April 24, 2017

Judicial Ethics Opinion Released Regarding Judges Contacting Political Representatives

On Tuesday, April 4, 2017, the Colorado Judicial Ethics Advisory Board released C.J.E.A.B. Opinion 2017-01.

Opinion 2017-01 considers whether a judge may contact his or her federal congressional representatives to express approval or dissatisfaction with federal legislation or cabinet appointments if the judge reveals his or her name but not that he or she is a judge. The Colorado Judicial Ethics Advisory Board determined that a judge may do so only in the narrowest of circumstances. The Board found that such contact would appear to implicate the judge’s personal opinions, which would likely amount to impropriety or the appearance of impropriety.

The Board, citing Rule 3.2 of the Code of Judicial Conduct, noted that the judge is permitted to consult with government officials in connection with matters concerning the law, the legal system, or the administration of justice or in connection with matters about which the judge acquired knowledge or expertise in the course of the judge’s judicial duties, as long as the consultation does not violate other provisions of the Code.

For the full text of C.J.E.A.B. Opinion 2017-01, click here. For all of the C.J.E.A.B. opinions, click here.

Colorado Court of Appeals: Attorney in Malpractice Case Must Raise Collectibility as Affirmative Defense

The Colorado Court of Appeals issued its opinion in Gallegos v. LeHouillier on Thursday, March 23, 2017.

Legal MalpracticeBurden of ProofCollectabilityAffirmative Defense.

Plaintiff Gallegos sued defendants LeHouillier, an attorney, and his law firm, LeHouillier & Associates, P.C. (collectively, LeHouillier), for legal malpractice. The jury found that LeHouillier had negligently breached his duty of professional care when handling an underlying medical malpractice case for Gallegos. The trial court placed the burden on Gallegos to prove that any judgment in the underlying case was collectable, and it ruled that Gallegos had provided sufficient evidence to prove that point, entering judgment in her favor.

On appeal, LeHouillier contended that the judgment must be reversed because collectibility is an element that a plaintiff must prove in a legal malpractice case, and Gallegos did not prove that any judgment that she would have received in the underlying malpractice case would have been collectible. Gallegos countered that the issue of collectibility is an affirmative defense and the court should have required LeHouillier to prove that the judgment was not collectible. The Court of Appeals determined that the record did not contain sufficient evidence that the judgment was collectible. In addition, the trial court erred when it placed the burden on Gallegos to prove that any judgment in the underlying medical malpractice case would have been collectible; it should have required LeHouillier (1) to raise the question of collectibility as an affirmative defense and (2) to prove that any judgment Gallegos would have received would not have been collectible.

The judgment was reversed and the case was remanded for a new trial.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Independent Expenditure Committee Not Required to Disclose Donation to Pay Legal Fees

The Colorado Court of Appeals issued its opinion in Campaign Integrity Watchdog, LLC v. Colorado Republican Party Independent Expenditure Committee on Thursday, March 9, 2017.

Campaign Finance Laws—Independent Expenditure Committee.

Campaign Integrity Watchdog LLC (CIW) alleged that the Colorado Republican Party Independent Expenditure Committee (CORE) violated various campaign finance laws. CIW’s claims stemmed from two earlier campaign finance proceedings against CORE. An administrative law judge (ALJ) imposed a penalty of $200 against CORE in the first case, and in the second case, an ALJ imposed a $600 aggregate penalty and awarded $255 in costs. The Colorado Republican Party paid these amounts on CORE’s behalf. CORE did not disclose these payments on its periodic campaign finance disclosure reports. Around the same time, a private party paid $50,000 to a law firm to settle CORE’s legal expenses. CORE disclosed this payment as a “contribution” in its periodic campaign finance disclosure report.

CIW alleged that CORE did not comply with the disclosure requirements of Colo. Const. art. 28, the Fair Campaign Practices Act (FCPA), and the Colorado Secretary of State’s Rules Concerning Campaign and Political Finance. CIW maintained that the payments by the Republican Party should have been disclosed as “donations” or “contributions” and the payments should have been disclosed as “expenditures.” The ALJ granted CORE’s motion to dismiss the complaint for failure to state a claim under C.R.C.P. 12(b)(5).

On appeal, CIW again contended that CORE was required to report some payments as donations or contributions, and all payments as expenditures. CORE was not required to report some payments as donations because (1) the donations were not made for the purpose of an independent expenditure and so were not required to be reported; (2) the law requiring some entities to report contributions does not apply to an independent expenditure committee; and (3) the payments here were not expenditures under the relevant statutory and constitutional definitions.

The order was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Top Ten Programs and Homestudies of 2016: Ethics

The year is drawing to a close, which means that the compliance period is ending for a third of Colorado’s attorneys. Still missing some credits? Don’t worry, CBA-CLE has got you covered.

Today’s Top Ten Programs and Homestudies are all about ethics. In addition to the programs featured below, CBA-CLE has several interesting and informative books about ethics and professional responsibility, and many great programs and homestudies not listed here. Find out more at cle.cobar.org/Practice-Area/Ethics-Professional-Responsibility. And now, your featured presentation.

10. Ethics and Professionalism in the Practice of Law 2016
It’s time for the always popular annual Ethics and Professionalism Program. The Program that brings you CLE through legal “theater” presented by a distinguished panel of experts in an interactive format. This program presents ethical and professional situations through a carefully crafted series of interactive vignettes to give you the tools to improve the professionalism in your law practice. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 4 general credits, including 4 ethics credits.

9. Ethical Duties of Attorneys Serving on Nonprofit Boards
Lawyers are invited to join the boards of nonprofit corporations for a variety of reasons, the best of which relate to the judgment and analytical and communication skills lawyers may bring to bear. Service on nonprofit boards, however, often presents lawyers with irresistible opportunities to exercise their legal training, with potential ethical implications. This seminar will review the most troublesome of those ethical considerations, including issues relating to whether simply serving as a director can create a lawyer-client relationship, present conflicts of interest, or raise concerns regarding competence. Order the Video OnDemand here and the MP3 here. Available for 1 general credit, including 1 ethics credit.

8. Lawyers’ Duty of Candor to the Tribunal and Remedial Measures in Civil Actions and Proceedings
This program will address the prohibition against offering false evidence, the duty to take remedial measures, and the duty to correct false statements by the lawyer set forth in Rule 3.3 of the Colorado Rules of Professional Conduct. The program will address the knowledge and materiality elements of the Rule, the duration of the lawyer’s duties under the Rule, and the steps that the lawyer must take when confronted with this problem of material false evidence. These steps include remonstration with the client, withdrawal from the representation, and if withdrawal from the representation does not undo the effect of the false evidence, then further remedial measures sufficient to undo the effect of the false evidence. Order the Video OnDemand here and the MP3 here. Available for 1 general credit, including 1 ethics credit.

7. Information Security & Ethics for Solo/Small Firm Practitioners
Cybersecurity and data breaches seem to always be in the news. Increasingly, law firms are becoming victims of data breaches and even targets of sophisticated cyberattacks. Attorneys and commentators alike worry that law firms’ IT systems and tools may be a weak point in the protection of their clients’ sensitive and confidential information. This talk will explore attorneys’ ethical obligations to protect confidential client information in the IT context, and discuss the tools and practices solo and small-firm practitioners can leverage to better fulfill those obligations. Specifically, Colorado Rules of Professional Conduct 1.1, 1.4, 1.6 and 5.1 will be discussed. Order the Video OnDemand here and the MP3 here. Available for 1 general credit, including 1 ethics credit.

6. Managing Risks: Preventing Legal Malpractice 2016
Managing risks is an important way to prevent legal malpractice claims. This program will discuss avoiding accidental attorney-client relationships, such as when making conversation at parties or talking to friends and family; tech traps for practitioners; trends in legal malpractice, including rules, cases, and statutes; and the Top Ten Ethics Complaints. Each Homestudy includes a copy of the CBA-CLE book, Lawyers’ Professional Liability in Colorado, 2016 Edition. Please note the book will be provided in PDF. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 4 general credits, including 4 ethics credits.

5. Inadvertent Disclosure: Professional Liability Series
The problem of the inadvertent disclosure of communications or information that is privileged or protected is not new. However, the risk of such disclosures has increased dramatically in recent years as a result of rapid communication such as e-mail, and in the litigation context, with the production of large volumes of documents and information, especially electronically stored information. Consequently, the rules governing inadvertent disclosure have been evolving rapidly to keep up or catch up with the problem. Order the Video OnDemand here and the MP3 here. Available for 1 general credit, including 1 ethics credit.

4. Ethically Inspired Marketing: The Boundaries of Chasing Success / Ethics Lessons From the Trenches
Ethically Inspired Marketing: Every lawyer wants to have a great career, but only a few can transcend modest success and become a “rock-star lawyer.” In this program, Stuart Teicher explains how you can rise to the top by following a new paradigm he calls, “Ethically Inspired Marketing,” a concept based firmly in the rules of professional conduct. Since every push toward greatness has its limitation, Stuart will also educate us about the boundaries of chasing success. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 3 general credits, including 3 ethics credits.

Ethics Lessons From the Trenches: The scariest stories are those tales where responsible lawyers who care about acting in an appropriate manner get into disciplinary trouble. In this program, we learn about the common missteps that are made by otherwise responsible attorneys. After hearing this program you’ll embark upon your career as a safer, stronger attorney. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 3 general credits, including 3 ethics credits.

3. Staying Above the Line: Preventing Legal Malpractice 2016
This half-day program provides practitioners with practical tips to avoid legal malpractice in the litigation practice. Topics covered include intra-firm privilege, trends in legal malpractice cases and statutes, preservation and spoliation of evidence, federal rules update, and more. Each attendee receives a PDF e-Book copy of the CBA-CLE book Lawyers’ Professional Liability in Colorado, 2016 Edition. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 4 general credits, including 4 ethics credits.

2. Ethics 7.0 2016
Practice at your very best. Attend this program and get the latest information on a wide variety of legal ethics issues. Your distinguished faculty will address current, common and challenging ethical issues you routinely encounter, or will encounter at some point in your practice years. At the end of the day, you will know both the conduct that will gain you respect, and the pitfalls that will jeopardize your practice. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 7 general credits, including 7 ethics credits.

1. Annual Ethics Revue at Lannie’s Clocktower Cabaret
Much anticipated and annual, “The Ethics Revue”, is unlike any other CBA-CLE continuing legal education ethics program. It is produced and performed by members of the famous (or infamous!) Law Club and the Ethics Committee of the Colorado Bar Association. Each year, it is an all new CLE musical extravaganza. Attend a performance and learn ethical conduct in an engaging and memorable way. With a unique combination of wit, song, and commentary, the cast of multi-talented attorneys will heighten your awareness of a variety of ethics issues, which arise in the practice of law. This live-only program occurs each year in November, and is the can’t-miss ethics event of the year. Look for this great event in November 2017.

Ethical Issues for Lawyers Serving on Nonprofit Boards

nonprofitLawyers are invited to join the boards of nonprofit corporations for a variety of reasons, the best of which relate to the judgment and analytical and communication skills lawyers may bring to bear. Service on nonprofit boards, however, often presents lawyers with irresistible opportunities to their exercise their legal training, with potential ethical implications.

One of the primary ethical concerns for attorneys serving on nonprofit boards is whether the attorney is perceived as representing the organization or actually represents the organization. Lawyers serving on nonprofit boards must take care to avoid establishing an accidental attorney-client relationship. If a lawyer does not want to enter into an accidental attorney-client relationship, he or she would be wise to make it clear from the beginning of his or her service, perhaps in writing, that there is no attorney-client relationship. Similarly, attorneys serving on nonprofit boards should emphasize their roles to the other board members.

Conflicts of interest are another ethical pitfall for attorneys serving on nonprofit boards. The lawyer’s independent professional judgment may be compromised by his or her obligation to respect the conduct of the organization regardless of whether that conduct complies with the Colorado Rules of Professional Conduct. There is also the potential for conflict between the organization and the attorney’s law firm.

Although serving on boards of directors for nonprofit organizations presents unique ethical concerns, attorneys provide valuable contributions to boards. Good practices, such as clarifying the lawyer’s role before beginning board service or refraining from voting on issues involving the lawyer’s firm, can help avoid ethical dilemmas.

Ericka Houck Englert, Of Counsel at Davis Graham & Stubbs, will present a one-hour lunch program on December 20, 2016, to discuss ethics for attorneys sitting on nonprofit boards. Register by calling (303) 860-0608, or click the links below.

 

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CLE Program: Ethical Issues for Attorneys Serving on Nonprofit Boards

This CLE presentation will occur on December 20, 2016, at the CBA-CLE offices (1900 Grant Street, Third Floor), from 12 p.m. to 1 p.m. Register for the live program here or register for the webcast here. You may also call (303) 860-0608 to register.

Can’t make the live program? Order the homestudy here: MP3Video OnDemand.

Privileges and Confidentiality in the Attorney-Client Relationship

EthicsConfidentiality is one of the cornerstones of the attorney-client relationship. It allows clients to feel comfortable discussing sensitive issues with their attorney without fear of disclosure. Colorado Rule of Professional Conduct 1.6 provides, “A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted [in certain enumerated circumstances].” The counterpoint to this is the privilege that protects attorney-client communications. The attorney-client privilege in Colorado is governed by C.R.S. § 13-90-107(1)(b), which states, “An attorney shall not be examined without the consent of his client as to any communication made by the client to him or his advice given thereon in the course of professional employment.”

These seemingly straight-forward rules have many nuances, including the scope of confidentiality versus the attorney-client privilege, the lawyer’s responsibility to reveal information to prevent a client’s misconduct, the lawyer as witness, the lawyer’s duty to prevent the disclosure of client information, and the extension of the attorney-client privilege to others in the attorney’s office.

The Colorado Bar Association Ethics Committee has tackled some of these issues in Formal Opinion 108, “Inadvertent Disclosure of Privileged or Confidential Documents,” and Formal Opinion 90, “Preservation of Client Confidences in View of Modern Communications.” As this guidance suggests, attorneys must always be aware of when issues of privileges and confidentiality may arise in their practices.

At 8:30 am on Wednesday, December 14, 2016, attorney John Palmeri will discuss the intricacies of privileges and confidentiality in one-hour CLE program co-sponsored by the CBA Lawyers Professional Liability Committee. Attendees will also receive a copy of Mr. Palmeri’s chapter inLawyers’ Professional Liability in Colorado with further discussion of the topic. Register here or by clicking the links below.

 

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CLE Program: Privileges and Confidentiality

This CLE presentation will occur on December 14, 2016, at the CBA-CLE offices (1900 Grant Street, Third Floor), from 8:30 to 9:30 a.m. Register for the live program here or register for the webcast here. You may also call (303) 860-0608 to register.

Can’t make the live program? Order the homestudy here: MP3Video OnDemand.

Rule Change 2016(12) Released, Amending the Colorado Rules of Professional Conduct

On Thursday, December 1, 2016, the Colorado Supreme Court issued Rule Change 2016(12), amending the Comment to Rule 2.1 of the Colorado Rules of Professional Conduct. Comment [2] of Rule 2.1, “Advisor,” was changed by the addition of a sentence regarding allocations of parental responsibilities:

[2] Advice couched in narrow legal terms may be of little value to a client, especially where practical considerations, such as cost or effects on other people, are predominant. Purely technical legal advice, therefore, can sometimes be inadequate. In a matter involving the allocation of parental rights and responsibilities, a lawyer should consider advising the client that parental conflict can have a significant adverse effect on minor children. It is proper for a lawyer to refer to relevant moral and ethical considerations in giving advice. Although a lawyer is not a moral advisor as such, moral and ethical considerations impinge upon most legal questions and may decisively influence how the law will be applied.

For the full text of Rule Change 2016(12), click here. For all of the Colorado Supreme Court’s adopted and proposed rule changes, click here.

Candor to the Tribunal and the Duty of Confidentiality: How to Broach This Ethical Pitfall

qtq80-uSztbKRule 3.3 of the Colorado Rules of Professional Conduct provides that a lawyer shall not “make a false statement of material fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer” or “fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.” But what exactly does this mean in the everyday practice of attorneys in Colorado?

Suppose the lawyer faces a client who intends to give false testimony or who refuses to correct a misstatement. What is material? May or must the lawyer withdraw from representation? Must the lawyer take further remedial measures? What must the lawyer do in an ex parte situation? In sum, how must the lawyer balance his or her duties to the client (particularly the attorney-client privilege) and the tribunal?

The Colorado Bar Association Ethics Committee addressed these questions in Formal Opinion 123, “Candor to the Tribunal and Remedial Issues in Civil Proceedings.” Opinion 123 requires the attorney to first remonstrate with the client. If that is unsuccessful, the attorney may be required to withdraw from representation. As a final measure, the attorney may make disclosure to the tribunal under certain circumstances. However, “the disclosure to remedy such a false statement must be limited to the extent reasonably necessary to achieve such ends and must be made in the manner that is the least harmful to the client while satisfying the commands of Colo. RPC 3.3.”

At noon on Tuesday, December 6, 2016, attorney Paul Gordon will delve into the intricacies involved with Colo. RPC 3.3 in a timely one-hour CLE. Mr. Gordon will bring his expertise in representing plaintiffs in malpractice claims against lawyers throughout the United States. Attendees will also receive a copy of Mr. Gordon’s chapter in Lawyers’ Professional Liability in Colorado with further discussion of the topic. Register here or by clicking the links below.

 

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CLE Program: Lawyers’ Duty of Candor to the Tribunal and Remedial Measures in Civil Actions and Proceedings

This CLE presentation will occur on December 6, 2016, at the CBA-CLE offices (1900 Grant Street, Third Floor), from noon to 1 p.m. Register for the live program here or register for the webcast here. You may also call (303) 860-0608 to register.

Can’t make the live program? Order the homestudy here: MP3Video OnDemand.

Colorado Judicial Ethics Advisory Board Releases Two New Opinions

On Monday, November 14, 2016, the Colorado Judicial Ethics Advisory Board released two new opinions.

CJEAB Opinion 2016-02 answers a judge’s question regarding whether Opinion 2007-07 remains effective in light of the repeal and reenactment of the Colorado Code of Judicial Conduct, and whether the judge may serve on the board of directors for the Joint Initiatives for Youth and Families of the Pikes Peak Region, since the operation of the board of directors has changed. The Judicial Ethics Advisory Board evaluated Opinion 2007-07 and determined it was no longer applicable, consequently withdrawing the opinion. The Judicial Ethics Advisory Board then concluded that a judge may serve on the board of directors of the Joint Initiatives for Youth and Families of the Pikes Peak Region, even if the board engages in legislative advocacy benefitting children and families, provided that doing so would not lead to his frequent disqualification or otherwise interfere with his ability to perform his judicial duties.  The judge must ensure that his activities as a board member do not undermine his impartiality, give rise to the appearance of impropriety, or violate other provisions of the Code.

CJEAB Opinion 2016-03 answers a judge’s question regarding whether it is permissible for him to sit on the Board of Trustees of the Colorado PERA. The Judicial Ethics Advisory Board determined that a judge elected to sit on the Board of Trustees of Colorado PERA should abstain from participating as a panelist in PERA’s administrative hearing process because such participation constitutes arbitration or another judicial function outside of a judge’s official duties and violates the Code of Judicial Conduct.

For all of the Colorado Judicial Ethics Advisory Board opinions, click here.

Inadvertent Disclosure — Damage Control, Recipient Requirements, and More

EthicsInadvertent disclosure of privileged or confidential information is not a new problem for attorneys. However, email and the electronic age have widened the scope of inadvertent disclosure. What happens when you use your email’s auto-fill feature and accidentally fill opposing counsel’s name instead of your client’s? How about when you hit “Reply All” instead of only replying to one party, or when you reply instead of forwarding? These problems are the stuff of nightmares.

To address the problems created by inadvertent disclosure of privileged or confidential information, the Colorado Bar Association Ethics Committee created Formal Opinion 108, adopted on May 20, 2000. Formal Opinion 108 contemplates that a lawyer who receives documents (“receiving lawyer”) from an adverse party or an adverse party’s lawyer (“sending lawyer”) has an ethical duty to disclose the receipt of the privileged or confidential documents to the sending lawyer. If the receiving lawyer realizes the inadvertence of the disclosure before examining the documents, the receiving lawyer has a duty to not examine the documents and follow the sending lawyer’s directions regarding disposal or return of the documents.

In 2008, the Colorado Supreme Court repealed and reenacted the Colorado Rules of Professional Conduct. Rule 4.4(b) provides that “A lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.” Rule 4.4(b) applies to situations in which the sending lawyer accidentally provides privileged or confidential information to the receiving lawyer, such as when someone hits “Reply All” instead of forwarding to the client.

Rule 4.4(c) addresses a far less common scenario, when the sending lawyer realizes the disclosure prior to receipt by the receiving lawyer and contacts the receiving lawyer before the privileged or confidential information is viewed. Rule 4.4(c) requires the receiving lawyer to “abide by the sender’s instructions as to its disposition.” Comments [2] and [3] to Rule 4.4 expand on the receiving lawyer’s duties, including providing that as a matter of professional courtesy the receiving lawyer may inform the sending lawyer of the inadvertent disclosure.

Colorado Rule of Civil Procedure 26(b)(5)(B) also addresses inadvertent disclosure. C.R.C.P. 26(b)(5)(B) imposes on the receiving lawyer a mandatory prohibition on review, use, or disclosure of the information until the privilege claim is resolved, if the sending lawyer informs the receiving lawyer of the inadvertent disclosure. C.R.C.P. 26(b)(5)(B) differs slightly from Fed. R. Civ. P. 26(b)(5)(B); lawyers who practice in both federal and state courts should familiarize themselves with the different rules.

On Monday, November 28, 2016, attorney Cecil E. Morris, Jr., will deliver a lunchtime presentation on inadvertent disclosure, which is available for one general CLE credit and one ethics credit. This program is a great way to learn about what to do in case you inadvertently disclose confidential or privileged information, and also what to do if you receive information inadvertently disclosed. Cecil will discuss the differences between the federal and state rules, and will also address the substantive areas of law most affected by inadvertent disclosure. Register here or by clicking the links below.

 

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CLE Program: Inadvertent Disclosure – Professional Liability Series

This CLE presentation will occur on November 28, 2016, at the CBA-CLE offices (1900 Grant Street, Third Floor), from 12 p.m. to 1 p.m. Register for the live program here or register for the webcast here. You may also call (303) 860-0608 to register.

Can’t make the live program? Order the homestudy here: MP3Video OnDemand.

Rule Change 2016(11) Adopted, Amending Colorado Rules of Professional Conduct

On Thursday, November 3, 2016, the Colorado Supreme Court adopted Rule Change 2016(11), affecting the Colorado Rules of Professional Conduct. The rules affected are Rule 1.15A, “General Duties of Lawyers Regarding Property of Clients and Third Parties,” Rule 1.15B, “Account Requirements,” and Rule 1.15D, “Required Records.”

A new comment [7] was added to Rule 1.15A to define “reasonable efforts” to find owners of property and explain that it is context-specific. The comment lists several potential scenarios and what would constitute “reasonable efforts” in those cases.

Rule 1.15B was changed by the addition of subsection (k), which also addresses procedures a lawyer should follow when he or she has unclaimed funds in his or her COLTAF account.

Rule 1.15D was changed by the addition of a new subsection (a)(1)(C), which specifies procedures for remitting unclaimed funds to COLTAF.

For a redline and clean version of the rule change, click here. For all of the Colorado Supreme Court’s adopted and proposed rule changes, click here.

Ask the Experts: Why Do Lawyers Get Sued?

EthicsThe ABA Standing Committee on Lawyers’ Professional Liability compiled a comprehensive Profile of Legal Malpractice Claims, evaluating claims from 2008 through 2011. According to the Committee’s report, real estate lawyers held the dubious honor of having the highest percentage of malpractice claims, followed by family law, trust and estate, and personal injury law. Forty-five percent of all malpractice claims were filed due to substantive errors, like failure to know or properly apply the law, discovery errors, procedural choice errors, missing deadlines, and conflicts of interest. Administrative errors counted for the second-highest reason for claims, including procrastination in performance or follow-up (read: not returning phone calls), lost files, calendaring errors, and other clerical errors. Together, nearly three-quarters of all legal malpractice claims filed during the Committee’s study period were due to errors. That is a frightening statistic.

One way to avoid becoming the subject of a malpractice claim is to choose clients carefully. Everyone has experienced “problem” clients—clients who won’t leave you alone, who lack the ability to pay, and who seem to criticize your every move. Attorney Sally Field (no relation to the actress) compiled a list of the top ten warning signs for problem clients:

  1. Clients who want to change lawyers in the middle of the case;
  2. Clients who trash the lawyer they just left;
  3. Clients who are reluctant to answer basic questions;
  4. Clients who are overly opinionated about the law without justification;
  5. Clients who have unreasonable expectations;
  6. Clients who micromanage everything;
  7. Clients who won’t let you end an excessively long initial client interview;
  8. Clients who want to exact revenge or punishment through the legal system;
  9. Clients who make negative comments about judges, courts, and the judicial system; and
  10. Companies with unusually high turnover of key staff or unusual corporate structures.

Bottom line? Many potential malpractice claims can be avoided by refusing to represent those clients who seem like trouble from the outset. Avoiding mistakes is helpful, too.

Sally Field, along with John Palmeri, will discuss common reasons for lawyer malpractice lawsuits in a panel discussion moderated by Heather Kelly. Join us for this interesting and informative breakfast CLE on Tuesday, September 27, 2016. Call (303) 860-0608 to register, or click the links below.

 

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CLE Program: Why Lawyers Get Sued

This CLE presentation will occur on September 27, 2016, at the CBA-CLE offices (1900 Grant Street, Third Floor), from 8:30 a.m. to 9:30 a.m. Register for the live program here or register for the webcast here. You may also call (303) 860-0608 to register.

Can’t make the live program? Order the homestudy here: MP3Video OnDemand.