Archive for July, 2011

To friend request, or not to friend request, that is the question

Friday, July 29th, 2011

With Google about to launch Google+, its own social networking site, to rival the reigning king of social networks, Facebook, it is a good time to brush up on the dos and don’ts of using social networking sites as an investigative tool during litigation.  I regularly check Facebook to see if the plaintiffs or witnesses in my cases have Facebook profiles.  True story – I was defending a case in which the plaintiff — let’s call her Jane — claimed that injuries to her back and shoulders caused severe scarring that made her self-conscious and limited her choices of formalwear.  Yet, I found Jane on Facebook smiling in her profile picture wearing her strapless wedding gown, which exposed the upper half of her back and shoulders.   Busted.  I printed the picture and added it to my exhibits for trial.  By accessing Jane’s account, did I commit an ethical infraction?  Did I engage in ex parte communication with a represented party?  To answer these questions, follow these simple rules:

Don’t:  Do not friend request an opponent or potential witness with the goal of getting inside information for a client’s matter.  A friend request intended to elicit information from a represented party about the subject matter of a client’s representation amounts to improper ex parte communication.  An attorney’s duty not to deceive prohibits him from making a friend request, even of unrepresented witnesses, without disclosing the purpose of the request.  And don’t even think of trying to use a third person to friend a party or nonparty witness.

Do:  Search for public websites or profiles.  There is nothing that prohibits a lawyer from accessing a represented party’s public website or profile.  If the party or witness does not use the privacy settings to limit who can view his or her profile or website, that information is fair game.  Print it out and add it to your exhibits.  You can also subpoena Facebook or MySpace in order to secure people’s profiles.

Fortunately for me, Jane did not restrict access to parts of her Facebook profile.  Jane’s profile picture and even some of her personal information could be viewed by anyone with a Facebook account.  What you learn from a public profile could be the difference between success and failure at trial.

-Nicole L. Graham, Esquire

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Funky Malpractice

Tuesday, July 26th, 2011

Malpractice litigation has a funky new participant.  Parliament Funkadelic star George Clinton has sued his former attorneys for allegedly failing to bring a RICO action on his behalf, and billing Mr. Clinton $3.5 million in legal fees.  Mr. Clinton’s former attorneys, Hendricks & Lewis, allege the lawsuit is merely retribution for an attempt by the firm to recover unpaid legal fees.

This case is not only funky, it also brings to light an important legal malpractice avoidance tip.  If you want to avoid legal malpractice claims, then do not sue your clients.   According to one article published by the American Bar Association, “about half” of lawsuits for fees will be met with claims of malpractice.  Some legal malpractice insurance policies also include a “fee dispute exclusions,” which leave attorneys bearing the cost and risk of claims, counter-claims, and/or cross-claims of legal malpractice which arise out of fee dispute litigation.

-Josh J.T. Byrne, Esquire

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Guilty

Wednesday, July 13th, 2011

As expected, former Children’s Hospital of Philadelphia attorney Roosevelt Hairston, has pled guilty to stealing $1.7 million dollars from that institution.  For further information on this case, please see our previous post  “When you are making $727,000, how much should you steal from your employer?

-Josh J.T. Byrne, Esquire

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2011 Discipline Review

Wednesday, July 13th, 2011

With a little more than half of the year gone, it is a good time to take a look at why lawyers have been receiving discipline so far this year.  Fifteen attorneys have been disbarred.  Of those, eight have written opinions.  The most common reasons for disbarment have been criminal activity and unauthorized practice of law.  There were disbarments by consent due to allegations of inadequate representation.  The classic diversion of client funds was prominent in several cases.  Controlled substances were also a factor in several cases.  One case involved a charge of tax evasion.  The most commonly cited Rule of Professional Conduct was Rule 8.4.

In one case involving a particularly interesting combination of issues, the attorney took $20,000 of proceeds from drug sales for safekeeping in his escrow account.  The drug money was brought in to the attorney by the client’s mother after the client was arrested.  The attorney then told the mother he no longer had the money because he had given it to the drug cartel which had retained him to represent the son.

There have been 33 suspensions so far this year ranging from 30 days to five years.  The suspensions are generally for the same reasons as disbarments, but with a greater emphasis on malpractice.  There have also been four probations and a public censure.

Four attorneys have been listed as “disabled.”  Disabled is not discipline per se but means that the attorney is unable to continue in the practice of law.  Pursuant to Rule of Disciplinary Enforcement 301, an attorney can be transferred to inactive status when he or she has been declared by a clerk of court to be incapacitated or has been involuntarily committed to an institution.  The Disciplinary Board can also petition the Supreme Court to declare an attorney incapacitated by reason of mental infirmity or illness or because of addiction to drugs or intoxicants.

The professional liability defense lessons from this are obvious: stay away from drugs and gambling, be careful with client funds, and try not to commit any major felonies.

-Josh J.T. Byrne, Esquire

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Legal Malpractice Claims on the Rise

Thursday, July 7th, 2011

We recently told you about the continuing good news concerning the numbers of medical malpractice actions in Pennsylvania.  The news with respect to legal malpractice actions is not so good.  According to a survey of legal malpractice insurers performed by insurance broker Ames & Gough, the number of claims against lawyers in 2011 is up significantly from 2010.  According to the survey, legal malpractice claims were up anywhere from 6 to 20 percent.  The largest number of claims occur in three practice areas: real estate, corporate and securities, and trusts and estates, and conflict of interest was the largest cause of malpractice claims.  Malpractice avoidance has never been more important. 

According to The Insurance Journal, Eileen Garczynski, a vice president at Ames & Gough, said, “As law firm clients see their financial circumstances worsen, they’re more likely to seek redress from their advisers.  If lawyers representing a client are not careful during the initial representation, they may well become targets for a malpractice claim when the client’s financials spiral downward.”  The articles on this rise suggest that disappointed clients in the real estate sector are a major driver of this trend.  This highlights the importance of managing client expectations in professional liability avoidance.

-Josh J.T. Byrne, Esquire

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