It is obvious that social networking has skyrocketed over the past few years. It seems as though most everyone has at least one social webpage where they can make posts and communicate with friends. But what happens when those postings get seen by a soon to be ex-spouse amidst a divorce proceeding?
Recently a judge in New London Connecticut ordered that a divorcing couple disclose their facebook and online dating passwords to the other’s attorneys. The purpose, according to the judge, is to assist the couple’s attorneys in the discovery process. The judge did impose a restriction on this ruling prohibiting each party from viewing the other’s webpages and making postings pretending to be the other person.
This issue came up in court because the husband saw postings on his wife’s facebook page where she talked about her feelings toward him, their children and he believed the posts questioned her ability to care for their children. He believed this information could be useful in his quest to obtain full custody of their children. The wife was originally asked about her facebook password during a deposition, at which time she provided it. But then, on advice of counsel, changed it immediately after the deposition. That is where the court stepped in. This court ruling has been dubbed “court authorized hacking” and actually violates the terms and conditions set forth by facebook which states that users should never disclose their passwords
As we have said before - Even if you limit who may view certain aspects of your social media posts, and even if it is simply an e mail to a friend, once you get into court assume it is all going to be open for the other side. If you are injured and are claiming damages for limitations in your activities, if you may be facing a divorce, or if you are in anyway involved in litigation just imagine the court and the other side reading what you post and or e mail. If the other side wants to they will get a judge to force a disclosure. BE CAREFUL!
Monday, November 21, 2011
Thursday, November 3, 2011
Facebook Evidence in Litigation Proceedings
In the middle of October, the Connecticut Supreme Court heard oral arguments from counsel regarding facebook photographs that were allowed as evidence. The arguments centered on the fact that these photographs should not have been introduced as evidence and, the fact that they were admitted actually violated the defendant’s constitutional rights.
The controversy began in 2004 when Alia Altajir, granddaughter of an Arab billionaire, was driving while intoxicated when she crashed and killed her best friend. Altajir was charged with manslaughter and in 2007 agreed to plea bargain to a lesser charge. However, after she was released from prison, Altajir admitted to violating her court ordered probation.
During her 2009 sentencing hearing in Litchfield Superior Court, photographs which were posted on Altajir’s facebook page were introduced. After the judge reviewed the photos, he commented that it did not appear that Altajir had any remorse after what happened. The prosecutor argued that the photos demonstrated that even after serving her jail sentence, she was not changing her lifestyle. Altajir’s attorney stated that he had advised his client to take down her facebook page, but she declined. He also argued that the photographs did not contain dates which made it impossible to determine whether the photographs were taken during Altajir’s probation.
Both attorneys admitted that this case could set new standards for when and how facebook photographs can be used in court hearings and trials. While this case addresses how social media websites can be used in a criminal case, it is obvious that it is opening the floodgates to how social media can be used in any type of litigation proceeding.
The controversy began in 2004 when Alia Altajir, granddaughter of an Arab billionaire, was driving while intoxicated when she crashed and killed her best friend. Altajir was charged with manslaughter and in 2007 agreed to plea bargain to a lesser charge. However, after she was released from prison, Altajir admitted to violating her court ordered probation.
During her 2009 sentencing hearing in Litchfield Superior Court, photographs which were posted on Altajir’s facebook page were introduced. After the judge reviewed the photos, he commented that it did not appear that Altajir had any remorse after what happened. The prosecutor argued that the photos demonstrated that even after serving her jail sentence, she was not changing her lifestyle. Altajir’s attorney stated that he had advised his client to take down her facebook page, but she declined. He also argued that the photographs did not contain dates which made it impossible to determine whether the photographs were taken during Altajir’s probation.
Both attorneys admitted that this case could set new standards for when and how facebook photographs can be used in court hearings and trials. While this case addresses how social media websites can be used in a criminal case, it is obvious that it is opening the floodgates to how social media can be used in any type of litigation proceeding.
Tuesday, October 25, 2011
Can the Attorney-Client Privilege Be Waived?
As discussed in last week’s blog entry, attorney-client privilege is more complex than most clients realize. One of the purposes of attorney-client privilege is to help the client speak openly and honestly to their attorney without having to worry about whether the information will go beyond the four walls of the attorney’s office.
Clients can waive this privilege, either by putting it in writing or thought their actions. If a court determines that steps were not taken to make sure the information was held in confidentiality, the court may determine that the client waived his right to exercise the privilege. The attorney-client relationship works best when the client is able to speak openly and honestly with his attorney. If you are worried that your actions may have caused you to waive attorney-client privilege, the best thing to do is ask your attorney.
Clients can waive this privilege, either by putting it in writing or thought their actions. If a court determines that steps were not taken to make sure the information was held in confidentiality, the court may determine that the client waived his right to exercise the privilege. The attorney-client relationship works best when the client is able to speak openly and honestly with his attorney. If you are worried that your actions may have caused you to waive attorney-client privilege, the best thing to do is ask your attorney.
Monday, September 12, 2011
Where Does the Attorney-Client Privilege End?
One thing most clients are at least vaguely familiar with when they first consult with a lawyer is the fact that an attorney-client relationship and privilege is created, meaning that whatever the client talks about in front of the attorney will go no further. Many clients do not know the full extent of this privilege, including when it begins and ends, but they are at least aware of the fact that the privilege exists.
Sometimes lawyer’s have an ethical obligation to have to break the client’s confidence. If, for example, after meeting with and retaining a particular lawyer, the client calls her and advises her of his plans to commit suicide. The lawyer is not left with the decision of whether she has an ethical duty to disclose this fact. There have been many ethical discussions about this topic, but the general consensus is that if a client has threatened bodily harm against himself, the lawyer has an ethical duty to disclose that information.
Sometimes lawyer’s have an ethical obligation to have to break the client’s confidence. If, for example, after meeting with and retaining a particular lawyer, the client calls her and advises her of his plans to commit suicide. The lawyer is not left with the decision of whether she has an ethical duty to disclose this fact. There have been many ethical discussions about this topic, but the general consensus is that if a client has threatened bodily harm against himself, the lawyer has an ethical duty to disclose that information.
Friday, August 19, 2011
Can an Existing Fee Agreement be Modified?
One of the first things a client does after meeting with and deciding to hire a lawyer, is she signs the fee agreement. Fee agreements are a way for the lawyer to convey to the client and the client to understand what she will be expected to pay for the lawyer’s services. It also lays out the scope of the lawyer’s representation.
However, sometimes circumstances change after the original fee agreement is signed. The case may become more involved that originally thought or may require hiring an additional lawyer to assist with the case. When something changes and the original fee agreement is no longer applicable, can the fee agreement be modified?
An American Bar Association Ethics Opinion which was released in July answered this question. In order to modify an original fee agreement, the lawyer needs to show that at the time the fee agreement was modified, the modification was reasonable under the circumstances and that the client agreed to the modification. As long as the lawyer can show that there was a reasonable need to modify the fee agreement and the client agreed to it, a fee agreement can be modified if the original one is no longer applicable. However, if the lawyer does not have a reasonable need to modify or does not notify the client, there may be a claim for punitive damages under the Connecticut Unfair Trade Practices Act.
If your attorney modified your fee agreement without discussing it with you first, contact our office to discuss your potential legal malpractice claim.
Friday, August 5, 2011
What the Future Holds for Saint Francis Hospital / Reardon Sex Abuse Cases
In follow-up to the August 1, 2011 court ruling on the defense lawyer’s withholding evidence in the Saint Francis Hospital / Reardon sex abuse case, the question becomes, what does this mean for the cases that settled without the benefit of this new evidence?
It is clear from the judge’s ruling that the evidence was highly relevant to the victim’s cases. The problem is, several victim’s settled their claims with Saint Francis Hospital before this evidence was turned over. The victim’s claims seem much more obvious now and it remains to be seen if several of the victim’s will try to get their cases re-opened in court because they did not have the benefit of this evidence when they settled their claims of sexual abuse by an employee of Saint Francis Hospital. Oddly here is a post from the website of the defense firm which provided the very late disclosure. http://www.employerslawblog.com/Entry.aspx?eID=344 St. Francis Hospital's own lawyers who provided these bylaws late and who were representing St. Francis at the time of the trials clearly understood their responsibility and the risk to their client St Francis Hospital. Risks that most law students would recognize.
To learn more about sex abuse cases, click here for an article posted on www.stangerlaw.com.
It is clear from the judge’s ruling that the evidence was highly relevant to the victim’s cases. The problem is, several victim’s settled their claims with Saint Francis Hospital before this evidence was turned over. The victim’s claims seem much more obvious now and it remains to be seen if several of the victim’s will try to get their cases re-opened in court because they did not have the benefit of this evidence when they settled their claims of sexual abuse by an employee of Saint Francis Hospital. Oddly here is a post from the website of the defense firm which provided the very late disclosure. http://www.employerslawblog.com/Entry.aspx?eID=344 St. Francis Hospital's own lawyers who provided these bylaws late and who were representing St. Francis at the time of the trials clearly understood their responsibility and the risk to their client St Francis Hospital. Risks that most law students would recognize.
To learn more about sex abuse cases, click here for an article posted on www.stangerlaw.com.
Thursday, August 4, 2011
Bylaws Withheld in Saint Francis Hospital / Reardon Sex Abuse Cases
In follow-up to yesterday’s post, the August 1, 2011 court ruling in the Saint Francis Hospital / Reardon sex abuse case, let’s examine what evidence was improperly withheld by the defense lawyers. The lawyers for Saint Francis Hospital only recently turned over to the victim’s lawyers, Saint Francis Hospital’s medical staff bylaws for 8 years from early 1960 to early 1980. These bylaws set forth procedures for the hospital when reviewing research by it’s medical staff. The victims allege that the abuse by Reardon would have stopped if Saint Francis Hospital complied with this written policy of the doctors who worked at Saint Francis Hospital. These were safeguards by Saint Francis Hospital which were not followed.
The bylaws were clearly relevant to the victim’s claims. And the judge found that the defense lawyer’s failure to provide this evidence to the victims was unethical. This information was requested by the victim’s lawyers during the years leading up to trial but the defense lawyers for Saint Francis Hospital failed to turn any of this evidence over until mid-way through the second victim’s trial. During the second trial they turned over only the tip of the iceberg. The remaining bylaws were turned over in connection with a motion for sanctions filed after the second trial, only after the verdict for more than $2,000,000 against Saint Francis Hospital. The third trial is coming up soon, these never before seen bylaws will play an important role in upcoming trials.
To learn more about the Saint Francis Hospital / Reardon sex abuse cases, click here for the article printed in the Hartford Courant.
The bylaws were clearly relevant to the victim’s claims. And the judge found that the defense lawyer’s failure to provide this evidence to the victims was unethical. This information was requested by the victim’s lawyers during the years leading up to trial but the defense lawyers for Saint Francis Hospital failed to turn any of this evidence over until mid-way through the second victim’s trial. During the second trial they turned over only the tip of the iceberg. The remaining bylaws were turned over in connection with a motion for sanctions filed after the second trial, only after the verdict for more than $2,000,000 against Saint Francis Hospital. The third trial is coming up soon, these never before seen bylaws will play an important role in upcoming trials.
To learn more about the Saint Francis Hospital / Reardon sex abuse cases, click here for the article printed in the Hartford Courant.
Wednesday, August 3, 2011
Unethical Behavior in the Saint Francis Hospital / Reardon Sex Abuse Cases
Many people have been following the recent sexual abuse litigation against Saint Francis Hospital. Prior to his death, Dr. George Reardon, a doctor at Saint Francis Hospital, abused hundreds of children from the 1960s through the 1980s under the guise of a growth study at Saint Francis Hospital in Hartford. This year two of the victims have had their day in court. Stanger & Arnold, LLP represents several of the victims in this matter.
In a ruling issued on August 1, 2011, the court found that the defense lawyers withheld relevant evidence in the Saint Francis Hospital sexual abuse cases. As part of the discovery process the defendants are required to turn over relevant evidence that is requested. What the judge just decided was that in January of 2010 the victims of the sexual abuse had requested the information that was not turned over until just a few months ago. In fact much of it was not turned over to the plaintiffs until after the trial of two of the cases that were completed this year. It was not turned over until after many of the plaintiffs had settled their cases. Sounds like lawyers behaving very badly. It is unclear how much Saint Francis Hospital knew and exactly what part Saint Francis Hospital played in attempting to hide the truth. But it is clear that the court has decided it was wrong and that someone had to pay.
To learn more about the Saint Francis Hospital / Reardon sex abuse cases, click here for the article printed in the Hartford Courant. More about this in upcoming posts.
In a ruling issued on August 1, 2011, the court found that the defense lawyers withheld relevant evidence in the Saint Francis Hospital sexual abuse cases. As part of the discovery process the defendants are required to turn over relevant evidence that is requested. What the judge just decided was that in January of 2010 the victims of the sexual abuse had requested the information that was not turned over until just a few months ago. In fact much of it was not turned over to the plaintiffs until after the trial of two of the cases that were completed this year. It was not turned over until after many of the plaintiffs had settled their cases. Sounds like lawyers behaving very badly. It is unclear how much Saint Francis Hospital knew and exactly what part Saint Francis Hospital played in attempting to hide the truth. But it is clear that the court has decided it was wrong and that someone had to pay.
To learn more about the Saint Francis Hospital / Reardon sex abuse cases, click here for the article printed in the Hartford Courant. More about this in upcoming posts.
Monday, July 25, 2011
Complaint Against Judge Leads to Additional Litigation
In 2010, a Texas state court judge filed suit against a well known plaintiff’s attorney. The judge’s complaint included allegations of defamation and extortion. This complaint stemmed from a long standing issue between the judge and attorney. The attorney originally filed a petition with the Texas State Commission on Judicial Conduct which the judge alleges was solely an attempt to diminish the judge’s changes of re-election. The attorney’s petition claimed the judge belittled, berated and ridiculed his colleagues to the public as well as to other judges. Additionally, after pre-suit discovery was conducted, the judge alleged the attorney based his petition on events reported to him by other sources, rather than based on firsthand knowledge.
After filing the petition, the attorney did not act on it until a few weeks before the filing deadline for judicial candidates, at which time the attorney gave copies of the complaint to several media sources. But it did not end there. The attorney also e-mailed a copy of the complaint to over 100 members of the local American Board of Trial Advocates. The question remains whether the attorney filed the complaint was acting in good faith and had knowledge of the judicial misconduct he is asserting or whether he was acting with reckless disregard for the truth of the information he received in violation of Model Rule of Professional Conduct 8.2. The case is continuing. It is not only clients that are critical of judges and lawyers. Lawyers and judges sometimes point their fingers at each other. Who is correct does not matter. What does matter is that if you have been injured because someone acted improperly you should consider having a lawyer review your situation.
Contact our office to discuss your potential legal malpractice claim.
After filing the petition, the attorney did not act on it until a few weeks before the filing deadline for judicial candidates, at which time the attorney gave copies of the complaint to several media sources. But it did not end there. The attorney also e-mailed a copy of the complaint to over 100 members of the local American Board of Trial Advocates. The question remains whether the attorney filed the complaint was acting in good faith and had knowledge of the judicial misconduct he is asserting or whether he was acting with reckless disregard for the truth of the information he received in violation of Model Rule of Professional Conduct 8.2. The case is continuing. It is not only clients that are critical of judges and lawyers. Lawyers and judges sometimes point their fingers at each other. Who is correct does not matter. What does matter is that if you have been injured because someone acted improperly you should consider having a lawyer review your situation.
Contact our office to discuss your potential legal malpractice claim.
Monday, July 18, 2011
Attorney May be on the Hook for Improper Notary Practice
In many states attorneys receive a notary commission without having to pass an examination. While notarizing a document is often something that is viewed as more of an administrative task, attorneys who engage in sloppy notary practice may find themselves facing disciplinary action or other liability. It is easy to view notarizing a document as simply a formality, but each affidavit or verification is a sworn legal document and notarizing same could have serious implications for the signer, notary and the lawyer who prepared the document.
If an attorney pressures an employee to notarize a document improperly, she may be violating the rules of professional conduct. While it may not seem like common practice, it is happening more often that one might expect. For example, a senior partner in a large firm asks a young associate to notarize a document in a large case, however, the document was signed prior to the young associate’s involvement. The young associate notarizes or asks a paralegal to notarize the document. In determining whether the young associate has engaged in improper notary practice it is necessary to consult the law of the state. In some states notaries must verify that the document was signed in his or her presence. In other states it is the simple matter of verifying the signature even if there was no personal appearance.
In an effort to adhere to the rules of professional conduct, the young associate’s best bet in this type of situation would be to draft a new document for the person to sign in the presence of the notary. Contact our office to discuss your potential legal malpractice claim.
If an attorney pressures an employee to notarize a document improperly, she may be violating the rules of professional conduct. While it may not seem like common practice, it is happening more often that one might expect. For example, a senior partner in a large firm asks a young associate to notarize a document in a large case, however, the document was signed prior to the young associate’s involvement. The young associate notarizes or asks a paralegal to notarize the document. In determining whether the young associate has engaged in improper notary practice it is necessary to consult the law of the state. In some states notaries must verify that the document was signed in his or her presence. In other states it is the simple matter of verifying the signature even if there was no personal appearance.
In an effort to adhere to the rules of professional conduct, the young associate’s best bet in this type of situation would be to draft a new document for the person to sign in the presence of the notary. Contact our office to discuss your potential legal malpractice claim.
Wednesday, July 13, 2011
New Report of an Increase in Legal Malpractice Claims
The AmLaw Daily recently published an article noting an increase in legal malpractice claims between 2010 and 2011 as a result of the state of the economy and the real estate market. Real estate practices were cited as the most likely to be sued due to conflicts of interest and failure to file timely as the main basis’s for claims. The survey polled six insurance companies who provide legal malpractice insurance coverage to approximately seventy-five percent of large and midsized law firms in the United States. One insurance company surveyed noted an 11 to 20 percent increase in claims within the first six months of 2011. One company noted it’s claims rate had increased by 20%, three companies said their claims rates increased by 6 to 10 percent, and the remaining two said their claims rates have remained stable.
It is anticipated, according to the article, that once the real estate market rebounds, the claims of legal malpractice against real estate firms should level back to where they were. During the recession, another publication published an article after consulting with several lawyers, who predicted that law firms could expect to see a rise in legal malpractice suits due to clients being more inclined to seek ways of recouping some of their losses in revenue from other sources, specifically, litigation. To read the article in its entirety, click here.
It is anticipated, according to the article, that once the real estate market rebounds, the claims of legal malpractice against real estate firms should level back to where they were. During the recession, another publication published an article after consulting with several lawyers, who predicted that law firms could expect to see a rise in legal malpractice suits due to clients being more inclined to seek ways of recouping some of their losses in revenue from other sources, specifically, litigation. To read the article in its entirety, click here.
Monday, June 27, 2011
Careless E-Mailing Leads to Disqualification
In-house counsel in California has been temporarily disqualified after they intercepted and used information contained in privileged e-mails which they received accidentally. Counsel for the plaintiff sent several privileged e-mails to individual plaintiffs suing their former company. These e-mail included sensitive documents, including a draft declaration. The problem is counsel for the plaintiff mistakenly sent these documents to one client’s former work e-mail address, which the company they were suing still maintained and monitored. In-house counsel for the company reviewed the e-mails sent by plaintiff’s counsel and allegedly used the information contained therein to construct a counterclaim against the plaintiffs.
The U.S. District Court for the Northern District of California granted a temporary protective order disqualifying the company’s outside counsel and ordering the company to retain alternate counsel who would be required to submit a new declaration indicating that new counsel has received no information regarding the mistakenly disclosed privileged information. The Court also disqualified the in-house counsel who reviewed the privileged e-mail correspondence. Finally, the Court ordered the company to dismiss its counterclaim, without prejudice, so that it could be re-filed by new counsel without reference to the privileged information.
It is obvious from this recent court ruling that attorneys need to be careful if they inadvertently come into contact with privileged information. Given the new technologies available, this problem has the increased possibility of becoming more widespread. Contact our office to get more information about your potential legal malpractice claim.
The U.S. District Court for the Northern District of California granted a temporary protective order disqualifying the company’s outside counsel and ordering the company to retain alternate counsel who would be required to submit a new declaration indicating that new counsel has received no information regarding the mistakenly disclosed privileged information. The Court also disqualified the in-house counsel who reviewed the privileged e-mail correspondence. Finally, the Court ordered the company to dismiss its counterclaim, without prejudice, so that it could be re-filed by new counsel without reference to the privileged information.
It is obvious from this recent court ruling that attorneys need to be careful if they inadvertently come into contact with privileged information. Given the new technologies available, this problem has the increased possibility of becoming more widespread. Contact our office to get more information about your potential legal malpractice claim.
Monday, June 13, 2011
New York Lawyers Sanctioned $15,000
A New York law firm is now paying the price because it knew that their client was lying and they used that lie to try to get a bigger settlement for their client. The firm represented a client in an employment discrimination suit. The firms’ problems arose once they knew that their client had obtained a new job and they not only failed to disclose this information to the opposing firm, they allowed their client to conceal that information under oath. The firm allowed their client to testify during her deposition that she was still waiting for a call back about a new job opportunity even though, two weeks prior to her deposition, she was awarded and accepted the position.
The Court ordered the law firm to pay $15,000 to the opposing firm representing the former employer. The client was also ordered to pay $2,500 to her former employer’s firm. The Court did note in its opinion that although the opposing law firm suffered harm, the real harm was against the judicial system and the judicial process itself. The opposing law firm also filed a motion to dismiss the employment discrimination action which the court denied.
The Court ultimately held that the testimony their client gave under oath was false, and that it was obvious based on the prior questions that the opposing firm was trying to determine whether or not she had obtained new employment. The law firm could have disclosed their client’s new employment to the opposing firm but elected not to in an effort to try to obtain a higher settlement for their client.
This Court is making a point of showing other lawyers that misleading or false statements will not be tolerated and can be quite costly. To read the full story, click here. Contact our office to get more information about your potential legal malpractice claim.
The Court ordered the law firm to pay $15,000 to the opposing firm representing the former employer. The client was also ordered to pay $2,500 to her former employer’s firm. The Court did note in its opinion that although the opposing law firm suffered harm, the real harm was against the judicial system and the judicial process itself. The opposing law firm also filed a motion to dismiss the employment discrimination action which the court denied.
The Court ultimately held that the testimony their client gave under oath was false, and that it was obvious based on the prior questions that the opposing firm was trying to determine whether or not she had obtained new employment. The law firm could have disclosed their client’s new employment to the opposing firm but elected not to in an effort to try to obtain a higher settlement for their client.
This Court is making a point of showing other lawyers that misleading or false statements will not be tolerated and can be quite costly. To read the full story, click here. Contact our office to get more information about your potential legal malpractice claim.
Monday, June 6, 2011
But My Lawyer Told Me So
One of the things lawyers are known best for is their ability to listen to a client’s situation and advise him or her accordingly. Being that the client probably doesn’t have prior experience in the legal system, the lawyer’s advice is held in very high regard. Since the lawyer’s advice is often followed to the letter, it is imperative that the lawyer do the proper amount of research into the situation before dispensing appropriate advice.
Sometimes lawyers think they already know everything there is to know about an area of law and may not perform the diligent research they normally would if they were dealing with an unfamiliar with an area of law. The problem with this is that the law is always changing. New cases come up every day so it is important that lawyers fully investigate before advising a client.
If you lawyer gave you bad advice which cost you in your lawsuit, contact our office to discuss your legal malpractice options.
Sometimes lawyers think they already know everything there is to know about an area of law and may not perform the diligent research they normally would if they were dealing with an unfamiliar with an area of law. The problem with this is that the law is always changing. New cases come up every day so it is important that lawyers fully investigate before advising a client.
If you lawyer gave you bad advice which cost you in your lawsuit, contact our office to discuss your legal malpractice options.
Friday, April 8, 2011
The Power to Admit or Deny
When a case gets put into suit, the injured party files and serves a complaint on the opposing party. The complaint lays out all of her allegations and claims. Once the opposing party receives the complaint, typically he turns it over to his lawyer to file a response. Filing a response to a complaint may seem like a very basic, run of the mill procedure, but careful attention must be paid to the allegations and the responses being made. The lawyer has a duty to investigate the allegations made and draft an accurate response to them. The best way to ensure accuracy is for the lawyer to review the complaint with the client and draft responses together. Failure to draft an accurate response could result in the lawyer making a costly error for the client. For example, if the lawyer admits an allegation that should have been denied, this could result in the client being liable for something that he should not be and ultimately could resulting in a legal malpractice claim against the lawyer. Even though an answer to the complaint may seem like a straightforward part of the case, an error so early on can be detrimental to the client in the long run. If your lawyer’s improper answer cost you, call our office today to discuss your options.
Wednesday, March 23, 2011
Are Experts Necessary in a Legal Malpractice Case?
A legal malpractice case is different from other types of cases in that not only must it be proven that the lawyer screwed up, it must also be proven that the underlying case would have been successful. In order to prove that the lawyer screwed up, evidence needs to be presented to show that there the lawyer had a duty to the client, the lawyer breached that duty and because of that the client suffered damages.
In a recent Connecticut Appellate Court decision, a client filed a legal malpractice claim against her former lawyer for the mishandling of her divorce proceeding. After the client and her former spouse reached a settlement agreement, they appeared in court to finalize it however the client refused to proceed. Her lawyer successfully withdrew from the case and the client represented herself at trial. The lawyer filed suit against the client to recover unpaid legal fees and the client, continuing to represent herself, filed a counterclaim for legal malpractice. During the legal malpractice proceeding, the judge would not allow the client to testify as to the harm she suffered while representing herself in the underlying divorce action because a lay person is not allowed to give expert testimony. The client did not have an expert witness to testify on her behalf and therefore she was unable to prove her claim.
In the state of Connecticut, a legal expert must testify to prove certain aspects of a legal malpractice case. It is evident by the above decision that the courts strictly adhere to this requirement. The only exception the court notes is when the lawyer’s conduct is so obviously negligence that an expert would become unnecessary. In short, unless the lawyer handling your legal malpractice case believes she can prove that your prior lawyer’s conduct was so obviously negligent that an expert is unnecessary, you should be prepared to have an expert offer an opinion in your legal malpractice case. Contact our office to discuss your potential legal malpractice claim.
In a recent Connecticut Appellate Court decision, a client filed a legal malpractice claim against her former lawyer for the mishandling of her divorce proceeding. After the client and her former spouse reached a settlement agreement, they appeared in court to finalize it however the client refused to proceed. Her lawyer successfully withdrew from the case and the client represented herself at trial. The lawyer filed suit against the client to recover unpaid legal fees and the client, continuing to represent herself, filed a counterclaim for legal malpractice. During the legal malpractice proceeding, the judge would not allow the client to testify as to the harm she suffered while representing herself in the underlying divorce action because a lay person is not allowed to give expert testimony. The client did not have an expert witness to testify on her behalf and therefore she was unable to prove her claim.
In the state of Connecticut, a legal expert must testify to prove certain aspects of a legal malpractice case. It is evident by the above decision that the courts strictly adhere to this requirement. The only exception the court notes is when the lawyer’s conduct is so obviously negligence that an expert would become unnecessary. In short, unless the lawyer handling your legal malpractice case believes she can prove that your prior lawyer’s conduct was so obviously negligent that an expert is unnecessary, you should be prepared to have an expert offer an opinion in your legal malpractice case. Contact our office to discuss your potential legal malpractice claim.
Thursday, March 10, 2011
Pie on the Face of a Judge and Lawyer who use Facebook
In one of my previous blogs, I addressed the topic of Social Networking sites and the professional responsibilities involved with utilizing one of the many vastly popular websites. Recently this topic has reemerged in the spotlight, based on the actions of a North Carolina judge and defense attorney.
The case began as a child custody matter. During a meeting with counsel in chambers, the judge brought up the topic of Facebook, a popular social media website. Counsel for the plaintiff who did not have a page is reported as being unfamiliar with it. Counsel for the defendant did. The problem began when the judge and defense attorney became Facebook “friends” and by doing so, they were able to read and create posts on each others pages.
The defense attorney posted a question looking for suggestions on how to prove something in a case he was working on, yes, the same case that was before the judge. The attorney also posted a comment that was highly flattering to the judge. The judge posted a comment on his page about the case, indicating that he has two good parents to choose from.
The problem is that the attorney and judge were essentially engaging in ex-part communications by discussing the case outside of the presence of counsel for the plaintiff, which is strongly discouraged by the ethical rules. However, the judge’s problems didn’t stop there. He went on to search the internet and locate the plaintiff’s website displaying her photography and poems. While he was issuing his decision in court, the judge quoted from one of the plaintiff’s poems in his own decision, thereby revealing the fact that he had conducted his own outside research about the parties which is also strongly discouraged by the ethical rules.
The moral here is if an attorney or judge is going to make the choice to communicate with friends and family via a social networking website, make sure the boundaries of ethical obligations regarding such communications are clear and stay as far away from them as possible.
The case began as a child custody matter. During a meeting with counsel in chambers, the judge brought up the topic of Facebook, a popular social media website. Counsel for the plaintiff who did not have a page is reported as being unfamiliar with it. Counsel for the defendant did. The problem began when the judge and defense attorney became Facebook “friends” and by doing so, they were able to read and create posts on each others pages.
The defense attorney posted a question looking for suggestions on how to prove something in a case he was working on, yes, the same case that was before the judge. The attorney also posted a comment that was highly flattering to the judge. The judge posted a comment on his page about the case, indicating that he has two good parents to choose from.
The problem is that the attorney and judge were essentially engaging in ex-part communications by discussing the case outside of the presence of counsel for the plaintiff, which is strongly discouraged by the ethical rules. However, the judge’s problems didn’t stop there. He went on to search the internet and locate the plaintiff’s website displaying her photography and poems. While he was issuing his decision in court, the judge quoted from one of the plaintiff’s poems in his own decision, thereby revealing the fact that he had conducted his own outside research about the parties which is also strongly discouraged by the ethical rules.
The moral here is if an attorney or judge is going to make the choice to communicate with friends and family via a social networking website, make sure the boundaries of ethical obligations regarding such communications are clear and stay as far away from them as possible.
Friday, March 4, 2011
Failure to Timely File in Workers’ Compensation Can Be Malpractice
Lawyers have a duty to represent their clients competently no matter what type of case it is. A lawyer’s failure to do so can result in a legal malpractice claim against him or her. For example, even a case that seems straightforward, like a workers’ compensation injury, can quickly go awry if the lawyer makes a costly error.
A client is injured at work and seeks medical treatment in addition to advice from a lawyer. The lawyer works with the client to get her weekly checks started and her medical bills covered. Once the client has completed her medical treatment, and the doctor has determined that she has reached maximum medical improvement, the lawyer has a duty to get the information from the doctor and file certain paperwork with the workers’ compensation commissioner in a timely manner to ensure that the client receives all of the benefits she is due. Failure to do so could bar the client from part of her recovery.
Something as simple as a failure to follow-up on a medical record or file a form can cost a client greatly. If your lawyer screwed up your workers’ compensation case call our office today to discuss your options.
A client is injured at work and seeks medical treatment in addition to advice from a lawyer. The lawyer works with the client to get her weekly checks started and her medical bills covered. Once the client has completed her medical treatment, and the doctor has determined that she has reached maximum medical improvement, the lawyer has a duty to get the information from the doctor and file certain paperwork with the workers’ compensation commissioner in a timely manner to ensure that the client receives all of the benefits she is due. Failure to do so could bar the client from part of her recovery.
Something as simple as a failure to follow-up on a medical record or file a form can cost a client greatly. If your lawyer screwed up your workers’ compensation case call our office today to discuss your options.
Thursday, February 24, 2011
Musician’s Estate Files Legal Malpractice Claim
Mama Cass from the iconic musical group, the Mamas and the Papas, passed away in 1974. At that time, her attorney’s office informed her mother that Cass did not have a will with their office and failed to advise Cass’ mother of a large bank claim against the estate.
There have been allegations made of the firms’ ongoing legal relationships with one or more creditors filing claims against Cass’ estate, which the law firm failed to disclose. Once Cass’ mother discovered these conflicts, she fired the law firm as attorneys for the estate. It turns out that Cass did in fact draft a will, which her lawyers negligently failed to produce after her death. Under the will Cass intended to have her estate shared with her mother and her daughter. But due to the law firm’s negligence, Cass’ estate was not distributed in accordance with her will, but instead it was distributed according to the laws of intestate.
Now that Cass’ mother has passed away, her children have filed suit against Cass’ original attorneys claiming their mother lost the one third of Cass’ estate which was provided for in Cass’ will. They have filed claims of legal malpractice, negligent misrepresentation and fraud.
This goes to show that a law firm can be liable for legal malpractice for something as basic as failure to produce a will when it counts most. Mistakes like this case happen and our experienced attorneys can help you recover.
There have been allegations made of the firms’ ongoing legal relationships with one or more creditors filing claims against Cass’ estate, which the law firm failed to disclose. Once Cass’ mother discovered these conflicts, she fired the law firm as attorneys for the estate. It turns out that Cass did in fact draft a will, which her lawyers negligently failed to produce after her death. Under the will Cass intended to have her estate shared with her mother and her daughter. But due to the law firm’s negligence, Cass’ estate was not distributed in accordance with her will, but instead it was distributed according to the laws of intestate.
Now that Cass’ mother has passed away, her children have filed suit against Cass’ original attorneys claiming their mother lost the one third of Cass’ estate which was provided for in Cass’ will. They have filed claims of legal malpractice, negligent misrepresentation and fraud.
This goes to show that a law firm can be liable for legal malpractice for something as basic as failure to produce a will when it counts most. Mistakes like this case happen and our experienced attorneys can help you recover.
Friday, February 18, 2011
Best Case Forward at Trial
Once the decision has been made to put a case on at trial, there are many important pre-trial preparations that must be made. The lawyer will take the months leading up to the trial to get all of the evidence organized and line up all of the witnesses. Another important part of the trial preparation period is getting the client up to speed on the process and what to expect during the trial.
Mistakes can be made both during the trial preparation period and while the case is being presented at trial. For example, if the lawyer is unable to call main expert witnesses to testify at trial because of her failure to timely disclose the expert, and the client’s case suffers as a result, the lawyer may have committed legal malpractice.
If your lawyer failed to put your best case forward at trial, she may have committed legal malpractice and you may have options available to you, we can help.
Mistakes can be made both during the trial preparation period and while the case is being presented at trial. For example, if the lawyer is unable to call main expert witnesses to testify at trial because of her failure to timely disclose the expert, and the client’s case suffers as a result, the lawyer may have committed legal malpractice.
If your lawyer failed to put your best case forward at trial, she may have committed legal malpractice and you may have options available to you, we can help.
Thursday, February 10, 2011
Waiting too Long Can be Costly
If a lawyer does not file a case in time - the statute of limitations is blown. With very few exceptions that means the plaintiff (the person bringing the suit) has lost their rights. Sometimes there are ways around it such as the accidental failure of suits statute, or maybe a different claim can be brought. Just maybe there is more time on the statute of limitations, it is not always an easy calculation.
Years ago a client came in and said my lawyer told me he missed the statute of limitations and that I should get a lawyer to sue him. Well the lawyer did make a mistake, he used the wrong statute to figure the statute of limitations. It turned out there was plenty of time to sue. I told the client to go back to the lawyer and have them bring the claim. The lawyer said no - great news - have Stanger do it for you. We did and recovered a good deal of money for the client. The lawyer was not sued.
This demonstrates two things.
First even though the lawyer screwed up in his calculation there really was time for the client to still pursue the claim. Even though the lawyer screwed up there was no point in suing him as there was still plenty of time to sue the original defendant. The lawyers screw up did not cause any damage to the client other than a few scary days. Life is good - our client did well, we had a very happy client because we knew what we were doing and the system worked. The correct person was sued and paid - the one that really caused the damage.
Second if the lawyer had really blown the statute, eliminating the client's right to sue, he would have caused the damage and he would have been the right one to sue. We would have won that case as well. Our client would have been ok.
If you have questions about the statute of limitations, if you have lost confidence in your lawyer, or if your lawyer screwed up, contact our office, to discuss your legal malpractice options.
Years ago a client came in and said my lawyer told me he missed the statute of limitations and that I should get a lawyer to sue him. Well the lawyer did make a mistake, he used the wrong statute to figure the statute of limitations. It turned out there was plenty of time to sue. I told the client to go back to the lawyer and have them bring the claim. The lawyer said no - great news - have Stanger do it for you. We did and recovered a good deal of money for the client. The lawyer was not sued.
This demonstrates two things.
First even though the lawyer screwed up in his calculation there really was time for the client to still pursue the claim. Even though the lawyer screwed up there was no point in suing him as there was still plenty of time to sue the original defendant. The lawyers screw up did not cause any damage to the client other than a few scary days. Life is good - our client did well, we had a very happy client because we knew what we were doing and the system worked. The correct person was sued and paid - the one that really caused the damage.
Second if the lawyer had really blown the statute, eliminating the client's right to sue, he would have caused the damage and he would have been the right one to sue. We would have won that case as well. Our client would have been ok.
If you have questions about the statute of limitations, if you have lost confidence in your lawyer, or if your lawyer screwed up, contact our office, to discuss your legal malpractice options.
Wednesday, February 2, 2011
Settlement vs. Trial
Settlement talks and negotiations are an important tool in trying to obtain a positive resolution for clients. Lawyers often begin negotiations early on in the process and they continue right up until the jury goes in to deliberation. Many clients often prefer to have their case settle without having to go through the lengthy, expensive trial process.
However, sometimes settlement negotiations can reach a point where both parties are at a “stand off”. At that point, the lawyer and client must make a decision about whether or not to settle the case for the offered lesser amount or expend the time and money taking the case to trial to see what a jury would award.
There are many reasons to avoid going to trial, but a lawyer either not being prepared to go to trial or not wanting to go to trial are not appropriate reasons for a client to settle his or her case. Call another attorney before settling your case if there is a lot of pressure to settle. Article: If Talk Fails, Will Your Attorney Take Action?
However, sometimes settlement negotiations can reach a point where both parties are at a “stand off”. At that point, the lawyer and client must make a decision about whether or not to settle the case for the offered lesser amount or expend the time and money taking the case to trial to see what a jury would award.
There are many reasons to avoid going to trial, but a lawyer either not being prepared to go to trial or not wanting to go to trial are not appropriate reasons for a client to settle his or her case. Call another attorney before settling your case if there is a lot of pressure to settle. Article: If Talk Fails, Will Your Attorney Take Action?
Wednesday, January 26, 2011
Does a Legal Malpractice Claim Mean the Attorney is a Bad Attorney?
A question sometimes contemplated by clients, especially after they learn their current attorney has been successfully sued for legal malpractice, is “should I get a new attorney?” The truth is, sometimes even the best, brightest and most well-meaning attorneys or their staff make mistakes that can cost their client a case. That does not mean that they are serial offenders, it may have been a one-time occurrence which they have learned from and not repeated. The only way, as a client, to determine whether or not you should remain with your current attorney, despite a finding of legal malpractice against them, is to determine whether they are diligently and competently handling your case. Just as in considering the advice of a doctor, it does not hurt to get a second opinion.
Everyone makes mistakes and that is why attorneys, like doctors, carry malpractice insurance, in the event that they make a mistake. Just because a mistake was made on another client’s file that amounted to a legal malpractice suit against the attorney, does not mean that you can expect the same thing to happen to your case. However, ultimately the decision of whether a client chooses to stay with his/her current attorney is up to the client. Give us a call if you think we can help.
Everyone makes mistakes and that is why attorneys, like doctors, carry malpractice insurance, in the event that they make a mistake. Just because a mistake was made on another client’s file that amounted to a legal malpractice suit against the attorney, does not mean that you can expect the same thing to happen to your case. However, ultimately the decision of whether a client chooses to stay with his/her current attorney is up to the client. Give us a call if you think we can help.
Tuesday, January 18, 2011
Legal Malpractice in Divorce Actions
When a person is making the difficult decision of whether or not they should file for a divorce from their spouse, they often seek legal advice from a lawyer. The lawyer is trained in the complex issues and is expected to give good advice. They look to the lawyer to provide guidance and protect their interests during a time when they might not be thinking as clearly and level headed as they normally do. If the lawyer does not fulfill her responsibilities to the client then the lawyer should pay damages to the client.
If, for example, the lawyer fails to file the appropriate motions in Court to help the client pursue an order for alimony or child support on modification and the client is unable to have the order be retroactive the lawyer may be liable for legal malpractice. If the client meets with a lawyer for advice about a divorce action, but that lawyer has represented the client’s spouse for other related matters in the past or at present, the lawyer may be liable for legal malpractice. If the lawyer draws up documents which result in damages to the client because they are unclear, do not cover points that they should or in some cases are simply different than the agreement they lawyer may be liable in legal malpractice. Some of these areas are very technical such as division of retirement assets, QDRO, transfer of real estate, income tax issues and questions regarding estate taxes. Your lawyer will probably not be up to speed on every issue; expect your lawyer to tell you so and to involve someone else they will recommend such as your accountant or a lawyer who specializes in a certain area such as the QDRO, in the process.
Family cases are particularly emotional times for people and they rely a great deal on the counsel provided by their lawyer. If your lawyer failed to handle your divorce action properly, call our office today to discuss your options.
If, for example, the lawyer fails to file the appropriate motions in Court to help the client pursue an order for alimony or child support on modification and the client is unable to have the order be retroactive the lawyer may be liable for legal malpractice. If the client meets with a lawyer for advice about a divorce action, but that lawyer has represented the client’s spouse for other related matters in the past or at present, the lawyer may be liable for legal malpractice. If the lawyer draws up documents which result in damages to the client because they are unclear, do not cover points that they should or in some cases are simply different than the agreement they lawyer may be liable in legal malpractice. Some of these areas are very technical such as division of retirement assets, QDRO, transfer of real estate, income tax issues and questions regarding estate taxes. Your lawyer will probably not be up to speed on every issue; expect your lawyer to tell you so and to involve someone else they will recommend such as your accountant or a lawyer who specializes in a certain area such as the QDRO, in the process.
Family cases are particularly emotional times for people and they rely a great deal on the counsel provided by their lawyer. If your lawyer failed to handle your divorce action properly, call our office today to discuss your options.
Thursday, January 13, 2011
Legal Malpractice in Personal Injury Actions
When a person is involved in an automobile accident and suffers injuries as a result of another party’s negligence, often times the injured person will seek advise and representation from a lawyer. If the lawyer decides to take the case, they will begin work by gathering the appropriate documentation to pursue the claim.
If the lawyer fails, for whatever reason, to file suit before the statute of limitations, the lawyer may be liable for legal malpractice. Suppose the lawyer did file suit before the statute of limitations but they failed to return the Complaint to the Court. The client’s case may be dismissed and the lawyer may be liable for legal malpractice.
Yet another example, after the lawyer files suit, returns the Complaint to Court and begins the discovery process, they determine that they filed suit against the wrong party, but the statute of limitations has passed to bring an action against the correct party. The client’s case may suffer as a result of this error and the lawyer may be liable for legal malpractice.
There is no such thing as an “easy case”. Each case deserves the time and attention necessary to bring the case to an appropriate result. If your lawyer failed to properly handle your personal injury claim, contact our office today to discuss your potential legal malpractice options.
If the lawyer fails, for whatever reason, to file suit before the statute of limitations, the lawyer may be liable for legal malpractice. Suppose the lawyer did file suit before the statute of limitations but they failed to return the Complaint to the Court. The client’s case may be dismissed and the lawyer may be liable for legal malpractice.
Yet another example, after the lawyer files suit, returns the Complaint to Court and begins the discovery process, they determine that they filed suit against the wrong party, but the statute of limitations has passed to bring an action against the correct party. The client’s case may suffer as a result of this error and the lawyer may be liable for legal malpractice.
There is no such thing as an “easy case”. Each case deserves the time and attention necessary to bring the case to an appropriate result. If your lawyer failed to properly handle your personal injury claim, contact our office today to discuss your potential legal malpractice options.
Wednesday, January 5, 2011
What Happens When Your Attorney Doesn’t Follow Procedure?
Attorneys who practice in the state of Connecticut have to follow certain Rules of Practice. The Rules of Practice advise an attorney of everything from when and how to file a lawsuit to what the evidentiary requirements are during trial. When an attorney agrees to handle a case for a client, they do so with the intention of pursuing the matter in accordance with the Rules of Practice.
Sometimes an attorney will screw up, make an error, incorrectly file a document or miss a filing deadline. These may not seem like significant errors, but they have the potential of being detrimental to a client’s case. For example, if an attorney fails to file the initial lawsuit before the statue of limitations, the client’s case may be dismissed and the injured client may not be able to seek recovery for their damages. This type of an error could result in a legal malpractice claim against the attorney.
The same type of error can occur even after the initial lawsuit paperwork has been filed. Another example would be if the opposing attorney files a motion that would dismiss the case; the Rules of Practice allow a certain amount of time for the client’s attorney to file a response. If the attorney fails to file a response, or misses the filing deadline, the client’s case may be dismissed and the attorney could be liable for legal malpractice.
The Rules of Practice don’t just apply to one type of case. Attorneys have to adhere to these rules for any type of action they file. The Circus is in Town – Divorce Litigation Style is an article addressing the procedures in family cases.
These unfortunate situations do happen. If they have happened to you, we can help. Contact our office today to discuss your legal malpractice options.
Sometimes an attorney will screw up, make an error, incorrectly file a document or miss a filing deadline. These may not seem like significant errors, but they have the potential of being detrimental to a client’s case. For example, if an attorney fails to file the initial lawsuit before the statue of limitations, the client’s case may be dismissed and the injured client may not be able to seek recovery for their damages. This type of an error could result in a legal malpractice claim against the attorney.
The same type of error can occur even after the initial lawsuit paperwork has been filed. Another example would be if the opposing attorney files a motion that would dismiss the case; the Rules of Practice allow a certain amount of time for the client’s attorney to file a response. If the attorney fails to file a response, or misses the filing deadline, the client’s case may be dismissed and the attorney could be liable for legal malpractice.
The Rules of Practice don’t just apply to one type of case. Attorneys have to adhere to these rules for any type of action they file. The Circus is in Town – Divorce Litigation Style is an article addressing the procedures in family cases.
These unfortunate situations do happen. If they have happened to you, we can help. Contact our office today to discuss your legal malpractice options.
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