Sunday, September 27, 2009
--Poor communication between lawyer and client, resulting in disparate understandings of the arrangement.
--Missed deadlines through bad calendaring or failure to know deadlines.
--Poor investigation that misses basic facts.
--Failure to catch errors in work delegated to assistants.
In personal injury cases, blowing the statute of limitations leads the way in malpractice errors, either because the attorney entered the wrong date in the law firm's or lawyer's calendar, the attorney waited for the very last day to file or because the attorney did not know statutory deadlines. Any of these can be used to support a claim of incompetence under Rule of Professional Conduct -- although it is unlikely that a one time ocurrence by itself will result in such a finding.
The second most common reason for malpractice complaints is be familiar to students of Professional Responsibility: the failure to decline the case in time for the plaintiff to find another lawyer. Often a lawyer doesn't make it clear to a potential client whether the lawyer agreed to take the case or is just looking it over. And the lawyer never gets around to actually rejecting the representation.
Evidently, both of these mistakes are pretty basic. In fact, I cover both of them in the classes I teach. In Torts, a first semester class, I tell my students that buying a calendar and learning how to use it is the fist thing they should do after they get a job and that missing the statute of limitations is the dumbest thing they can do. In Professional Responsibility, a third semester class, we cover the issues related to the formation of an attorney-client relationship by discussing the famous case Togstad v. Vesely, Otto, Miller & Keefe which illustrates the importance of letting a client know clearly the decision not to agree to the representation. If a second year law student knows not to make these mistakes, there is no excuse for attorneys in practice to be making them.
Friday, September 25, 2009
"At present, if a representation ends early, the discipline system will often try to assess what portion of a fixed fee a lawyer earned (i.e., what is “reasonable”) by multiplying the number of hours worked by a reasonable hourly rate. Thus, if a lawyer who regularly bills $200 per hour collects a $5000 fixed fee to prepare a will, but spends only two hours on the will, disciplinary authorities may try to force the lawyer to refund the additional $4600. . . . .
"If disciplinary authorities continue to insist that a challenged fee will be assessed through the hourly billing prism, they will push for fixed fee engagements to be “lose-lose” engagements for the lawyer. . . .
"The limit on reasonableness of fees, commonly Model Rule 1.5, does not require such an outcome."
Yesterday, the District of Columbia Court of Appeals published an opinion in which it held that that a flat fee paid to a lawyer remains the property of the client until it is earned. Unfortunately, it is not particularly clear at which point the fee is, in fact, earned. The court simply suggested that whether the fee has been earned will be determined based on an objective reasonableness standard "in light of the scope of the representation" and "in the context of the anticipated length and complexitity of the representation."
The text of the opinion is available here. For more on the story go to the Legal Times Blog and to the Legal Profession Blog.
Monday, September 21, 2009
Go here for the full story.
(1) Do provisions of the Bankruptcy Abuse Prevention and Consumer Protection Act regulating attorneys’ advice to clients and mandating certain advertisement disclosures violate the First Amendment? Milavetz, Gallop & Milavetz, P.A., et al. v. United States, 541 F.3d 785 (8th Cir. 2008)
(2) Is an attorney’s faulty advice grounds for setting aside a criminal defendant’s guilty plea? Padilla v. Commonwealth of Kentucky, 253 S.W.3d 482 (Ky. 2008)
(3) When, if ever, does a novice attorney’s inexperience constitute ineffective assistance of counsel? Wood v. Allen, 542 F.3d 1281 (11th Cir. 2008)
(4) Should a court’s order compelling production of privileged materials be immediately appealable? Mohawk Industries, Inc. v. Carpenter, 541 F.3d 1048 (11th Cir. 2008)
(5) Can quality of performance and results obtained justify an enhancement to an attorney’s fee award under a federal fee-shifting statute? Perdue v. Kenny A, 532 F.3d 1209 (11th Cir. 2008)
(6) May a prosecutor be liable for civil damages for procuring false testimony and introducing that evidence against a criminal defendant at trial? Pottawattamie County v. McGhee, 547 F.3d 922 (8th Cir. 2008)
Sunday, September 20, 2009
Judge issues warning to attorney for filing frivolous case arguing Pres. Obama is ineligible to serve as president
For more on this story go here (incl full text of the opinion) and here.
Friday, September 18, 2009
Thursday, September 17, 2009
For the full story, comments and links to other sources, go here and here.
Over at Legal Ethics Forum, Prof. Andrew Perlman adds: "Notably, and again not surprisingly, the Texas court's order offers no legal analysis or reasoning. It simply offers a bare bones conclusion: "We find that the allegation fails to satisfy the requirements of Article 11.071, § 5(a)." And why is that, exactly? If a law school graduate offered that as "legal analysis," it wouldn't suffice to pass the bar exam. Apparently, it suffices for Texas judges in capital cases when one of their former colleagues is accused of misconduct. This is not the first time that I've seen a state court in a capital case summarily reject a strong argument without any legal analysis, and it is unlikely to be the last. Kudos to the dissent for actually addressing the evidence and issues that were presented."
UPDATE on this story April 21, 2010.
Today, in an article in the Wall Street Journal law blog, Ashby Jones states that "Dating to about five minutes after the billable hour was born, folks have been predicting its death. But throughout it all, no other billing method has come close to knocking the billable model from atop its lofty perch. Until now, it seems. According to an article in Legal Week, both Mayer Brown and Reed Smith are looking hard at moving to fixed or capped fees for their transactional work. is looking to move away from traditional hourly billing models, with plans to bring in fixed or capped fees for transactional work."
For the full article go here.
Tuesday, September 15, 2009
Saturday, September 12, 2009
Friday, September 11, 2009
I usually start my course on Professional Responsibility with a discussion of a case where a lawyer is faced with a representation that has troubling moral implications. I ask my students to list options for the attorney. When we step back and look at the list, we usually find a very clearly defined spectrum... from quitting the job (or the profession entirely) ... to doing what the client wants and not caring about anything else (complete "detachment" or, as one of my students called it this year, becoming a "robot"). Somewhere in the middle, but usually not the first option suggested, someone asks, why not talk to the client about it?... and then someone says because maybe the client will think you are weak, or because that's not what the client wants to hear, etc... And so goes the discussion. Good stuff.
We usually agree to disagree on exactly what is the best course of action for that particular case but we do agree that as lawyers we often will have to face some level of moral detachment.
Coincidently, I just came across a note in the Legal Ethics Forum about an an article by Prof. Rob Vischer on this subject called Professionalizing Moral Engagement (available here) which proposes that the professional norm should be the opposite of moral detachment. Here is the abstract:
This essay is an invited response to Michael Hatfield, who argues that the legal profession might avoid creating lawyers willing to “sign off on torture if their professional education did not begin with dis-integrating the skills for intellectual agility from the skills for moral resolution.” I contend that we do not need lawyers to reach “moral resolution," for it is not the lawyer’s job to resolve the moral questions that clients face. We do need lawyers, on the other hand, to ensure that clients are aware of the moral questions that are often embedded in the legal questions raised by the representation. Lawyers’ recurrent failure to raise moral questions infringes on client autonomy by precluding the client’s ability to fully consider what is at stake in the case. Our approach to professional formation both during and after law school almost totally ignores this “moral due diligence” dimension of the attorney-client relationship. Especially in cases where the governing law is indeterminate, lawyers need to be able to engage their clients in a moral dialogue, which requires both familiarity with, and sensitivity to, moral reasoning. But lawyers’ capabilities in this regard should not be deployed in order to resolve the moral questions; rather, they should be deployed in order to assist the client in resolving the moral questions. The essay lays out some possible avenues by which legal education can support the project of professionalizing moral engagement.
Monday, September 7, 2009
The Colorado Hearing Board imposed a suspension of one year and one day, with all but 60 days stayed, and probation for two years. The board gave significant mitigating weight to the attorney's "admirable action in self-reporting [the] misconduct." But for that factor, the board states that disbarment would be the appropriate sanction.
Go here for a copy of the opinion. Thanks to the Legal Profession Blog for the information and link.
In this case, the attorney stipulated that he was incompetent, that he kept money that belonged to the client and that he entered into a business transaction with a client without fully disclosing the terms of the transaction. In other words, he stole money from the client and abused his position to take advantage of the client. The client had to go through the trouble of hiring another attorney to sue this attorney to recover the money the attorney had stolen. And the only mitigating circumstances apparently were that he had no prior disciplinary record and that he "cooperated with the bar’s investigation." In other words, that he confessed.
And for all this all he got was a 60-day actual suspension (plus probation for one year -- during which he can continue to practice, of course) and was ordered to take the MPRE within one year. What a joke!
The facts of the business transaction part of the misconduct are interesting: In lieu of attorney fees, the attorney accepted two Japanese military pieces, a helmet and a hand sword guard. Without obtaining an expert appraisal, the attorney and his client agreed the sword was valued at $1,500 and the helmet at $2,500 to $3,500.
Accepting things other than money as payment for services is not inherently wrong, but any such transaction is very well regulated by the rules of professional conduct. The transaction has to be clear and fair. In this case, in violation of the rules of professional conduct, the attorney did not advise the client to seek independent legal advice or put the terms of the arrangement in writing.
For the full story and links, go here.
Thursday, September 3, 2009
Now comes a new example of the problem. The Legal Profession Blog is reporting today that the District of Columbia Court of Appeals has disbarred a lawyer for his cumulative conduct over more than ten years evincing 'non-negligent misappropriation and dishonesty...' and other misconduct. The opinion is available here.
Ten years!? It took ten years of misappropriation and dishonesty to get rid of this guy?!
But wait a minute, they did disbar him; so what am I complaining about?
Well, here it is: the lawyer in this case had already been disciplined (back in 2001) for similar conduct. At that time, the hearing committee recommended disbarment but the Board on Professional Responsibility and the Court rejected that recommendation in favor of a mere six-month suspension. Way to set a great example with a nice slap on the wrist, guys! Much good it did. And so a lawyer was allowed to continue to engage in misconduct for another 8 years.
Now, "right on cue", Law.com is reporting today that a prominent New Jersey personal injury lawyer was fined $5,000 for sending solicitation letters to families of passengers killed in the February crash of commuter jet in Buffalo, N.Y. A federal statute bars unsolicited contacts by lawyers with victims or their families within 45 days of an air-carrier accident. [See full text of letter here.] Go here for the full story.
Also note that back in February I discussed the waiting period provision in New York also in the context of the Buffalo plane crash. See here.