We were told early in life not to talk so much.  This advice may have served the Larkin Law firm well in its dealings with a client.  This report of a question certified to an appellate court, is an example.

"Madison County Circuit Judge Barbara Crowder wants appellate judges to decide whether an attorney-client relationship existed between the Lakin Law Firm and a woman whose injury claim the firm chose not to pursue.

Crowder on Aug. 23 certified questions to the Fifth District in Mount Vernon about the firm’s dealings with Suzanne Krause of Tennessee.

The Fifth District’s answers will determine whether Krause can seek damages from the Lakins on a claim of legal malpractice.
In 2004 Brad Lakin sent the family a letter stating, "After reviewing the information that we have we believe that the case would be extremely difficult to prove."

He wrote that if they wanted to pursue the claim they should contact another attorney.

"Please remember, the statute of limitation on your case is two years from your daughter’s eighteenth birthday," he wrote.

Last year she sued former Lakin lawyer Scott Bruce Meyer, the firm, Brad Lakin and his father Tom Lakin.

Her attorney, Kevin McQuillan of Downers Grove, claimed the Lakins breached their duty to her in their investigation.

He claimed the statute of limitations was one year, not two."

The advice usually given is to say simply that there is a statute of limiations and the clinet should obtain advice how to proceed.

Attorney Fee disputes can be a landmine, a source of big problems, and a constant source of legal malpractice litigation.  Here is yet another report of a Texas Case.

"For nearly six years, a prominent Dallas plaintiffs firm has battled a former client in an attempt to recover a contingent fee. But after a three-day trial, it was the former client who won the war. On Aug. 21, a Tarrant County jury awarded $1.4 million in damages to defendant Robert L. French.

In its 2001 petition in Law Offices of Windle Turley v. Robert L. French, et al., the firm alleged that a former client took his medical-malpractice case to another lawyer without paying the Turley firm for the legal work it already had done on his case. Under the Texas Supreme Court’s 1969 opinion in Mandell & Wright v. Thomas, when a client discharges an attorney without good cause before work has been completed, the attorney may recover on the fee contract for the amount owed.

Windle Turley says his firm sued its former client because it was a matter of principal. In its petition in French, the firm asserted a quantum meruit claim to recover for the work performed in the med-mal suit.

In 2005, French countersued the firm alleging intentional infliction of emotional distress. While the jury awarded zero dollars on the Turley firm’s suit, it awarded $1.4 million to French on his countersuit.

Three professional liability attorneys say the jury’s award in French is an example of why firms that sue clients over fees need to be careful — a sentiment with which Turley agrees.

"It is risky to ever bring an action against a client," says Turley, who is asking Judge Len Wade of the 141st District Court of Tarrant County to set aside the verdict. "And I don’t ever like to go the judicial route to enforce a contract. However, having said that, there are occasions in which the circumstances compel an attorney seeking judicial assistance."

Turley still believes the fee dispute in French justified the firm’s suit. His firm sued French to prevent clients from taking away cases and not paying for the work. Turley believes the verdict — if it stands — will weaken the contingent-fee contracts plaintiffs attorneys sign with their clients.

"It’s very, very unfortunate," says Turley of the verdict. "And I think it’s a distressing sign of the times."

We reported on this last month, but here is a Hinshaw report on a legal malpractice case in which an attorney lost a medical malpractice case in illinios, and at the same time failed to tell the client about a $1 Million offer.  He is found liable to the client for the amount of the offer.

 

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. "