2018 Legal Malpractice

Is a Client’s Criminal Prosecution Foreseeable?

Professionals assume a duty of care to their clients. Accordingly, professionals may be held liable for damages to clients that are proximately caused by their negligent acts. In many cases, the link between the professional’s negligent act and the client’s injury is clear, such as a missed deadline that waives a client’s rights. The limits of foreseeability become more difficult to define when the professional’s alleged misconduct triggers independent acts by third parties, such as a government investigation of the client.

In Kumaraperu v. Feldsted…

May 11, 2017 Legal Malpractice

PA Supreme Court: Attorneys Still on the Hook

Attorneys are expected to act as zealous advocates for their clients. As such, attorneys often pursue claims on behalf of their clients even when the legal theory of recovery is unclear or the facts developed in discovery favor a defense verdict. In some cases, however, attorneys may pursue recovery even where they know that the claims are without merit or the theory of liability is contrary to an established rule of law. When an action is clearly frivolous, the defendants may be entitled to bring …

May 2, 2017 Law Practice Management / Legal Malpractice

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 …

March 1, 2017 Legal Malpractice / Malpractice Defenses

Family Feud leads to Privity Lesson

A somewhat bizarre family feud presents an interesting evaluation of the general requirement of privity in order to maintain a legal malpractice claim. Consider the circumstances of when an attorney is appointed by the court to administer an estate. Who is the client? A Kansas appellate court examined this situation in Schroeder v. Brewer, 2017 Kan. App. Unpub. LEXIS 101 (Kan. Ct. App. Feb. 17, 2017) which addresses whether an attorney may be held liable for legal malpractice while representing an Estate “against” the …