Your Lawyer May Be Bare

Your lawyer probably has insurance for her car - the law requires it. But unfortunately the law does not require an attorney to have insurance to protect her clients against her screw ups. So if a lawyer is negligent in driving his car there has to be insurance. If a lawyer is negligent in representing a client - no insurance required. This is an article I wrote some years ago suggesting that lawyers should be required by law to have insurance. Insurance to protect clients. The lawyers dont like that, or at least most of the organized bar does not. So a compromise has been suggested which I support as a great first step. Lawyers will be obligated to disclose to the government what insurance they have and that information will be posted on the internet. An interesting first step, but in my view not enough. Why not require insurance? Why not require each lawyer to disclose in writing to his or her clients what insurance they do have or that they do not have any insurance at all? More about this in another post to come.

Court Order Trumps Facebook Privacy

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!

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.

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.

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.

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.

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.