This is an important issue in legal malpractice litigation – what happens to the communications between lawyers in a law firm and their in-house counsel. In this case the Oregon Supreme Court has recognized that those communications are privileged under the attorney-client privilege.
Oregon’s Evidence Code has a pertinent provision:
A lawyer converted $1300 in client funds and loaned those funds to his sick brother. He later repaid the funds to the client. However, the ARDC opened an investigation and the deception was found out. The ARDC hearing board recommended a censure. The Review Board increased the sanction to a 30 day suspension.
The Panel explains:
The Lawyer’s Duty of Candor to the Client – Should It Be Formally Defined?
Is it ever appropriate to lie to your client? Judge Raymond J. McKoski, an adjunct professor of law at John Marshall Law School, has posted a thoughtful article on the lawyer’s duty of candor to the client. The article is titlted: “The Truth Be told: The Need for a Model Rule Defining a Lawyer’s Duty of Candor to a Client.” A link to the paper can be found here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2419494.
McKoski notes that Model Rule of Professional Conduct 4.1 “bars a lawyer from making a false statement of material fact to a third person in connection with the representation of a client.” He notes, however, “there is no Model Rule establishing and defining a lawyer’s duty of candor to a client.” McKoski believes that there should be such a rule. Indeed, he proposes the addition of a new subsection (c) of Model Rule 1.4 which would provide as follows:
Each year the ARDC files many cases against lawyer who convert funds from client trust accounts. This case is slightly different. The ARDC has charged one member of a two-member firm with failing to (a) maintain accurate and complete client trust account records and (b) failing to make “reasonable efforts” that the other lawyers in the firm were in compliance with the Rules of Professional Conduct.
This is a case alleging inadvertent conversions of client funds due to a lack of record-keeping by the lawyers and the firm. There were several bounced checks and some clients apparently had to wait longer than they should have to receive their settlement checks.
This is an unpublished case, captioned, In re Marriage of Marie Brinkley v. Leonard Przysucha, 2014 Ill App (1st) 131397-U. The case is a dispute over child support obligations. The respondent allegedly had a large balance of unpaid child support. The petitioner, however, had obtained a bankruptcy discharge and did not disclose the child support claim in her bankruptcy petition.
The leading case on the issue is Berge v. Mader, 2011 IL App (1st) 103778. In that case, the court held that the petitioner was judicially estopped from pursuing the child support claim because she failed to disclose it in her bankruptcy papers.
In the Brinkley case, which is arguably identical, the lawyers for petitioner did not disclose the contrary authority and were sanctioned. The Court explained: ”
Vermont has reprimanded a judge for failing to rule promptly in a family court matter involving the guardianship of a minor child. This is the first time I have ever seen a member of the judiciary disciplined for a lengthy delay in a ruling.
In November 2001, the respondent judge granted the child’s grandfather to be his guardian.
MATTER OF NOVINS, 2014 NY Slip Op 3465 – NY: Appellate Div., 1st Dept. 2014 – Google Scholar.
Some of the facts set forth in ethics cases are almost impossible to believe. This is one such case where an associate of a law firm agreed to assist a former client with a legal malpractice case against his employer.
After a personal injury case was lost, and the client threatened to sue the firm for legal malpractice, an associate of the law firm contacted the aggrieved client and negotiated a written contingency fee agreement with the aggrieved client.
This post is off-topic, but it is important to bloggers and writers. My initial reaction to this decision was “Whew.”
This blog often reports on cases that have been filed. When a complaint is filed, I may write a blog post even though the allegations in the complaint have not been put to the test of proof. Obviously, allegations that have not been proven are not facts, but they could become established facts after a trial.
Catalanello sued Zachary Kramer, a law professor, who wrote and article and gave a speech in which he discussed allegations that were made against Catalanello in a sexual harassment lawsuit. The plaintiff in the underlying case alleged that Catalanello harassed him for being gay. Catalanello disputed the claims. The case was later dismissed with prejudice, possibly due to a settlement.
This is a legal malpractice case arising out of a defense of a workers compensation claim. West Bend alleged that the defense counsel retained to handle the workers compensation claim did not meet their professional duties because they conceded liability and failed to prepare an adequate defense, including failing to adequately depose the treating physician and failing to develop a causation defense.
Judge Guzman dismissed the complaint pursuant to Rule 12(b)(6) on the grounds that the record demonstrated that the lawyer defendants did not concede liability and failed to plead causation. The opinion explains:
This is a legal malpractice case in which the plaintiff, after enormous effort, obtained a damages award of $2000 at trial. The Appellate Court affirmed the damage award. Unfortunately, the Appellate Court issued an unpublished opinion, Hubertus Investment Group v. Smiegelski & Wator, P.C., 2014 IL App (1st) 131927-U. This case is an example of a case where there may have been negligence, but the damages were minimal.
On May 7, 2009, Hubertus entered into a contract to purchase 12 vacant properties in Chicago, Illinois, from Dragan Radojcic for the sum of $190,000. The closing was scheduled for June 1, 2009. Hubertus alleged that the lawyer defendants were negligent because they failed to secure water certificates from the City of Chicago and because they failed to obtain title to a lot at 4407 West Fulton in Chicago, Illinois. The Fulton lot was appraised at a value of $2000. The water certificate (when obtained) proves that the water bill of the City of Chicago has been paid.
Hubertus also alleged a breach of title commitment against Chicago Title. However, on January 23, 2013, CTIC “produced, executed and recorded quitclaim deeds encompassing 11 of the 12 properties; the remaining property at 4407 West Fulton had been sold for taxes.” The trial court ultimately granted summary judgment in favor of Chicago Title. The case proceeded to trial against the lawyer defendants.
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