The Law for Lawyers Today

The Law for Lawyers Today

Ethics, Professional Responsibility and More

Category Archives: Malpractice

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What’s in a word? No arbitration for lawyer accused of breaches in deal with client

Posted in Malpractice
Closely parsing the language in an arbitration clause, the California state court of appeals recently reversed an order compelling arbitration of a dispute between a lawyer and his client-turned-business-partner. The lawyer must now defend against a $1.5 million claim based on malpractice and breach of the operating agreement that the lawyer had drafted in connection with his real estate venture with the former client. With arbitration provisions becoming a common feature of lawyer-client retainer agreements, this ruling is worth attention.… Continue Reading

Lawyer must reveal co-counsel’s error to client if it could raise malpractice claim

Posted in Communication, Conflicts, How Not to Practice, Malpractice
What should you do when you are co-counsel on a case or in a deal, and you become aware that the other lawyer has made an error? A new ethics opinion from the New York State Bar Association says that if you reasonably believe that your co-counsel has committed a significant error or omission that may give rise to a malpractice claim, you must disclose the information to the client.… Continue Reading

No duty to raise claims unless “viable,” even if they are “colorable,” says court

Posted in Malpractice
A lawyer's duty of care to a client does not include raising claims on the client's behalf that are merely "colorable," and not actually "viable," the Oregon Supreme Court held last month. The court quoted with approval from an amicus brief from the state's mandatory provider of malpractice insurance, which said that a "colorability" standard would only promote "scorched earth litigation," and expose lawyers to "hindsight bias."… Continue Reading

Dabbling in other practice areas can bring disciplinary, malpractice woes to lawyers

Posted in Competence, How Not to Practice, Law Practice Management, Malpractice
Did you make a New Year’s resolution to shift gears in your law practice?  Maybe start practicing in a new area of the law that is unfamiliar to you?  It’s always fine to add new skills, of course, and marketing yourself in new ways can be a good strategy for bringing in more revenue in 2016.  But… Continue Reading

Want to be “local counsel”? Understand who your client is and define your duties

Posted in Competence, Engagement letters, Law Practice Management, Malpractice
If you only agree to be “local counsel” in a matter, you can rest assured that your limited undertaking also limits the scope of your duties — right?   Wrong — as a recent disciplinary case and recent ethics opinion point out. No “local counsel exception” to conduct rules If your law school friend is serving as… Continue Reading

Reminder: check for client’s insurance, or you may be liable for malpractice

Posted in Competence, Insurance, Malpractice
Failing to check whether the claim against your client might be covered by insurance can get you in hot water — or at least keep you there, preventing a speedy exit from a malpractice suit, as a Florida lawyer recently learned. In Pharma Supply, Inc. v. Stein (PACER access ID required), the client alleged it retained… Continue Reading

Lack of privity sinks fiancée’s suit against divorce lawyer

Posted in How Not to Practice, Malpractice
After winning more than $250,000 at trial, the fiancée of a deceased postal worker came up short in the District of Columbia Court of Appeals based on lack of privity between her and the lawyers who mishandled the decedent’s divorce. In Scott v. Burgin, the fiancée and the decedent had lived together for years, and he had filled… Continue Reading

Legal malpractice is compulsory counterclaim in fee suit, Ohio court of appeals says

Posted in Fees, Malpractice
When a lawyer sues a client for unpaid fees, the client must assert any possible claim for legal malpractice as a compulsory counterclaim, the Ohio Eighth District Court of Appeals has held.   In other words:  use it or lose it.  The court upheld summary judgment in favor of a lawyer whose client failed to assert such a counterclaim. In… Continue Reading