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 …

Continue Reading

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 Some cases are withdrawn, some clients sign an engagement letter but do not pursue the claim, some clients decide to

Continue Reading

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. 

Continue Reading

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, …

Continue Reading

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 …

Continue Reading

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 …

Continue Reading

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. 

Sanctions were recently imposed by an Iowa …

Continue Reading

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. 

Professionals should consider several factors before deciding to end the relationship. Take the time to assess …

Continue Reading

Attorneys: You’re not Fortune-Tellers

Attorneys can’t predict the future. Even the most experienced of us cannot provide assurances about the outcome of our client’s claims and defenses. Sure, we’ll provide some suggestions and list the possibilities but it is the attorney who sets unreasonable expectations that may end up in trouble. Just ask the attorneys in Dallas who fell victim to a malpractice claim for allegedly over-promising a particular result to their former client.

In Doores v. Crutcher, a plaintiff claims that his former attorneys billed $400,000 in …

Continue Reading

Unpunished Good Deeds: Pro Bono Considerations

Pro bono work is an important, and often fulfilling, aspect of an attorney’s practice. For those in financial hardship, the pro bono attorney may spell the difference between hope and disaster. However, some attorneys may hesitate to take on a pro bono assignment because they are wary of the potential for malpractice exposure. Indeed, one report found about half of all attorneys surveyed identified lack of malpractice coverage as a factor discouraging participation. This and other concerns are warranted. While pro bono work is to …

Continue Reading