Archive for June, 2011

Tort Reform Bill Signed

Thursday, June 30th, 2011

Pennsylvania Gov. Tom Corbett signed into law the Fair Share Act, a tort reform bill.  S.B. 1131 makes significant changes to Pennsylvania’s joint and several liability rules.  Under the new law, defendants are only fully accountable for damages if plaintiffs prove that they are at least 60 percent at fault.  If a defendant is less than 60 percent at fault, they are only required to pay for the percent of damages they caused.  This is a significant change from Pennsylvania’s previous “pure” joint and several liability rules.

Interestingly, this is not the first time the Fair Share Act has been in the news.  A previous version of the Act was instituted under Governor Schweiker, but it was later determined to be unconstitutional because of procedural errors when it was passed.  A subsequent version of the Act was vetoed by Governor Rendell.

As Swartz Campbell attorney James Haggerty has said, the Act could act as a disincentive to drag people or companies into lawsuits as defendants when they have little liability.  This act will have a substantial impact on most complex litigation including legal malpractice actions.  The Act may have some impact on wrongful use of civil proceedings actions, however, exceptions for intentional torts and intentional misrepresentations should leave most wrongful use of civil proceedings actions subject to traditional joint-several liability.

-Josh J.T. Byrne, Esquire

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Judged Guilty

Friday, June 24th, 2011

Former Philadelphia Court of Common Pleas Judge Bernard Snyder has an interesting history.  He actually made history as the first sitting judge in Philadelphia history not to be returned to the bench when seeking reelection.  When Judge Snyder sought reelection again, the Pennsylvania Supreme Court declared him inelligible to run for a judicial office.  The Supreme Court’s ruling was based on the finding of the Judicial Inquiry and Review Board (now the Judicial Conduct Board) that Judge Snyder ”evidences a virtual absence of comprehension and appreciation of the meaning and import of the Code of Judicial Conduct.”

Mr. Snyder is back in the news again, as the result of a verdict against him in a RICO case that could potentially reach $2 million.  The verdict is the end result of a lawsuit brought by State Farm Insurance Company against a number of individuals and businesses that were alleged to be participants in a fraud scheme to produce and submit “fraudulent medical reports, bills and other documents. . .”  Mr. Snyder was accused of helping set up a medical facility which then created false medical records for use in personal injury lawsuits.

Mr. Snyder does not have a history of discipline from the Disciplinary Board of the Supreme Court of Pennsylvania.  However, that is likely to change if disciplinary proceeding are commenced.  If Mr. Snyder did indeed knowingly submit false medical records in his cases it would be a violation of Rule of Professional Conduct 4.1 (Truthfulness in Statements to Others) and Rule of Professional Conduct 3.3 (Candor Toward the Tribunal).

-Josh J.T. Byrne, Esquire

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Who and what are you responsible for?

Wednesday, June 22nd, 2011

Bonnie Sweeten, the infamous “hoax mom,” is back in the news following her guilty plea to a count of wire fraud and a count of aggravated identity theft.  Ms. Sweeten used her position as a paralegal to steal nearly $1 million from clients of the law firm, the law firm itself, and a relative (not to mention faking a racially tinged abduction while travelling to Disney World).  The sobering news for attorneys is the ramifications for Ms. Sweeten’s former employer.  Former attorney Debbie Ann Carlitz has faced multiple lawsuits and has been disbarred upon consent, largely because of the actions of Ms. Sweeten.

Ms. Carlitz was originally suspended in March 2008.  According to the disciplinary opinion, Ms. Carlitz was practicing law while on inactive status due to failure to comply with CLE requirements.  Ms. Carlitz was found to have violated Rules of Professional Conduct 5.5(a) (practicing law in violation of the regulation of the legal profession), 7.1 (false communication about the lawyer’s services), 8.4(c) (it is professional misconduct to engage in conduct involving dishonesty, fraud, deceit or misrepresentation), and 8.4(d) (conduct prejudicial to administration of justice).  Ms. Carlitz was suspended for one year and one day.  

Ms. Carlitz later claimed she did not know she was on inactive status because Ms. Sweeten received the notice of the transfer to inactive status, signed it, and sent it back without informing Ms. Carlitz.  Moreover, Ms. Carlitz claimed she did not even know about the disciplinary proceedings, and the consent suspension was entered into without her knowledge.  The entire disciplinary action was handled by Ms. Sweeten without Ms. Carlitz’s knowledge.  The suspension was vacatedfollowing an emergency petition for review.  There is no opinion stating why Ms. Carlitz is now disbarred.

The suspension was not the only problem Ms. Sweeten caused for Ms. Carlitz.  Ms. Carlitz was sued by a client whose settlement check was cashed by Ms. Sweeten.  Ms. Carlitz was sued by other clients for legal malpractice around the same time.  Ms. Carlitz was also sued by a mortgage company for a loan taken out by Ms. Sweeten in Ms. Carlitz’s name.

The lesson here is that we are responsible for what goes on in our offices.  There may be defense that can be mounted by claiming ignorance, but that does not mean that the misdeeds of others in your office will not cost you hundreds of hours and thousands of dollars, or that the defense will ultimately be successful.  Malpractice avoidance requires knowing what is going on in your office, and taking swift action as soon as you suspect a problem.

-Josh J.T. Byrne, Esquire

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Legal Malpractice Avoidance Quicktip: Resources

Friday, June 17th, 2011

One of the best legal malpractice avoidance techniques is quickly addressing a problem when it arises.  There are very few problems that are irresolvable if they are tackled swiftly.   Luckily, an attorney in trouble does not have to handle professional liability problems or ethics questions alone.  There are many good resources for attorneys to turn to when a problem arises. 

The Pennsylvania Bar Association has an ethics hotline.  The American Bar Association has a free online ethics research center.  Many of the largest professional liability insurance companies have risk management and malpractice avoidance resources, including SwissRe, Arch,  and Minnesota Mutual.  Professional liability insurance companies will frequently assign counsel in order to manage potential legal malpractice claims.

Another excellent resource, although not directly related to professional liability, is Lawyers Concerned for Lawyers of Pennsylvania, which helps lawyers deal with issues of abuse and addiction.

Remember that avoiding legal malpractice claims is best accomplished by addressing problems as soon as they arise.  Make it a practice to identify problems and deal with them quickly, and do not be afraid to ask for help.

-Josh J.T. Byrne, Esquire 

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Round Two!

Monday, June 13th, 2011

It looks like a legal malpractice action against Spector Gadon & Rosen and one of its attorneys may go back for a second round of litigation.  The underlying action was an arbitration brought by Spector Gadon’s client that was dismissed for lack of prosecution.  Spector Gadon & Rosen won the legal malpractice action in front of a jury which found no negligence.  However, Philadelphia Court of Common Pleas Judge Mark I. Bernstein granted the plaintiff’s motion for a new trial, ruling that in light of the evidence there was no way the jury could have found the firm and the attorney not negligent in not timely prosecuting their client’s case.  Judge Bernstein did add that he had serious doubts about the ability of the plaintiff to establish the existence of any damages.

The legal malpractice avoidance lesson with this case is clear.  Even for the big boys, it is necessary to stay on top of your cases.  Remember that lawyers are more likely to get in trouble because they are not paying attention to a file than because they do not understand what they are doing.  Any file you have where you have said to yourself “I have to do . . .” three times or more is a file you should be urgently looking at.  The best professional liability defense is not to let your cases get away from you in the first place.

-Josh J.T. Byrne, Esquire

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Good News on Medical Malpractice Actions

Thursday, June 9th, 2011

The annual report on medical malpractice filings from the Administrative Office of Pennsylvania Courts shows that the number of cases filed statewide has reduced for the sixth consecutive year.  The 2010 filings represented a 45.4 percent decline from 2000-20002 statewide, and a nearly 70% decline in Philadelphia.  As well, more than 80 percent of jury trials throughout the state have resulted in defense verdicts.  The AOPC has been compiling data on medical malpractice actions for the last seven years.  The data shows a direct correlation between the reduction in medical malpractice cases and requirements for  certificates of merit and the elimination of venue shopping (all medical malpractice actions must now be brought in the county where the alleged malpractice occurred).

On an interesting side note, Lehigh County was by far the statistical leader in cases with verdicts in excess of $5 million (with eight), but the eight verdicts for more than $5 million were all against Charles Cullen, a former registered nurse who pled guilty in 2004 to murdering numerous patients. These eight cases were brought by the estates of patients against Cullen and the medical facilities that employed him.  The medical facilities were dismissed from the cases on summary judgment, and the trial proceeded solely against Cullen who did not defend the matter.  Medical malpractice prevention hot tip- don’t murder your patients.

-Josh J.T. Byrne, Esquire

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Hiding mistakes can be costly

Tuesday, June 7th, 2011

Communication is one of the most important parts of the attorney-client relationship.  Rule of professional conduct 1.4 tells us the minimum communication necessary to abide by the rules, including:  (a)  A lawyer shall:  (3)  keep the client reasonably informed about the status of the matter.  One of the more painful ramifications of this for lawyers is telling our clients when mistakes have been made.  This is important from an attorney ethics standpoint, but also from a malpractice avoidance standpoint.  Identifying and addressing problems with cases is a good way to avoid a legal malpractice action.  Avoiding a legal malpractice action is the best professional liability defense there is.

The importance of not hiding ones errors was highlighted by a recent arbitration decision in which Tom Rutter, Esquire awarded a couple more than $1 million in a legal malpractice action.  The Karoly firm and lawyer Lewis Thompson, Esquire were found to have committed malpractice in missing the statute of limitations in an automobile accident action.  Mr. Rutter noted that Mr. Thompson not only missed the statute of limitations, but he told his clients he had filed the papers on time and created false documents, including a false court filing stamp, to show he filed on time.  Because of this, a punitive damage award was added to the compensatory damages.

-Josh J.T. Byrne, Esquire

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More charges against Paul Bergrin

Tuesday, June 7th, 2011

The New Jersey Lawyer whose case is summed up by his statement of “no witness, no case” has had additional charges brought against him.  In addition to the charges of witness tampering, racketeering, mortgage fraud and murder of a federal witness he previously faced, new charges of drug trafficking, witness tampering and conspiracy have been added.

As we previously noted, among the many issues of attorney ethics involved in this case, conviction of any of these crimes would constitute a violation of 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.”

-Josh J.T. Byrne, Esquire

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When you are making $727,000, how much should you steal from your employer?

Friday, June 3rd, 2011

One wonders if there are attorneys who have not read The Goose Who Laid the Golden Egg.  It is very short, and contains a life lesson as important as any Rule of Professional Conduct.  It seems that Roosevelt Hairston, Jr. was unaware of its simple lesson.  The allegations came out several months ago when he was fired from his position as general counsel for Children’s Hospital of Philadelphia.  The three count information came down yesterday.  The information charges Mr. Hairston with embezzling $1.7 million from Children’s Hospital of Philadelphia, mail fraud, money laundering, and filing a false tax return to try to hide the theft.  According to the Philadelphia Inquirer, Mr. Hairston’s 2009 compensation from the hospital was $727,130.  Despite this generous salary, the information alleges that, between 1999 and February 14, 2011, Hairston used dozens of false invoices he created for shell companies to steal from CHOP.

The ethical ramifications of Mr. Hairston’s conduct (if the accusations are correct) are obvious.  As are the potential violation of Pennsylvania Rules of Professional Conduct.  Most obviously, a violation of law that reflects upon one’s honesty is a violation of RPC 8.4(b):

Rule 8.4 Misconduct
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
(b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice;
(e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; or
(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.

Although Mr. Hairston has yet to be disciplined, he is unlikely to be a lawyer much longer.

Josh J.T. Byrne, Esquire

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