Legal Malpractice: An Ounce of Prevention Can Save You Benjamins

“Whether you want to admit it or not, the process has begun and the clock is already ticking.”

You've Got Mail (Just Not the Good Kind)You open your mail box. Flipping through the daily mail, you hope for a check and expect a few bills, but behind a glossy mailer and an annoying letter from opposing counsel, you find a certified letter--and it's from Office of Disciplinary Counsel. The letter advises that an ethics complaint has been filed against you. Whether you want to admit it or not, the process has begun and the clock is already ticking. This post explores what happens next.The Complaint- A complaint can be made by anyone and the mere fact of a complaint does not signify that it possesses merit. After a complaint is made, a screening process begins. At the point a letter finds its way into your mailbox, you will know that the ODC wants your side of the story. It is imperative that you respond and within the time delays allowed. Famously, Lincoln said that a lawyer who represents himself has “a fool for a client”-- you should strongly consider selecting counsel to represent you in the process.ODC Investigation- If a complaint is found to possess possible merit, the ODC will conduct an investigation. After the investigation, the ODC makes its recommendations from the following options:-Dismissal of the Complaint: A dismissal may be appealed;-Diversion: A diversion will allow the attorney to receive counseling, training, or assistance from the LSBA Practice Assistance and Improvements Committee in lieu of formal punishment;-Private Admonition: A private form of discipline used in cases of minor misconduct; or,-Formal Charges: The ODC must seek approval from a Hearing Committee chair to file formal charges.Formal Charges- If the ODC request for formal charges is approved, formal charges will be filed with the Louisiana Attorney Disciplinary Board. The ODC possesses a “clear and convincing” burden of proving an alleged ethical violation. The attorney has an opportunity to mount a defense before a Hearing Committee which will then issue a report and recommendation.Objections to Ruling- If an objection to the Committee’s ruling is raised, the matter will be heard before the Disciplinary Board. After briefs are filed and oral arguments made, the Board will make a recommendation which will then be filed with the Louisiana Supreme Court.Supreme Court – If either the attorney or the ODC objects to the recommendation of the Disciplinary Board, the Supreme Court will consider the matter after briefing and oral argument. The Supreme Court may reject the charges or issue sanctions to include: suspension, disbarment, or permanent disbarment.The rules set in place by the Supreme Court provide that formal charges against an attorney will be “deemed admitted” if no response is made within 20 days—even if the attorney otherwise had a meritorious defense. So, when you've got mail, the simple act of opening it may just save your career.Gracella Simmons’ practice includes defense of attorneys and law firms when professional liability claims are made and defense of attorneys in response to complaints made to the Office of Disciplinary Counsel.

Benjamin Franklin is famous for many things including his musing that “an ounce of prevention” is worth a “pound of cure.” While that truism applies to many aspects of life, it represents real-world reality when it comes to avoiding legal malpractice. When a few simple steps can avoid disaster, attorneys may want to spend a few “pennies” of their time and consider these steps.

“Meet or Beat” deadlines

Deadlines are not “suggestions” when it comes to law. Have in place a robust calendaring system and make sure your office is in compliance. This is one place where redundancy is not a bad thing.

Be smart

Remember that there are many good reasons not to take cases. The potential case may not involve an area of law with which you are familiar. You may not have adequate time or resources to properly devote to the case. Your history with the other parties or their counsel may not suggest the case as a good fit. Trust your instincts here. If you have meaningful reservations about taking the case, turn it down no matter how profitable it could prove to be.

Respect Your Clients

Do not ignore your client. Return your client’s phone calls. Keep the client informed. You work hard. Frequent communication with your client shows them that. They will be less likely to sue if they know you worked diligently on their behalf.

Document Your Work

More information is better than less. If you do not document your work, a client has cause to challenge the work you performed. Proper documentation also can diffuse the “he said, she said” trap attorneys often find themselves embroiled in after something has gone wrong.

Avoid Conflicts of Interest

Ensure that you have a comprehensive conflicts-check procedure. Failure to identify conflicts ahead of time can create unnecessary complexity. The rules allow waiver of many conflicts when they will not impact the representation.

Take Care of Yourself

Nothing can invite more disaster upon an attorney than substance abuse and/or debilitating stress. If either of these conditions apply to you, there are plenty of ways to get help-whether from friends, family members, or health care providers. You owe it to yourself, your family and your clients to address these issues. The Louisiana State Bar Association has created a Judges and Lawyers Assistance Program (JLAP) to help you through these issues. http://louisianajlap.com/

Thorough Research and Investigation

It’s not easy getting it right so spend the time it takes. Consult with others when you are not sure. Citing law that is no longer applicable is not only embarrassing but can affect your credibility. Judges remember lawyers who submit pleadings with improper or inadequate research.

Pursuing Unpaid Fees

Fully consider the ramifications when pursuing unpaid fees. Try to work it out. Clients have been known to find themselves suddenly dissatisfied with their representation when sued for an unpaid legal bill.

Benjamin Franklin is also known for his image plastered across the $100 bill. Putting in place reasonable procedures may keep more of them in your pocket.

Gracella Simmons’ practice includes defense of attorneys and law firms when professional liability claims are made and defense of attorneys in response to complaints made to the Office of Disciplinary Counsel.

Legal malpractice claims in Louisiana are governed by a peremption period that cannot be interrupted or suspended. La. R.S. 9:5605(A) provides that a legal malpractice claim must be brought one year from the date of the alleged malpractice, or within one year from the date the alleged malpractice should have been discovered. However, even when a claim is filed within one year of discovery, it must be filed within three years of the date of the alleged malpractice. If a party fails to assert a legal malpractice claim before the peremption period expires, the right to bring the claim is lost.

The Louisiana Supreme Court holds that “peremption commences to run in a legal malpractice case when a claimant knew or should have known of the existence of facts that would have enabled him to state a cause of action for legal malpractice.” In Crosby v. Waits, Emmett, Popp & Teich, LLC, the court recently examined the types of circumstances that should inform a plaintiff that an act of alleged malpractice occurred, which would trigger the peremptive period in which the plaintiff’s claim must be filed.

The plaintiff in Crosby owned 75% of a company and was in the process of buying out the minority stakeholder. The company was involved in litigation at the time. Initially, the minority stakeholder maintained all of the recovery and risk related to the suit. In April 2016, an attorney advised the plaintiff to accept an offer to split the recovery and risk in the suit 50/50 as part of the sale. The plaintiff then accepted the 50/50 offer. The litigation concluded after the sale, in February 2018, and resulted in an adverse judgment for which the plaintiff was responsible pursuant to the 50/50 agreement.

The plaintiff filed suit on February 12, 2019, within one year of the verdict in the underlying litigation, and claimed that its attorney committed malpractice when he advised that plaintiff accept the offer to split the recovery and risk in the suit. Specifically, it was alleged the attorney failed to examine the nature of the litigation or discover that the seller’s employees were aware the suit bore serious risk. The plaintiff’s representative testified that he did not keep track of the litigation and therefore could not have known the attorney engaged in the alleged malpractice until the jury rendered its verdict in the underlying suit.

However, the minority stakeholder testified that he knew the 50/50 offer was a bad deal for the plaintiff. Another employee testified he thought the risk of loss in the underlying suit was apparent to everyone involved. The court agreed. Based upon the evidence presented, “it should have been obvious to all concerned that the 50/50 option was favorable” to the minority stakeholder, who was adverse to the plaintiff’s interest.

The court held that the plaintiff should have known its attorney may have committed an act of malpractice when he advised it to accept the 50/50 split before the underlying litigation concluded. Accordingly, suit was not filed within one year of when the plaintiff should have known the alleged act of malpractice occurred. The plaintiff’s claims that it lacked such knowledge could not stand up to conflicting evidence. Thus, the claim was peremepted, and the plaintiff’s suit was dismissed.

Case References:

Crosby v. Waits, Emmett, Popp & Teich, LLC, 2022-0395 (La. App. 4 Cir. 11/21/22), 352 So. 3d 145.

Jenkins v. Starns, 2011-1170, p. 15 (La. 1/24/12), 85 So.3d 612, 621.