Presenting a live 90‐minute webinar with interactive Q&A

Attorney Professional Liability: Responding to Claims and Minimizing Malpractice Risks

T d ’ f l f

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

TUESDAY, FEBRUARY 12, 2013

Today’s faculty features:

Susan K. Eggum, Shareholder, Lane Powell, Portland, Ore.

Jonathan B. Bruno, Partner, Kaufman Borgeest & Ryan, New York

Kristopher M. Dennis, Partner, Kaufman Borgeest & Ryan, New YorkKristopher M. Dennis, Partner, Kaufman Borgeest & Ryan, New York

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Identifying Malpractice Identifying Malpractice Claims Against Attorneys

Susan K. Eggum, Esq.eggums@lanepowell.com

Lane Powell PC601 SW Sec d A e e S ite 2100601 SW Second Avenue, Suite 2100

Portland, OR 97204Tele: (503) 778-2100

55

Legal Malpractice Claims & DefensesDefenses

• Negligence-Based Claims― Legal Malpractice― Breach of Contract― Breach of Fiduciary Duty

• Four Elements― Duty of Care― Deviation from Standard of Care― Proximate Causation― Actual Damages

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Duty of Care:Attorney-Client RelationshipAttorney Client Relationship

• Privity/Third-Party ExposureAtt li t l ti hi t i ll i d― Attorney-client relationship typically required

• Retainer Not Required― Attorney-client relationship can arise from “explicit undertaking to perform a specific task”― No good deed goes unpunished

• Third-Party Claims― Rare but can arise from facts/circumstances, i.e. non-client reasonably relied on advice of attorney, and

attorney should have reasonably foreseen that non-client would rely on such advice

77

Duty of Care: Privity

• Generally the client may sue an attorney for legal malpractice.• Absent fraud, collusion or malicious or tortious act, a third

party may not sue an attorney.

• An individual’s unilateral belief that the attorney represents the individual does not confer the status of client. There must be an explicit undertaking to perform a specific taskan explicit undertaking to perform a specific task.

88

Privity: Factors

• Factors in determining whether an attorney-client relationship h b t d i t i l dhas been entered into include:― Whether a fee arrangement was entered into or a fee paid;― Whether a written engagement letter demonstrates acceptance of the retention;g g p ;― Whether there was an informal relationship in which the attorney rendered services gratuitously;― Whether the attorney actually represented the plaintiff in one aspect of the matter;― Whether the attorney excluded the plaintiff from some aspect of the representation in order to

t t thprotect another;― Whether plaintiff had a reasonable belief that the attorney was representing him or her.

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Privity: Exception

• So close as to approach privity― The attorney must be aware the services were being used for a particular purpose.― The third party relied upon those services.― The attorney demonstrates some understanding of the third party’s reliance.

• Exception narrowly applied― Third party opinion letters

Suit by excess insurer against insured’s attorney― Suit by excess insurer against insured’s attorney― Will beneficiary cases/Executor claims

1010

Scope of Engagement

• An attorney seeking to limit the scope of an engagement must li itl d fi th ti iti b i d t kiexplicitly define the activities being undertaking

• Engagement letters• Engagement letters

• Must take care to advise the client as to the areas where the Must take care to advise the client as to the areas where the attorney is not representing the client and that the client may need to seek counsel in those areas

1111

Breach of Duty of Care

• Applicable Standard of Care― Care, skill, and diligence commonly possessed and exercised by a member of the legal

community.

• Expert Witness Proof• Expert Witness Proof― Certain states (e.g. New York) do not require specialists in a particular legal discipline to be

certified.

1212

Standard of Care:Necessity of an ExpertNecessity of an Expert

• Plaintiff must prove, through expert testimony, that the attorney departed from acceptable legal standards in the community The departed from acceptable legal standards in the community. The failure to timely designate an expert may result in the dismissal of plaintiff’s legal malpractice case.

― Exceptions:• When the ordinary experience of the fact-finder is sufficient to judge the adequacy of the

services or• The conduct fell below any standard of care

• The expert cannot opine that certain conduct is legal malpractice.

1313

Standard of Care:Ethical ViolationsEthical Violations

• A claimed ethical violation without more will not support a legal malpractice actionmalpractice action.

• However, a violation of provision of the Disciplinary Rules, , p p y ,which sets forth minimum standards of conduct expected of attorneys, may be some evidence of negligence.

• A conflict of interest alone will not support a legal malpractice action.

1414

Proximate Causation

• “But For” Proximate Causation Standard― The legal malpractice plaintiff must plead and prove that “but for” the attorney’s malpractice, the client The legal malpractice plaintiff must plead and prove that but for the attorney s malpractice, the client

would have achieved a different result in the underlying matter.

• “Case Within a Case”― A hypothetical re-examination of the events at issue absent the alleged legal malpractice.yp g g p

• Rare Exception to “But For” Standard― Gotay v. Breitbart (1st Dept. 2005) the “but for” requirement relaxed in legal malpractice action where

plaintiff unable to establish underlying proof due to 25-year delay in the prosecution of underlying p y g p y y p y gmedical malpractice claim – attorney neglect.

• Other jurisdictions rely on a “substantial factor” causation standard

1515

“But For” – Case Within a Case

• Plaintiff must prove each and every element in the underlying case as well as the elements of the legal malpractice claimcase as well as the elements of the legal malpractice claim.

• “But for” causation requires a tighter causal nexus between the q gconduct alleged and the injury claimed than proximate cause.

• The “but for” standard applies to breach of fiduciary duty • The but for standard applies to breach of fiduciary duty claims brought against attorneys where relief sought is money damages.

1616

Actual and Ascertainable Damages

• Speculative Damages Not PermittedTh ibilit th t th l i tiff ill ff d i th f t i t h t t i l l ― The mere possibility that the plaintiff will suffer damages in the future is not enough to sustain a legal malpractice action, as the damages are not “actual or ascertainable.”

E i D• Economic Damages― The plaintiff must prove that he/she sustained economic damages directly resulting from the alleged

negligence – the basic measure of damages is the difference between (1) the plaintiff’s current economic position; and (2) what it should have been “but for” the alleged legal malpractice.

• Non-Liquidated Damages― Jury required to measure the value of the claim that was lost.

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Damages: Punitive

• Punitive damages are not recoverable in the absence of d t th t i “ t t i hi h d f conduct that is “so outrageous as to evince a high degree of

moral turpitude and showing such wanton dishonesty as to imply criminal indifference to civil obligations.”p y g

• In most jurisdictions, an attorney will not be held liable for the loss of a claim for punitive damages which were intended to punish the underlying wrongdoer.

1818

Damages:Collectibility and Emotional DistressCollectibility and Emotional Distress

• Collectibility― In certain jurisdictions it is the attorney’s burden to plead and prove the damages would not have In certain jurisdictions, it is the attorney s burden to plead and prove the damages would not have

been collectible.

• Emotional distress damages are not recoverable in the context of a legal malpractice action.

• However, there has been a recent trend in allowing the recovery of non-pecuniary damages for loss of liberty in criminal legal malpractice cases.

1919

Damages:Attorney Fees and InterestAttorney Fees and Interest

• Varies by Jurisdiction― Attorney fees incurred prosecuting a legal malpractice action are not recoverable, although

reasonable fees incurred by the client to cure an error may be. (NY and NJ Rule)

• Interest charged by a taxing authority as a result of the late • Interest charged by a taxing authority as a result of the late payment of taxes allegedly caused by an attorney is not a recoverable item of damages.

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Breach of Fiduciary Duty

• Breach of Fiduciary Duty― Apart from the obligations set forth in the Disciplinary Rules, an attorney has two separate fiduciary obligations g y y y g

to his client: (1) confidentiality; and (2) undivided loyalty.

• Elements― Same elements of proof (duty, breach of standard of care, causation) apply.

• Redundant Pleadings― Generally, a separate breach of fiduciary duty against an attorney cannot be premised on the same operative

set of facts as an accompanying negligence-based legal malpractice claim.

• A fiduciary relationship may be owed to a non-client if the attorney assumes the role as an escrow agent or trustee or if the attorney is aware that the non-client is relying upon the attorney to act on his behalf.

2121

Elements of a Fraud Claim

• The attorney made a material misrepresentation;

• That was knowingly false – scienter;

• Upon which the plaintiff reasonably relied; and

• Which caused damages to plaintiff

2222

Breach of Contract, and Misc. Causes of Action

• Breach of Contract― Need to establish promise to achieve specific result to give rise to separate, distinct contractual

damages – otherwise, breach of contract claim is redundant of negligence-based claim of legal malpractice.

• Conflicts of Interest― Same elements (duty, breach of standard of care, proximate causation) apply.

2323

ATTORNEY PROFESSIONALATTORNEY PROFESSIONAL LIABILITY

February 12, 2013

Jonathan B Bruno EsqJonathan B. Bruno, Esq.jbruno@kbrlaw.com

Kristopher M. Dennis, Esq.kdennis@kbrlaw comkdennis@kbrlaw.com

Manhattan120 Broadway, 14th Floor

New York, New York 10271

Westchester County200 Summit Lake Drive

Valhalla, New York 10595

Long Island1205 Franklin Ave., Suite 200Garden City, New York 11530

Tel: (212) 980-9600Fax: (212) 980-9291

Tel: (914) 449-1000Fax: (914) 449-1100

Tel: (516) 248-6000Fax: (516) 248-0677

New Jersey9 Campus Drive

Parsippany New Jersey 07054

California23975 Park Sorrento, Suite 370

Calabasas CA 91302

© KBR 2013

Parsippany, New Jersey 07054Tel: (973) 451-9600Fax: (973) 451-0150

Calabasas, CA 91302Tel: (818) 880-0992Fax: (818) 880-0993

Presentation OverviewPresentation Overview

• Defense Strategies and Tactics

• Loss Prevention and Techniquesq

25

Part IIPart IIDefense Strategies and Tactics

26

Common Defenses:St t t f Li it tiStatute of Limitations

– Period– Whether plaintiff characterizes the claim as one for breach of the retainer

agreement or in tort for malpractice (limitations periods differ by jurisdiction)

– Accrual– The cause of action for malpractice accrues at the time of the act, error or

omission, even if it is discovered later.

27

Continuous Representation TollContinuous Representation Toll

• The accrual of the three-year New York statute of limitations is tolled during the period of the lawyer’s continuous representation in the same matter out of which the malpractice arose.

• There must be a continuing relationship of trust and confidence g pbetween lawyer and client.

• The plaintiff bears the burden of pleading its application.

• The continuous representation toll is action specific such that the continuing representation must be in connection with the particular transaction or matter from which the malpractice allegedly arose.

28

Common Defenses:Ab f P i it (N St di )Absence of Privity (No Standing)

• Since a claim of malpractice requires the existence of an attorney client relationship based upon contractual privity, the absence of privity is a defense to a claim of malpractice.

– Privity with a husband does not mean privity with wife or children unless expressly undertaken;

– Privity with a corporate client does not mean privity with an officer or shareholder or investor of the corporation;

– Privity with the testator does not create attorney-client relationship between the attorney and beneficiaries – generally only the testator is in privity with the attorney.beneficiaries generally only the testator is in privity with the attorney.

– Exception: Executor and administrator are permitted to bring claim on behalf of estate.

29

Common Defenses:C ll t l E t l/R J di tCollateral Estoppel/Res Judicata

• A prior adjudication in the underlying matter may p j y g yhave a res judicata collateral estoppel effect for the resolution of the issue in the legal malpractice action

30

Common Defenses:J di i l E t l E t lJudicial Estoppel – Estoppel

• Failure To List Malpractice Claim As An Asset In pBankruptcy– A client who fails to list the malpractice claim in a bankruptcy schedule will be

barred under judicial estoppel principles from pursuing a claim.Potential Modification-Potential Modification

Palmer v. Mulvehill, 2012 NY Slip Op 33046(U) (Supreme Suffolk),

• Estoppel To Deny Voluntary Settlement– Estoppel has been applied to bar pursuit of a malpractice action where a clientEstoppel has been applied to bar pursuit of a malpractice action where a client

acknowledges the voluntariness of a settlement on the record in an underlying court proceeding and later brings a malpractice action on the theory of a coerced settlement.

31

Common Defenses:Ab f C ll tibilitAbsence of Collectibility

• Jurisdictions vary on who bears the burden of proving th ll tibilit f th h th ti l j d t i t ththe collectibility of the hypothetical judgment against the underlying tort-feasor as part of their prima facie case.

• In New York the intermediary appellate courts are split• In New York, the intermediary appellate courts are split with three departments ruling that the plaintiff has the burden of proof. In contrast, one appellate department has concluded that the ultimate collectibility of any y yjudgment that could have been obtained in the underlying action is a matter of mitigation of damages to be pleaded and proved by the defendant as an affirmative defensedefense.

32

Common Defenses:P t it /RiPrematurity/Ripeness

• Since a claim of legal malpractice requires non-g p qspeculative pecuniary loss where an underlying action in which the lawyer’s error occurred is still pending the injury claimed (lost or diminishedpending, the injury claimed (lost or diminished recovery) cannot be established and the claim is not ripe for adjudication.

33

Common Defenses:W i /A ti f Ri kWaiver/Assumption of Risk

• A waiver defense to a malpractice claim can occur pwhen a client knowingly and voluntarily waives a right.

– That client cannot later sue for legal malpractice complaining that theThat client cannot later sue for legal malpractice complaining that the attorney did not protect the interest the client knowingly surrendered.

• Assumption of the risk can also be pleaded as an ff faffirmative defense.

34

Common Defenses:R tifi tiRatification

• Even unauthorized acts by counsel can be ratified by y ythe client’s failure to object and acceptance of benefits. Such ratification can be a bar to a subsequent malpractice action based upon thesubsequent malpractice action based upon the unauthorized act.

35

Common Defenses:Cli t Thi d P t N liClient or Third-Party Negligence

• Where damages claimed are attributable to the gclient’s own inaction, negligence, or wrongful act and not the lawyer’s conduct, courts have not hesitated to dismiss the client’s legal malpractice g pclaim.

• An attorney is not liable for acts or omissions which did t d i hi h t tidid not occur during his or her representation, or due to acts of a predecessor or successor counsel.

36

Common Defenses:Att J d t R lAttorney Judgment Rule

• A lawyer is not held to a standard of infallibility and may take chances.

– If the lawyer errs on a question not elementary or conclusively settled by authority, that error is one of judgment for which he is not liable. Malpractice claims based upon a client’s after-the-fact criticism of a lawyer’s strategic judgment will not be sustained.

• Settlement Recommendations• Settlement Recommendations– Lawyers make recommendations regarding

settlement everyday. Such recommendations may be based upon a litany of tangible and intangible factors. Such judgment may also be based on j g yunsettled issues of law. Such recommendations will not be the subject of a malpractice claim unless palpably unreasonable.

37

Defenses to Breach of Fiduciary DutyDefenses to Breach of Fiduciary Duty

• Statute Of Limitations– Generally in New York, a three-year period of limitations applies where money

damages are sought. Like malpractice, the claim accrues when injury is sustained, regardless of plaintiffs’ discovery. The claim has been held subject to the continuous representation toll– The claim has been held subject to the continuous representation toll.

– Where the relief sought is equitable in nature, like rescission, accounting, disgorgement, etc., a six-year period of limitations has been applied.

• Redundant Malpractice Claim– Where a breach of fiduciary duty claim is premised on the same facts and seeks

the identical relief as a legal malpractice claim it will be dismissed as redundant.

38

Additional DefensesAdditional Defenses

“In pari delicto”p• Fraudulent conduct of a corporate office is imputed

to the corporation if committed in the course of the ffi ’ l t d f th b fit f thofficer’s employment and for the benefit of the

corporation• Similar to comparative or contributory negligenceSimilar to comparative or contributory negligence

defense, however it is stronger because it can operate to bar tort, contract, and equity claims

.

39

Retaliatory ClaimsRetaliatory Claims

• Malicious prosecutionp

• Abuse of process

• Defamation• Defamation

• Prima facie tort

• Interference with contractual relations

• Spoliation of evidence – E-discovery

40

Legal Malpractice Defense:Liti ti St tLitigation Strategy

• Pre-Trial Discovery/Motion Practicey– Targeting Discovery for Summary Judgment– Deposition Strategies

• Trial Tactics– Jury Selection– Evidentiary Issues– Expert Testimony– Jury Instructions

41

Part IIIPart IIIRisk Management

and Loss Prevention

42

Why Legal Malpractice Risk M t I E ti lManagement Is Essential

• No Good Deed Goes Unpunishedp– Clients Present Risk– Managing Client Relationships

Clarify Scope of Representation– Clarify Scope of Representation– Communicate, Communicate– Finish as You Start

• Expect the Unexpected– Data/Security Breachesy– Natural Disasters– Theft & Fraud

43

Self Audit: Law Firm Organizationd P dand Procedures

• Firm Organizationg– Training and Supervising lawyers– Reporting Structure- Accountability– Avoid Ivory Tower

A oid High T rno er of Personnel– Avoid High Turnover of Personnel

• Accounting/Billing Procedures

• File Opening/Closing Procedures

44

File OpeningFile Opening

• Know Your Client– Who, What and Why?– Due Diligence- Investigate– Past History

• New Client Self-Audit– Expectations Test

• Are Client’s Expectations Reasonable?Are Client s Expectations Reasonable?• Will Firm Be Able Meet Those Expectations?

– Scope of Representation– Fee Arrangements

45

Retainer LettersRetainer Letters

• Every Casey– Not Just for Contingency Cases– Friends and Family– Return and Repeat Clients

Rare e ceptions check o r state la s– Rare exceptions – check your state laws

• Should Include:– Scope of Services: Set ParametersScope of Services: Set Parameters

• Services to Perform• Distribution of Responsibilities

– Basis for Fees and ExpensesRi ht t A bit t F Di t– Right to Arbitrate Fee Dispute

– Client Bill of Rights

46

New Matter Intaked C fli t A idand Conflict Avoidance

• Why have a “system”?y y– It is a disciplinary violation in certain states to not to have a system by

which proposed engagements are checked against current and previous engagements.

• How elaborate must the “system” be?– Solos and very small firms need to check their records and consult with

other attorneys in the firm about questions triggered by their records;other attorneys in the firm about questions triggered by their records;– Larger firms need to install software systems and determine whether

those systems are reliably identifying conflicting information. – Systems should be supplemented with electronic communications

methods to reach attorneys with relevant information.

47

New Matter Intaked C fli t A idand Conflict Avoidance

• What is the system supposed to be checking for?C fli t R Si lt R t ti DR 5 105– Conflicts Re: Simultaneous Representations: DR 5-105

– Conflicts Re: Former Representations: DR 5-108

• What information is needed?– Client names: Full name of each client represented by the firm.p y– Adverse party names: Parties whose interests are materially adverse.– Description of engagement: A brief description of the engagement.

• Best source of information: intake attorney who has relationship with the y pprospective client.

– Cooperation by attorneys in the firm. Does the firm have an intake policy?– Does the firm policy include penalties for lawyers who fail to check for conflicts or accept

matters despite known conflicts?D th fi h th bilit t l i f ti i d t d t i th i t f– Does the firm have the ability to analyze information in order to determine the existence of a conflict of interest?

– Who reviews the intake information?– What happens to information once a match in names appears?– Who resolves disputes concerning conflicts?p g

48

New Matter Intaked C fli t A idand Conflict Avoidance

• Is the client an individual or entity?y– If an individual, what relationships does the individual have that could

present a conflict? Shareholder, director and employment relationships. – If an entity, what is the relationship between the entity and other entities

represented b the Firm? Will the sim ltaneo s representation presentrepresented by the Firm? Will the simultaneous representation present a conflict down the road?

• Questions to AskQuestions to Ask– Names of all officers, directors, and major shareholders– Names of all parents, subsidiaries, affiliates, sister corporations

49

Multiple RepresentationMultiple Representation

• Waiver of Conflict Permissible if:– Appropriate disclosure – Client able to understand implications, advantages and risks– Disinterested lawyer would believe that the law firm can competently

represent all clientsrepresent all clients

• Blanket Waivers– Limited to sophisticated clientsLimited to sophisticated clients– Waiver limited to undisputed transactional matters– Client confidences will be maintained

50

Attorney/Law Firm C l d & D k tCalendar & Docket

• Advantages of Computer Calendars– Each person can set their own day-planner– One person can remind others– Multiple opportunities to meet deadlines – Add entries for lawyers in remote offices

• Malpractice insurers want you to have a computer calendar– Application for legal malpractice insurance asks about calendars– Computer-based?– Accessible to multiple people?

• Garbage In, Garbage Out-the Effective use of a Calendar System– Having a computer calendar is not enough– Need a system for complete and accurate data entry

M ltiple so rces of deadlines can lead to ball dropping bet een the o tfielders– Multiple sources of deadlines can lead to ball dropping between the outfielders– Designate one person to enter all case dates-consistent format and accountability – All dates must be on multiple calendars– Proper ticklers are critical

51

Watch Your Accounts ReceivableWatch Your Accounts Receivable

52

Actions for FeesActions for Fees

• If receivables get too large, a fee suit may become inevitable

• The firm will pay the costs of collection

• There will be a counterclaim for malpractice

Th fi ill it d d tibl• The firm will pay its deductible

• The firm will lose billable time

• The firm may lose fees it has already been paidy y p

• Tip #1: Avoid fee actions if possible

• Tip #2: Wait until the statute of limitations on a legal malpractice claim expires before commencing a fee actionexpires before commencing a fee action

• Tip #3: Make sure you can back up your claim for fees

53

Good Billing Is Good BusinessGood Billing Is Good Business

• Poor billing practices lead to conflicts with clients.

• Conflicts with clients lead to claims for malpractice.

• Solution: implement clear and consistent billing procedures on all matters

• Tips:– Be Short But Concise– Be Consistent– Be Careful

54

Communication BreakdownCommunication Breakdown

• Uninformed or Misinformed Client is a Malpractice pClaim Waiting to Happen

55

Tips for Enhancing CommunicationTips for Enhancing Communication

Solution: Constant/prompt/truthful communication with the client

• “cc” and/or “bcc” the client

• Forward Key Documents

• Return Phone Calls• Return Phone Calls

• Be the Bearer of Bad News

• Manage Expectations from the Outset

56

Closing LetterClosing Letter

• Why is a closing letter important?– Lets client know that matter is concluded, and provides an

opportunity to clarify who is responsible for any future follow-up items. Barnes v. Turner, 278 Ga. 788, 606 S.E.2d 849 (2004).Cl ifi h th th i ti i tt li t l ti hi– Clarifies whether there is a continuing attorney-client relationship

– Marks a clear period in time after which the attorney is no longer responsible for the matterLatest accrual date to start the statute of limitations running– Latest accrual date to start the statute of limitations running

– Treats matter as closed for conflict checking purposes; important distinctions exist between current and former clients.

57

Disengagement LetterDisengagement Letter

Disengagement (or non-engagement) l h ld ll f hletters should warn generally of the existence of any suspected statute of limitations issue without creating a risk that negligent advice is being provided.that negligent advice is being provided.

Example: “There are statutes of limitation that may in the future, or may already have li it d i ht d l i d it ilimited your rights and claims, and it is therefore essential that you engage counsel to advise you at your earliest opportunity.” Lopez v. Clifford Law Offices, P.C., 2005 WL p , ,3372732 (Ill. App. Dist. Dec. 12, 2005).

58

Questions?Questions?Jonathan B Bruno EsqJonathan B. Bruno, Esq.

jbruno@kbrlaw.comKristopher M. Dennis, Esq.

kdennis@kbrlaw comkdennis@kbrlaw.com

59