I highly recommend reading the text of Atul Gawande’s commencement address at Harvard Medical School. Mr. Gawande discusses the value of team-work for highly specialized professionals. Although addressed to doctors, there is resonance for attorneys and other professionals. The core issue in the address is that the training for the profession comes from a time when doctors could hold all of the information a patient needed in their head, but no doctor can do that with the breadth of knowledge in medicine today. As a result, the best care is given by teams of highly specialized practitioners who effectively communicate between themselves. Mr. Gawande, the author of the checklist manifesto, also emphasizes the efficacy of checklists. Some very good food for thought on how to be a better professional, and being a better professional is the first line of professional liability defense.
Archive for May, 2011
For those of us who practice professional liability defense in both states, two of the biggest differences between New Jersey and Pennsylvania are the statute of limitations and fee shifting. In Pennsylvania, the statute of limitations for professional liability actions is two years (or four years if sounding in contract). Pennsylvania also follows the “American Rule” for legal malpractice cases, meaning each side is responsible for their own fees and costs.
The New Jersey statute of limitations is six years. New Jersey also allows fee shifting in legal malpractice cases. The New Jersey State Bar has understandably sought to change this; however, previous attempts have failed. A new bill that would prevent fee shifting and change the statute of limitations for most professional liability actions to two years was introduced earlier this month. It is currently pending before the Regulated Professions Committee.
Last Thursday, I gave legal malpractice avoidance talks in Lackawanna and Luzerne Counties. As I was coming to the end of the second talk, it occurred to me that most of the substance of the talk could be condensed into one principle, one phrase and one habit. I offer them to you as today’s quick tip:
Principle: The “C.C.” Principle (Calendar and Communicate)- In reviewing the cases our group was working on a few years ago, I found that nearly half of all the cases directly related to issues of calendaring or communication (even more included those issues to some degree). Communication is, of course, a running theme throughout this blog/blawg. The importance of Rule of Professional Conduct 1.4 in preventing malpractice actions cannot be over emphasized. Which leads to the phrase. . . .
Phrase: “Informed Consent”- The communication required by the rules, specifically Rule 1.4, is designed to elicit “informed consent.” Rule 1.1(e) defines informed consent. ”Informed consent” denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct (note that Pennsylvania substitutes “consent” for “agreement”). However, in terms of malpractice avoidance, this will amount to little without the habit. . . .
Habit: Put it in writing- While communication will help prevent lawsuits, writings which prove that the communication happened can be a great help in winning any malpractice action that does occur. There are Pennsylvania rules which require writing- Rule 1.4(c) (regarding inadequate insurance); Rule 1.5(b) (regarding basis for fees); Rule 1.5(c) (regarding contingent fee agreements); Rule 1.8(a)(1) (regarding conflicts with current clients). However, writing to the clients should not be limited to the situations in which it is required. Regular correspondence with a client, including about the weaknesses of a case, prevent (or at least should prevent) a client from alleging surprise when a case goes south.
So there you have it. An hour and a half’s worth of lecture condensed into one principle, one phrase, and one habit. Embrace them and your malpractice risks will be greatly reduced.
The criminal case against former New Jersey criminal defense attorney Paul Bergrin is starting to heat up again. Trial is scheduled for October and Mr. Bergrin’s attorneys are apparently attempting to negotiate a plea deal. Mr. Bergrin was a prominent New Jersey attorney representing clients including Abu Ghraib defendants, the rap stars Lil’ Kim and Queen Latifah and members of Newark street gangs. In 2009, Mr. Bergrin was arrested on charges including witness tampering, racketeering, mortgage fraud and murder of a federal witness. The wiretap transcripts included a conversation in which Mr. Bergrin stated: “No [witness], no case.” Mr. Bergrin was accused of regularly intimidating witnesses, and actually plotting to kill witnesses in two cases. George Anastasia of the Philadelphia Inquirer has just released a short video regarding the case in his feature “Mob Scene.” Mr. Anastasia discusses Mr. Bergrin’s alleged involvement in a drug ring as well as his involvement with a prostitution ring.
Needless to say, Mr. Bergrin has been suspended from the practice of law in New Jersey, and disbarred in New York. The New York disbarment was based solely on his involvement in the prostitution ring. In terms of ethical violations, the accusations against Mr. Bergrin span the entire gamut, but most fundamentally, pursuant to N.J. Rule of Professional Conduct 8.4 (b) (the rule is the same in Pennsylvania), it is “professional misconduct” for a lawyer to “commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.” There are crimes for which this rule is subject to interpretation, but they do not include prostitution, drug dealing, or plotting murder of an adverse witness.
The Philadelphia Bar Association publishes ethics opinions nearly every month. The opinions are “advisory only” by the Professional Guidance Committee, and are not binding upon the Disciplinary Board or Pennsylvania Courts. They are, however, a good place to look for well considered advice if you have a question on your duties under the Rules of Professional Conduct.
In February of this year, the Committee published an interesting opinion on a question by an insurance defense lawyer (Opinion 2010-9). The lawyer was faced with a situation where the insurance company proposed to draft nearly all pleadings, motions, and other court submissions. The lawyer would have the opportunity to review and make changes if necessary, and would then sign the materials and submit them under his own name. The Committee found that several of the Rules of Professional Conduct would be implicated by this arrangement, including RPC 1.0, RPC 1.3, RPC 1.4, RPC 1.8, RPC 2.3, RPC 5.1, and RPC 5.5. The Committee advised that while “ministerial work” could be done by a centralized location at an insurance company, any acts which “constitute the practice of law” must be done by the attorney.
Although the conclusion is relatively obvious, the opinion is well reasoned, and is a good refresher on a number of the duties particular to insurance defense attorneys.
-Josh J.T. Byrne, Esquire
One of the best ways for attorneys to stay out of trouble with judges (which never hurts when looking to avoid malpractice) is to know when to shut-up, when to sit down, and when not to say anything. Ex-Philadelphia attorney Alan Feingold serves as an example of how to incur the wrath of multiple judges. Although suspended since 2006 and disbarred since 2008, opinions involving Mr. Feingold continue to percolate through the system.
In Feingold v. Hendrzak et al, an action in which we represented one of the defendants, the Superior Court upheld preliminary objections of all defendants finding that dismissal with prejudice was appropriate because Mr. Feingold’s complaint was “utterly frivolous.” Moreover, the Superior Court took the extraordinary measure of sua sponte awarding all appellees attorneys’ fees, and remanding the action solely for the calculation of those fees. The Superior Court stated: ”We cannot ignore Appellant’s repeated abuse of the court system to harass defendants and opposing counsel with lawsuits that contain nothing more than unfounded allegations.”
On May 5, 2011, the Commonwealth Court upheld an order of the Workers’ Compensation Appeal Board terminating benefits for a claimant represented by Mr. Feingold. The decision deals for the most part with Mr. Feingold’s argument that the WCJ should have recused herself. Among the more interesting exchanges before the WCJ was:
JUDGE KELLEY: … The first Claim Petition was dismissed for Counsel’s failure to proceed with the presentation of Claimant’s evidence —
ATTORNEY FEINGOLD: Medical. Medical Evidence.
JUDGE KELLY: in a timely fashion. Mr. Feingold, I believe that if you review the record, the presentation of Claimant’s testimony was also untimely. It took you several hearings to get that made. But in any event.
ATTORNEY FEINGOLD: Because I was on trial, Judge. Something you evidently know nothing about.
JUDGE KELLEY: Mr. Feingold? —
ATTORNEY FEINGOLD: Have you ever been on trial Judge, or just push papers like this for your entire life?
JUDGE KELLEY: You are out of line, Mr. Feingold.
ATTORNEY FEINGOLD: I know I am.
Despite this, the judge found that she had kept her cool, and there was no reason for her to recuse herself. The Commonwealth Court agreed.
The professional liability avoidance tip to be taken from this? Know when enough is enough. There is a time and place for hardheadedness and flamboyance, but there is also a time and place for restraint.
What is a good way to avoid professional liability? Read the Rules of Professional Conduct (RPCs). The RPCs, in and of themselves, explicitly cannot form the basis of a legal malpractice action in most states (see e.g. Pa. R.P.C. preamble at  “Violation of a Rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached.”). However, the model rules do allow them to serve as evidence of a breach of the standard of care, and they do provide a good road-map for attorneys who want to avoid trouble. Far too many attorneys have not looked at this excellent guide since shortly after law school. In Pennsylvania (which largely follows the model rules) there are only sixty-six rules (fifty-eight in the model rules if I counted correctly), most of them only a few paragraphs long.
A quick look at the rules shows just how valuable they are in avoiding legal malpractice. Almost by definition, a lawyer who complies with Rule 1.1 will avoid legal malpractice actions, as that rule requires a “lawyer shall provide competent representation to a client.” Of course that’s a little broad, but the rules contain more concrete advice as well. Rule 1.4 “Communication,” requires iner alia “[a] lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” In an internal review performed by our practice group 15% of our cases stemmed directly out of communication problems which could have been avoided by better communication with clients.
A couple hours every few years with the RPCs (they’re great bed-time reading), will serve you well in avoiding malpractice.
One would think that with the prosecution of Bernie Madoff either investors or shysters would figure out that Ponzi schemes are a bad deal. However, attorneys continue to get caught in involvement in Ponzi schemes even in our post Madoff world. A Florida attorney has recently been disbarred for running a real estate investment fraud “similar to a Ponzi scheme.” The fraud involved investments of at least $1.8 million. Yesterday, Jonathan Bristol, 55, a former partner at the New York firm Winston & Strawn, pled guilty of conspiracy to launder almost $19 million in funds. He faces up to five years in prison and a fine of $250,000, but will also by paying $18.8 million in restitution. Last month, William Parente, 59, another New York lawyer, killed his wife, his two children, and then himself in a Maryland hotel. Mr. Parente was under investigation by the FBI for his involvement in what may be a $20 million Ponzi-type scheme.
The professional liability implications of involvement in Ponzi schemes are obvious, as are the attorney ethics and professional responsibility implications. Stealing a client’s money is never a good idea, it is a breach of fiduciary duty and a clear ethical violation. It is unclear how many lawyers get involved in these type of activities consciously. Frequently (although by no means always) the Ponzi schemes start with a single bad decision which snowballs as the attorney attempts to cover-up a mistake. As the examples above show, any short term financial gain comes at an enormous cost!