Category Archives: Lawyer negligence

The client is missing and the statute of limitations expires soon:  what can or must a lawyer do?

Hello everyone and welcome to this Ethics Alert, which will discuss the ethics issues when a client is missing (or refuses to communicate) and the statute of limitations is about to expire.  I have been asked this question (or a variation of it) many times in my over 30 years of practice and I have provided guidance to lawyers.  Florida Bar Ethics Opinion 72-36 RECONSIDERATION) July 1, 1987 addresses this issue and the opinion is here: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-72-36-Rec.pdf

In the initial Ethics Opinion 72-36 (published in 1972), the facts were that “the inquiring attorney was retained by his client under a contingent fee contract in a personal injury matter. The client disappeared sometime after retaining the attorney and before suit was filed. Two years passed and, despite his diligent efforts, the attorney was unable to locate the client. The attorney asked whether he was ethically obligated to file suit before the limitations period expired.”

The initial opinion stated that “the attorney’s duty of zealous representation required him to take whatever action was necessary to prevent loss of the client’s rights due to the passage of time. Specifically, the attorney was obligated to file suit unless he could obtain the opposing party’s agreement to waive the statute of limitations.”  Emphasis supplied.

After the Florida Ethics Opinion was published in 1972, ABA Informal Opinion 1467 was published, which stated that the ABA Committee on Ethics and Professional Responsibility had determined that an attorney has no duty to file suit to toll the statute of limitations if the client’s unavailability was not caused by the attorney’s neglect.

After the ABA Informal Opinion was published, the Florida Bar’s Professional Ethics reconsidered Ethics Opinion 72-36.  After reviewing the facts and Informal Opinion 1467, the committee stated:

“The Committee is now in accord with the conclusions reached in ABA Informal Opinion 1467. There, the attorney’s reasonable efforts to locate the client had been unsuccessful and the attorney believed there was no reasonable likelihood that the client would return. The ABA Committee on Ethics and Professional Responsibility determined that the attorney had no duty to file suit to toll the statute of limitations if the client’s unavailability was not caused by the attorney’s neglect. The ABA committee further stated that it was not improper for an attorney to include in his employment agreement a provision requiring the client to promptly notify the attorney of any change in address and providing that, if the client failed to so notify the attorney, the attorney was not obligated to proceed with the case.

In view of ABA Opinion 1467, the Professional Ethics Committee is now of the opinion that an attorney whose client cannot be located despite the attorney’s reasonable efforts is not obligated to file suit to toll the running of the statute of limitations if the client’s unavailability is not caused by the attorney’s neglect or inaction (see Rule 4-1.3, Rules Regulating The Florida Bar, requiring an attorney to act with reasonable diligence and promptness in representing a client) and: (1) the attorney believes there is no reasonable chance the client will return; or (2) the client’s unavailability is a breach of the attorney-client employment agreement. However, even in these situations it would not be unethical for the attorney to file suit in order to toll the statute of limitations.”

The executive summary of Ethics Opinion 72-36 (RECONSIDERATION) states:  “A lawyer retained for litigation by a client who has since disappeared is not obligated to file suit to toll the running of the statute of limitations if the lawyer has made a reasonable effort to locate the client and the client’s unavailability is not the result of neglect on the part of the lawyer.”

Bottom line:  Although ethics opinions are for guidance only and are not binding, the Florida Ethics Opinion (and the ABA Informal Opinion) makes it clear that al lawyer is not required to file a lawsuit on behalf of a client when the client is unavailable and cannot be located, even if the statute of limitations will run; however, the lawyer is also not ethically prohibited from filing the lawsuit.

Be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2999 Alt. 19, Suite A

Palm Harbor, Florida

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Please note:  My office has moved and the new office address is 2999 Alt. 19, Palm Harbor, FL 34683.  All other contact information remains the same.

Joseph Corsmeier

about.me/corsmeierethicsblogs

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Filed under ABA Informal Opinion 1467- filing lawsuit when client is missing, Attorney Ethics, Florida Bar, Florida Bar Ethics Opinion 72-36 - filing lawsuit when client is missing, joe corsmeier, Joseph Corsmeier, Lawyer diligence, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer negligence, Uncategorized

California ethics opinion addresses issues related to a lawyer accepting damaging document provided by a witness

Hello everyone and welcome to this Ethics Alert, which will discuss the recent California ethics opinion which addresses ethics issues related to accepting a damaging document provided by an individual (witness).  The ethics opinion is Los Angeles County Bar Association (LACBA) Ethics Opinion 531 (July 24, 2019) and is here: https://www.lacba.org/docs/default-source/ethics-opinions/archived-ethics-opinions/ethics-opinion-531.pdf

The detailed opinion sets forth the scenario when a lawyer is offered access, by a witness who is an unrepresented former employee of the opposing party, to potential documentary evidence and is advised that it will show the adverse party’s failure to comply with discovery obligations.  The opinion discusses whether the lawyer can and/or should ethically use the document and “the ethical risks and potential adverse consequences of taking possession or reviewing the material are significant” when there is “reasonable cause” to believe that the document contains protected or privileged information.

According to the opinion, the lawyer must first determine whether the individual violated the law by obtaining or possessing the materials.  If the lawyer does not have the competence to make that decision, he or she should consult with another lawyer who has knowledge of criminal law. If a law was violated and the lawyer obtains the document, he or she may be ethically required to turn over the document to the court or to the appropriate legal authorities.

The lawyer should also address whether the document or data includes material that is subject to protection under the attorney-client privilege, confidentiality, or the attorney work-product doctrine. If it becomes “reasonably apparent” to the lawyer that the documents are privileged, the lawyer would be ethically obligated to stop reviewing the document and provide notice to the privilege holder, the owner of the work product, or their counsel.

The lawyer should also keep the client informed when receiving the evidence is a significant development or if it limits the actions that the lawyer is able to take and the lawyer may be required to inform the client about the impact of any dispute over entitlement to the evidence, including the potential financial impact, including legal costs, and potential delay.  The lawyer should also consider other issues to be reviewed and discussed with the client, which would include the possibility of the lawyer being disqualified from the case and possible sanctions that could adversely affect the client’s case.

Bottom line: This California ethics opinion provides a good overview of the ethical issues (i.e. minefields) which are present when an individual tries to provide the lawyer with an alleged “smoking gun” document and discusses what the lawyer should do to protect him or herself ethically.

Be careful out there.

Disclaimer: this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

29605 U.S. Highway 19 N. Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Joseph Corsmeier

about.me/corsmeierethicsblogs

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Filed under Attorney Ethics, attorney/client privilege, California Ethics Opinion accepting damaging document from witness, Ethical duties using potentially improperly obtained document, joe corsmeier, Joseph Corsmeier, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer ethics opinions, Lawyer lack of competence, Lawyer lack of diligence, Lawyer negligence, Uncategorized

Maine Supreme Court holds that competent and expert testimony is required to prove causation in legal malpractice actions

Hello everyone and welcome to this Ethics Alert which will discuss the March 21, 2017 opinion of the Maine Supreme Court which held that expert testimony that is not based on supporting facts in the record was insufficient to prove that a lawyer’s alleged negligence caused the plaintiff’s injury.  In addition, a “corrected affidavit” which contradicts the expert’s clear deposition testimony is insufficient.  The case is Brooks v. Lemieux, 2017 ME 55 (Maine Supreme Judicial Court March 21, 2017) and the opinion is here:  http://www.courts.maine.gov/opinions_orders/supreme/lawcourt/2017/17me55br.pdf.

The former client/malpractice plaintiff in the underlying matter (Brooks) retained the lawyer/malpractice defendant (Lemieux) after he unsuccessfully grieved his termination from Bath Iron Works (BIW) and his failure to attend arbitration.  Brooks was a long-time union employee and, after the union voted not to assist Brooks to arbitrate his grievance, Brooks hired Lemieux.  In February 2007, Brooks filed a complaint against the union and BIW in federal district court for breach of the collective bargaining agreement and discrimination.

After the union and BIW moved for summary judgment, Lemieux failed to timely file opposing statements of material fact, and summary judgment was granted against Brooks. The magistrate granted the motion and noted that Lemieux had failed to cite to record evidence in the statement of facts refuting the opposing statement of facts, resulting in their admission.

Brooks then sued Lemieux for legal malpractice, alleging that the lawyer fell below the standard of care by failing to: (1) timely file responses to statements of material fact supporting summary judgment, (2) follow a local rule governing statements of fact, (3) obtain affidavits from witnesses and (4) conduct adequate discovery.

The trial court granted summary judgment in Lemieux ‘s favor in the malpractice matter, finding that Brooks had failed to prove causation because he failed to identify what evidence Lemieux should have cited, affidavits that he should have obtained, and what discovery he should have conducted.  This resulted in the fact-finder having to speculate as to any causal link between the alleged negligence and the injury, and failed to submit admissible expert testimony on causation.

The trial court refused to consider Brooks’ expert’s corrective affidavit on causation, which contradicted that expert’s earlier deposition testimony.  Relying on a Maine case, the trial court held that the contradictory affidavit could not create a disputed issue of material fact given the expert’s clear and unambiguous answers in the deposition testimony.

Brooks appealed and argued that (1) the trial court applied the incorrect malpractice standard, (2) expert testimony was not required, (3) causation presents a jury question, and (4) plaintiff’s expert’s affidavit established prima facie evidence of causation.

The Maine Supreme Judicial Court Brooks found that Brooks failed to set  forth prima facie evidence of causation to support his claims, and that the trial court properly granted summary judgment in favor of Lemieux.  The opinion rejected the argument that an incorrect standard was applied since Lemieux did not fail to timely plead in the underlying case and cause Brooks’ opportunity before the fact-finder to be lost.  The opinion also found that there was insufficient expert testimony to establish that Brooks would have prevailed but for Lemieux’s alleged negligence since the expert’s deposition testimony and “corrected affidavit” created a clear contradiction, not merely a discrepancy.

According to the opinion, the trial court improperly refused to consider the contradictory affidavit; however, the error was harmless since the affidavit was deficient for summary judgment purposes. The affidavit also provided only conclusory statements that Lemieux breached the standard of care without citing to facts which connect the alleged negligence to the injury; therefore, without competent evidence of negligence, a fact-finder could only speculate about causation (which requires a showing that the plaintiff would have prevailed in the underlying litigation but for the defendant’s alleged negligence); therefore, the expert opinion was insufficient. Pursuant to the above, the opinion affirmed the summary judgment in favor of Lemieux.

Bottom line:  This opinion found that an expert retained by the plaintiff in a legal malpractice matter cannot provide a conclusory opinion that a lawyer failed to meet the standard of care but must cite “to facts which connect the alleged negligence to the injury.”  In addition, the “corrected affidavit” by an expert which contradicts the expert’s clear testimony in a deposition created a clear contradiction, not merely a discrepancy, and was inadequate to prove causation.

Be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

29605 U.S. Highway 19, N., Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

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Filed under joe corsmeier, Joseph Corsmeier, lawyer malpractice expert witness, lawyer malpractice sufficiency of evidence expert testimony, Lawyer negligence, legal malpractice negligence, legal malpractice standard of care

New Jersey lawyer receives censure for neglecting client matters, failing to communicate with clients, and fraud and dishonesty

Hello everyone and welcome to this Ethics Alert which will discuss the recent New Jersey Supreme Court Order which adopted the findings of the New Jersey Disciplinary Review Board and censured a lawyer for neglecting client matters, failing to communicate with clients, and engaging in conduct involving fraud or dishonesty.  The case is In The Matter of John R. Dusinberre, D-37 September Term 2015 078531 (Supreme Court of New Jersey April 5, 2017).  The New Jersey Supreme Court Order is here:  http://drblookupportal.judiciary.state.nj.us/DocumentHandler.ashx?document_id=1082216 and the Disciplinary Board (DRB) Decision dated November 9, 2016 is here:  http://drblookupportal.judiciary.state.nj.us/DocumentHandler.ashx?document_id=1077667

According to the DRB Decision, the lawyer was charged with violating Bar rules in four separate matters:

“In the first matter, respondent represented Anthony Domenick and 407-409 Summer Associates, LLC for a Paterson condominium development known as ‘Sandy Hill at Summer Street.’ The terms of the representation called for respondent to file a public offering statement (POS) with the New Jersey Division of Community Affairs (DCA) and to record a master deed in the county clerk’s office. Respondent told his client that he had filed the POS with the DCA and furnished him with a copy of a November 12, 2007 POS carrying registration number ‘04368.’ Respondent stipulated that he never filed a POS with the DCA. Rather, he had fabricated the POS and created a fictitious registration number; the DCA had never assigned a registration number to the Sandy Hill project. Although respondent also failed to record the master deed, he either informed his client, or led him to believe, that he had done so.

“In a second matter, respondent represented a client identified only as ‘Mr. Cerquirra’ and ‘88 St. Francis LLC’ regarding a condominium development project at 88 St. Francis Street in Newark. The representation required respondent to register the project with the DCA and to obtain a registration order. Respondent informed the client that he had obtained a registration order for the project from the DCA. He also gave the client an October 27, 2008 letter, purportedly from DCA’s Manager of the Planned Real Estate Department, Stewart P. Pallonis. Enclosed with that letter was an order of registration from the DCA carrying registration number 04487, and signed ‘Stewart P. Pallonis.’  In fact, respondent never registered the 88 St. Francis Street project with the DCA. Rather, he had fabricated both the Pallonis letter and the registration order, signing Pallonis’ name to both documents before giving them to the client.

“In a third matter, respondent represented Sterling Properties (Sterling) for a Cedar Knolls condominium project known as ‘Viera at Hanover.’ The representation required respondent to register the project with the DCA, but he failed to do so. Respondent, nevertheless, led Sterling to believe that he had registered the project with the DCA, knowing that he had not done so. In reliance on respondent’s false information, Sterling went forward with the project.

“In a fourth matter, respondent represented Sterling for another condominium project in Piscataway. That representation, too, required respondent to register the project with the DCA. Again, respondent failed to do so. Respondent led Sterling to believe that the Piscataway project, too, was registered with the DCA, knowing that it was not. Relying on respondent’s statements, Sterling proceeded with the development project.”

“During respondent’s entire thirty-four-year career at MSLD, he reported to Barry Mandelbaum, the managing attorney, and twelve years his senior. Respondent described Mandelbaum as a “benevolent despot” and a “mentor.” Respondent was never “encouraged” to generate business for the firm. Rather, he tended to work on legal matters that Mandelbaum generated.

“Respondent described his relationship with Mandelbaum as a stressful one. Mandelbaum would berate respondent publicly, place notes on respondent’s door about perceived failings, and subject him to ‘105 decibel,’ public ‘dress downs,’ all of which were extremely embarrassing.

“As the law firm grew larger, younger attorneys became partners. By the mid-2000s, some of those partners had come to expect respondent to complete work on projects that they had generated, placing additional pressure on respondent to perform.

“Several years before respondent engaged in the within misconduct, MSLD established an executive committee to manage the law firm. Respondent perceived that the new arrangement rewarded some of the younger, income-generating attorneys, at his expense. Feeling exposed, he became “terrified” about losing his job. At that juncture, he grew even more reliant on Mandelbaum for protection:

So my desire and drive to please him became extremely strong. And I can’t tell you the number of times when I would have an issue with a client, I would hear the client five minutes later on the phone with Barry and then I would hear Barry’s footsteps stomping down the hall to basically dress me down or yell at me and to confront me, or whatever it might be very publicly.

And it was extremely upsetting and got to the point where I went from a lawyer who loved to go to work every day to a lawyer who dreaded pulling into the parking lot of my law firm, counting whose cars were in to try and decide whose work I should be doing that day so that I wouldn’t get yelled at or — or, you know, almost — I almost use the word bullied, although I’m an adult and was an adult at the time, and it’s a hard concept to have, but it’s the desperate situation I found myself in. (T20-10 to T21-2.)

“Worried about being ‘kicked out’ of MSLD, respondent felt tremendous pressure to complete tasks on time, according to schedules that other attorneys prepared for him. Also pressing was the fear that, because he was over sixty years old and had never been in another legal setting, he could not strike out on his own.”

The DRB Decision also found that the lawyer had no prior discipline, expressed remorse for his misconduct, and paid former clients, the firm and the DCA hundreds of thousands of dollars as restitution.  The DRB recommended a censure (which is a stronger sanction than a reprimand in New Jersey).  The New Jersey Supreme Court adopted that sanction and censured the lawyer.

Bottom line:  This case is unusual, to say the least.  Although the lawyer provided significant mitigation (including the serious “berating” by a supervising partner and “cracking under the pressure” of the partner’s criticism), his underlying misconduct, including his multiple false statements to clients, neglecting client matters and failing to communicate, would appear to be serious enough to merit a suspension, notwithstanding the mitigation that he provided.  The lawyer was in his 50’s and 60’s when the misconduct occurred. One could certainly conclude that the lawyer’s testimony about the “pressure” of the practice was somewhat of an excuse and not an explanation.

As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding ethics, risk management, or other issues, please do not hesitate to contact me.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

29605 U.S. Highway 19, N., Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

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