Plaintiff wins a big medical malpractice verdict, more than $6 milliion, and then based upon this report from Julie Littky-Rubin everything went wrong.

"Marelia v. Yanchuck, et al., 32 Fla. L. Weekly D1966 (Fla. 2nd DCA August 15, 2007):

A woman sued the lawyers who represented her in a medical malpractice case involving her baby son. The case was settled for 6.75 million dollars. The mother wanted to buy two annuities, but wanted to be sure that the annuities would provide a monthly benefit payment for the child, in addition to a lump sum payment for her to use at her discretion once a year for three years. The documents did not explicitly so reflect.

The guardian ad litem asserted that the payments were for the benefit of the child and brought a declaratory judgment action. This had the effect of freezing the funds, and the mother was then later sued by someone who had purchased an expectancy in her share of the annuity.

The trial court determined there was no issue of fact as to whether the settlement documents in the order approving settlement be made for the benefit of the child because there was nothing in the settlement documents to that effect. The court reversed. It found it was error to rule that way because the plaintiff was contending that this was what she had wanted, and what she advised her attorneys to include, but it never made it into the documents, and that was the issue. One defendant argued that the attorney ad litem would never have approved the settlement if the money were to go to her anyway, and therefore she wasn’t damaged.

The court further found that the statute of limitations did not begin running on the plaintiff’s legal malpractice case (another basis for the summary judgment) until the Alachua County Circuit Court’s order determined that the order approving the settlement was null and void, and that the settlement documents failed to disclose the parties’ intent regarding the payments. The attorneys argued that the action was barred by the statute of limitations because the debt collection judgment filed against her over the expectancy should have put her on notice. The court disagreed.

Kevin O’Keefe will be addressing the ABA National Conference on Legal Malpractice, discussing law firm blogs and legal malpractice.  His own blog, Lex Blog Blog discusses how a law firm might safely blog.

For Internal purposes of law firm
Identify who may blog
Identify technology issues and how they will be addressed
Software platform to be used
Graphic design and development
SEO – search engine optimization
RSS feed management
Maintenance of platform, particularly addressing comment and trackback spam issues
Hosting
Upgrades – who stays abreast of advancing technology and tests upgrades?
Backup
Training & follow-up issues
Who trains lawyers and staff?
Who oversees blogging?
Identify branding as firms or individual lawyers
ID ownership and who is speaking
Clearly label copyright
Blog copy
General information and alerts closer to email newsletters/alerts?
Entering into blog/social media discussion by following relevant RSS feeds and referencing in blog posts?
Posting policy
Individual lawyer(s) role
Marketing’s role
Commenting policy
Generally should allow
Software set to moderate so comments are approved before go live
What comments will be allowed?
Who approves comments?
Consider impact of Section 230 of Communications Decency Act
PR and communications
What, if any, PR and marketing will be done to promote blog?
How will networking with other bloggers and media be addressed?
Who responds to media requests of bloggers?
ID processes for unforeseen issues – probably already in place
Ethics Issues
Follow existing protocols of firm
Determine if specific blog rules exist in your state
May wish to file ‘screen shot’ of blog with ethic’s governing body
Follow existing states ethics rules, particularly web advertising rules
Technorati Tags: blog policies, legal ethics

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It’s in Scottsdale, AZ on September 19-21.  Here are the details:

Fall 2007 National Legal Malpractice Conference
September 19-21, 2007 – Scottsdale, AZ
FOCUS ON CRITICAL COMMUNICATIONS
A lawyer liability seminar designed to equip you to recognize and avoid communication failures that may result in legal malpractice or disciplinary actions.
Featured presentations:
– Special Pre-Conference Session on the Nuts-and-Bolts of Law Firm Blogs
– The Role of Personality in Determining Predisposition for Liability Exposure
– How Group Dynamics Influence Behavior
– The Internal Discussion: The In-Firm Attorney-Client Privilege
– Getting the Client Communications Right: Engagement, Billing, and Disengagement
– Law Firm Blogs: Truths and Myths on Liability and Ethical Concerns
– Client Development Pitfalls that Await the Unwary
– Avoiding Malpractice: The Art of Client – Centered Communication
– Communicating with Jurors
– Learning What the Medical Profession is Doing About Essential Communication

We thank the sponsors of the 2007 Fall National Legal Malpractice Conference

Here is a partial report from the Georgia Daily Report [Subscription], which we believe is a legal newspaper there:

" A MONROE LAWYER and a Tennessee insurance defense firm who didn’t talk to their client before a wrongful death trial have been hit with a $991,950 legal malpractice verdict. But one of the plaintiff’s lawyers who won that verdict,…"

Continuous representation of a client by the attorney acts as a toll of the statute of limitations.  In New York, a legal malpractice cause of action accrues at the time of the mistake, but a client is not expcted to fire the attorney and sue, so long as the attorney continues to represent the client in the same matter. While a continuing relationship of trust and confidence must exist, the most easily recognizable fact [especially in litigation] is that the lawyer continues to be the attorney of record.

Texas is apparently different, as this article by James (Sandy) McCorquodale  sets forth.

"The client’s divorce proceeding resulted in the entry of a Decree of Divorce on January 23, 1998. Subsequent to entry of the Decree of Divorce, the client was periodically represented by the lawyers on matters related to the enforcement of that decree. The underlying cause of action was filed on June 24, 2004.

Manning and the other defendants filed an Original Answer affirmatively alleging that the client’s claims were barred by limitations. The lawyers subsequently filed a traditional and no-evidence Amended Motion for Summary Judgment alleging that the client’s claims were barred by limitations and a lack of causation. The client contended that limitations did not operate to bar her cause of action for three reasons: (1) limitations was tolled during the existence of an attorney-client relationship; (2) accrual of her cause of action was deferred due to the discovery rule; and (3) limitations was tolled due to fraudulent concealment by The lawyers. The client further contended the summary judgment evidence raised a question of fact as to causation.

The trial court granted summary judgment in favor of the lawyers, holding that the client’s claims were barred both by the statute of limitations and lack of causation. The Court of Appeals affirmed.

Hughes tolling rule held inapplicable
The Court of Appeals found that the Hughes tolling rule was inapplicable:

Legal malpractice claims are governed by a two year statute of limitations. A legal malpractice claim accrues when the legal injury occurs, unless there is a legal basis for tolling limitations. Appellant’s legal malpractice claim centers upon her allegation that she received an inadequate division of community property when Manning incorrectly advised her that she was not entitled to a share of referral or contingency fees from lawsuits pending at the time of her divorce. Therefore, Appellant’s legal malpractice claim accrued when she sustained a legal injury, which would have been at the time the community property was divided by the entry of a decree of divorce.

Appellant, relying upon Willis v. Maverick, would have us adopt a bright line rule that says in a legal malpractice cause of action, limitations is tolled so long as the attorney-client relationship exists between the parties. Appellant’s reliance on Willis is misplaced. The existence of an attorney-client relationship does not, standing alone, toll limitations in a legal malpractice cause of action. Rather, limitations in a legal malpractice cause of action is tolled due to the attorney-client relationship only when the attorney’s malpractice occurs and is discoverable during the course of the underlying litigation being pursued by the attorney on behalf of the client. The Hughes rule, which tolls the limitations period until all appeals in the underlying action are exhausted, is expressly limited to cases involving claims of attorney malpractice in the prosecution or defense of the underlying litigation and does not apply to malpractice claims involving transactional work.

Appellant’s Decree of Divorce was signed on January 23, 1998. Therefore, applying the Hughes rule to the facts of this case, the statute of limitations on Appellant’s legal malpractice cause of action was tolled until February 22, 1998, the date her divorce decree became final.

Subsequent to the Decree of Divorce becoming final, Manning performed legal services for Appellant in the nature of work incident to the enforcement of the decree. Appellant would have this Court extend the Hughes rule to revive the tolling of limitations during these periods of representation. We conclude that reasons underlying the Hughes rule are inapposite to the facts of this case, and we decline to extend that rule without clear precedent. "

As the commentator says, trying a legal malpractice case as a pro-se is difficult, and a poor choice.  This case was about publicity and litigation.  Pro-se seems not to have opposed a motion for summary judgment, and lost her legal malpractice case.

:Filing a legal malpractice claim pro se is not the best idea. Appellant, a pro se litigant, sought both media attention and judicial relief against an attorney appointed as guardian ad litem and counsel to her. Appellee was appointed attorney and guardian ad litem to Appellant in connection with an emergency removal petition filed against Appellant by the Texas Department of Protective and Regulatory Services on July 26, 2001. On November 13, 2001, Appellee filed a motion to withdraw as counsel of record, based on Appellant’s alleged refusal to follow his advice and insistence on involving the media. Appellee attached a letter from Appellant to the El Paso Times to his motion to withdraw, in which Appellant accused Appellee of being “inadequate and ineffectual.” The trial court granted Appellee’s motion.

On October 21, 2004, Appellant filed a suit against Appellant for legal malpractice, breach of contract, defamation, and violation of her constitutional rights. Appellant filed an answer on November 5, 2004, and then both a traditional and a no evidence summary judgment motion. Both motions were granted; Appellant appeals.

The Court held that it need only analyze the propriety of the no-evidence summary judgment rule, because if its standard was met, the more stringent standard of a traditional summary judgment motion would also be met. "

Norman B. Arnoff and Susan Jacobs’recent article in the NYLJ reviewes three cases with new or novel legal malpractice allegations. They are  Ideal Steel Supply Corp.v. Beil, Grochocinski v. Mayer Brown Rowe & Maw LLP, and Trautenberg v. Paul Weiss Rikind, Wharton & Garrison LLP.

We reported on each of these cases, but the thread, say Arnoff & Jacobs, is that attorneys are using new and unique theories.  In Ideal Steel the theory was that the attorneys pursued a "unique and novel" RICO theory and lost.  In Grochocinski, the theory was that Mayer Brown advised a client not to respond to a TRO motion.  In Trautenberg, the theory was breach of fiduciary duty when Paul Weiss represented Citibank and plaintiff in arbitrations.

For a law professor’s comments on these cases, see this article.

This is not an entirely new phenominon, nor totally unexpected, but this article relates how carriers and excess carriers are starting to bring legal malpractice law suits after unsuccessful [in this case read: payout] outcomes.

Author: Baldwin, Susan McParland; Breen, Lisa C.

"Malpractice suits by insurance companies against their defense attorneys are increasing. There are two reasons for this phenomenon: the waning of the long-term relationship between insurance companies and their outside counsel and the increased cost-consciousness of these companies. The courts have allowed primary carriers to sue on equitable subrogation or direct duty principles, while some suits by excess carriers have been allowed on the theory that negligent legal advice to the insured caused the settlement to tap the excess policy. The issue has not been conclusively decided."

This is not strictly legal malpractice, but we wanted to report on this new statute.  Indiscriminate use of youthful offender, or other sealed records of ACDs, dismissals are a frequent problem for attorneys.  What are the rules?  When do these arrest [but not conviction] records surface?  What does a parent do for a kid who has a youthful indiscretion which results in an ACD ?

 

CH. 639. S.3092. SIGNED BY GOVERNOR 8/28/07. EFFECTIVE 11/1/07. AMENDS §296, EXECUTIVE LAW. RELATES TO UNLAWFUL DISCRIMINATORY EMPLOYER PRACTICES CONCERNING YOUTHFUL OFFENDERS AND PERSONS CONVICTED OF VIOLATIONS.

BILL TEXT:

STATE OF NEW YORK ________________________________________________________________________ 3092 2007-2008 Regular Sessions IN SENATE February 22, 2007 ___________ Introduced by Sen. VOLKER — read twice and ordered printed, and when printed to be committed to the Committee on Investigations and Govern- ment Operations AN ACT to amend the executive law, in relation to unlawful discriminato- ry employer practices concerning youthful offenders and persons convicted of violations The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Subdivision 16 of section 296 of the executive law, as 2 amended by chapter 208 of the laws of 1985, is amended to read as 3 follows: 4 16. It shall be an unlawful discriminatory practice, unless specif- 5 ically required or permitted by statute, for any person, agency, bureau, 6 corporation or association, including the state and any political subdi- 7 vision thereof, to make any inquiry about, whether in any form of appli- 8 cation or otherwise, or to act upon adversely to the individual 9 involved, any arrest or criminal accusation of such individual not then 10 pending against that individual which was followed by a termination of 11 that criminal action or proceeding in favor of such individual, as 12 defined in subdivision two of section 160.50 of the criminal procedure 13 law, or by a youthful offender adjudication, as defined in subdivision 14 one of section 720.35 of the criminal procedure law, or by a conviction 15 for a violation sealed pursuant to section 160.55 of the criminal proce- 16 dure law in connection with the licensing, employment or providing of 17 credit or insurance to such individual; provided, however, that the 18 provisions hereof shall not apply to the licensing activities of govern- 19 mental bodies in relation to the regulation of guns, firearms and other 20 deadly weapons or in relation to an application for employment as a 21 police officer or peace officer as those terms are defined in subdivi- 22 sions thirty-three and thirty-four of section 1.20 of the criminal 23 procedure law; provided further that the provisions of this subdivision EXPLANATION–Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD05179-04-7 S. 3092 2 1 shall not apply to an application for employment or membership in any 2 law enforcement agency with respect to any arrest or criminal accusation 3 which was followed by a youthful offender adjudication, as defined in 4 subdivision one of section 720.35 of the criminal procedure law, or by a 5 conviction for a violation sealed pursuant to section 160.55 of the 6 criminal procedure law. 7 § 2. This act shall take effect on the first of November next succeed- 8 ing the date on which it shall have become a law.

This Law.Com article describes a star attorney who is now a defendant in a legal malpractice suit in Washington DC. 

"Renowned Washington, D.C., litigator Michele Roberts has the kind of reputation that makes other attorneys salivate with envy.

"She mesmerized juries," says Wiley Rein partner Barbara Van Gelder, who worked for the U.S. Attorney’s Office when Roberts was arguably one of the best public defenders in D.C. "She was, to me, one of my most feared adversaries."

Still, there is one case that the seemingly infallible Roberts has not been able to win. It began nearly six years ago as a simple matter, one she agreed to handle as a favor to a federal judge. It has since given rise to a $5 million legal malpractice claim filed against her by a former client.

Vaughn Stebbins, whom Roberts represented in a civil case against the District of Columbia and a Metropolitan Police Department officer, claims that the superstar litigator botched his chance to recover damages for injuries he received after being shot nine times by the police officer in 1998. Stebbins accuses Roberts of blowing deadlines and failing to properly serve a key defendant — mishaps that led to the dismissal of his case.

Roberts isn’t the only defendant in the D.C. Superior Court case. Stebbins has also sued solo practitioner Steven Kiersh and Goodwin Procter, the firm that absorbed Shea & Gardner, where Roberts once worked.

In motions for summary judgment filed in June, Roberts and Kiersh argue that it is irrelevant whether their slip-ups led to Stebbin’s case being dismissed, because a reasonable jury would never have sided with him.

Yet that defense has placed the two lawyers in the awkward position of having to tear apart their original case and discount deposition testimony given by the expert witnesses that Kiersh had assembled.

Last month, Stebbins’ lawyers — Richard Swick and David Shapiro of Swick & Shapiro — filed their own motion for partial summary judgment, alleging that Roberts and Kiersh’s negligence was so straightforward that the matter is undisputable.