Archive for March, 2012

The Umpires Strike Back

Wednesday, March 28th, 2012

The Lima, Pennsylvania firm of Phillips Campbell & Phillips, has been sued in Ft. Worth, Texas, for legal malpractice by the Professional Association of Golf Officials.  This is not the first time the firm has been in the news for actions brought against it by sports officials.  The action asserts the firm represented the Association for over twenty years, but did not provide appropriate representation with respect to a recent collective bargaining agreement.  The Association asserts the firm, and Mr. Campbell in particular, did not understand and advise the Association on the terms of the agreement.  The Association paid the firm yearly, but was allegedly not provided with billing statements to show what services had been provided.  The Association terminated their agreement with the firm at the end of 2011, and alleges the firm “set out on a warpath” to destroy their bargaining position with the PGA.  The petition filed by the Association asserts the firm demanded payment for work done after it was terminated, and provided confidential information to the PGA.  The association asserted claims of legal malpractice, breach of fiduciary duty, and breach of contract.  Mr. Campbell asserts this action is in retaliation for his filing of an action in Delaware County to collect fees from the Association.

Whatever its merits, the action again Phillips Campbell & Phillips is indicative of the old maxim that the easiest way to get sued for legal malpractice is to sue your clients for fees.  At least one source has stated that at least one out of four actions to recover fees result in counterclaims of malpractice.  As a result, actions to recover fees can result in increases to your professional liability premiums.  While it is not always possible to avoid actions to recover fees, professional liability avoidance requires the practitioner think twice (or three times) before commencing actions for fees.

-Josh J.T. Byrne, Esquire

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Pennsylvania Lawyer Suspended for Failing to Act Promptly as his Partner Stole Funds from Clients

Monday, March 26th, 2012

Last month, Pennsylvania attorney Lawrence Rubin was suspended for practicing for one year for failure to act promptly when faced with suspicious behavior relating to his now-disbarred partner’s use of multiple clients’ settlement funds for his own personal use.

The disciplinary board noted that Rubin must have been made aware of his partner’s inappropriate use of the settlement funds due to various red flags that began in 2004. In 2004, Rubin became aware of one to two week delays in his partner’s disbursement of settlement funds to clients. Following this, he had to periodically remind his partner to distribute settlement proceeds to clients. In addition, when Rubin inquired about the delays in distribution, his partner frequently responded by stating that the funds would be distributed “next week.” On one occasion, Rubin’s partner responded by stating that he would “come up with the money.” Furthermore, around 2006, Rubin’s monthly compensation severely decreased. The board found that Rubin should have known that his partner was stealing funds due to the excuses he repeatedly made about the delays in distribution to clients, the multiple delays in distribution of clients’ settlement proceeds, and his reduction in monthly compensation.

The Pennsylvania Supreme Court found that Rubin violated a total of six Pennsylvania Rules of Professional Conduct including 1.2(a), 1.4(a)(2), 1.4(a)(3), 1.4(b), 1.15(b), and 8.4(c).  Due to Rubin’s cooperation with authorities and efforts to compensate the clients, such as by utilizing the firm’s income to repay substantial amounts stolen by his partner, the court did not impose more severe sanctions on Rubin.

-Josh J.T. Byrne, Esquire and Shilpa Kadoo

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Malpractice Avoidance Quick Tip

Wednesday, March 7th, 2012

Another in our series of malpractice avoidance Quick Tips:

1.  Be careful what you write and what you say

  • Treat all e-mails as if they will be blown up and used as evidence in a future case against you
  • Try to avoid unflattering statements about judges, clients, or opposing counsel
  • The judicial privilege offers useful protection, as long as you do not send your complaint to the newspaper
  • Do not go to a deposition you have been subpoenaed for and testify without representation

2.  Who do you represent and who believes you represent them?

  • Although you believe you are acting only as a scrivener, others may believe otherwise
  • Third-party beneficiaries may believe you represent them
  • Use written agreements for retention, disengagement, and non-engagement.

-Josh J.T. Byrne, Esquire

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Medical Fraud Arrests

Thursday, March 1st, 2012

The headlines leave no doubt that the government is taking an aggressive stand on health care fraud.  This week, the papers reported two multi-million dollar health care fraud schemes which have resulted in the arrest of a number of doctors and lawyers.  Yesterday it was announced that 36 people were arrested in $250 million health care fraud scheme in Brighton Beach, including ten doctors, three lawyers, and ringleaders known as “Russian Mike” and “Fat Mike.”  Tuesday, Dr. Jacques Roy, a Dallas area doctor, and five others, were arrested and charged in a $375 million health care fraud scheme.

After noting that that the Department of Justice had recovered over $4 billion in health care fraud monies last year, Attorney General Eric Holder recently spoke on the scope of health care fraud investigations:

Over the same period, the Justice Department’s Criminal Division and our U.S. Attorneys’ Offices opened more than 1,100 new criminal health-care fraud investigations and had more than 1,800 health-care fraud criminal investigations pending. We reached an “all-time high” in the number of health-care fraud defendants charged – more than 1,400 in nearly 500 cases. And we secured more than 700 convictions. And I am particularly proud to note that FBI activity resulted in the dismantling of nearly 70 criminal enterprises engaged in health-care fraud, and the operational disruption of more than 230 criminal fraud organizations.

-Josh J.T. Byrne, Esquire

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