News Flash: NY Post’s “Serial Suer” Sues Her Attorneys

The New York Post recently described attorney Eleanor Capogrosso as, “a serial suer” and, ”the city’s most litigious lady.”  No surprise here that several of her most recent lawsuits were against the attorneys who had represented her on personal matters.  Capogrosso, who has filed 15 pro se lawsuits since 2002, was described in court papers by lawyer Anthony LeCrichia as, ”An attorney who has a long history of getting other lawyers to help her and then turning around and suing not only the other lawyers, but in some cases, the judges.”   Capogrosso, in her defense says,
“I’ve had very bad luck with lawyers,” and that “They’re trying to set me up.  They’re trying to muzzle me.”

Clients who shop around the same matter to multiple attorneys because they are disatisfied with a previous lawyer’s work will likely be dissatisfied with the work that you do on their behalf.  Lawyers who are sued by a client often remark, ”I knew this one was going to be trouble,” but they took on the case without regard for what their gut was telling them.   Taking on a case that was started by another lawyer is not always a bad thing to do, and you may end up being the lawyer who saves the day, but when looking into these matters do some extra research to find out why the previous lawyer couldn’t finish the job.  Also consider asking the client:

• How many other lawyers have looked into this matter before you came to me?
• What was the reasons for your dissatisfaction with the previous lawyer’s work?
• Do you still owe the previous lawyer any fees for the work that they did on this matter?
• Are there any impending deadlines on this matter?
• Do you understand that I might have to “re-do” some of the work the previous lawyer did? 

NJ Lawyer Faces Disbarment After Secretary Reports Theft of Client Gift

A top New Jersey litigator is facing possible disbarment for taking a $50,000 “gift” from a client and not sharing the proceeds with his partners.  Last week the New Jersey Disciplinary Review Board recommended disbarment for leading product liability practitioner David Gross of Short Hills, N.J., calling his action ”willful misappropriation.”  The decision  by Gross to keep the gift was revealed to his partners after Gross’ personal secretary, Claudette McCarthy, informed them of the misappropriation four years after the action.  McCarthy admits her decision to report Gross’s actions to her firm were intended to make Gross feel embarrassed and humiliated because she felt that he had demeaned, degraded, and abused her, and had ruined her reputation at the firm.  Acts of misappropriation are punishable by automatic and permanent disbarment in New Jersey and the case now goes to the state Supreme Court for a final decision.

The case turns on whether the firm has a policy regarding client gifts, and whether Gross had a reasonable belief that the firm practice of sometimes keeping client gifts also applies when it is the gift of cash.  Details of the case can be found here and it is worth reading.  The case stands as a reminder of a few important lessons about the practice of law:

• The law office staff is at the front lines and usually they know what’s wrong in the firm long before the lawyers do;
• There is no distinction between lawyers who filch funds from clients and those who misappropriate firm money;
• No matter how unblemished your legal career has been, some actions can bring automatic disbarment;
• To avoid confusion, firms should have a written policy requiring attorneys to disclose to the firm their receipt of gifts or other items of value from clients.

Texas Justice: Honesty is the Best Policy

LawJobs.com recently published an open letter from Texas Judge Randy Wilson of the 157th District Court in Harris County, to his two children who are about to become attorneys.  The piece entitled, “A Letter to the Next Generation of Lawyers,” is pretty good advice for all lawyers who routinely see clients and are appearing before the court.  We remind lawyers all the time to, “be honest” and “keep timely,” but Judge Wilson’s advice is pretty good insight on how to get on the good side of the court — even when the recommendation goes contrary to your instincts as a zealous advocate.  For example, Judge Wilson says,

“Admit your weaknesses to the judge. If the other side files a motion for summary judgment to throw out your client’s seven causes of action, tell the judge, ‘Your honor, I will admit that the DTPA and fraud claims are weak. We probably don’t have sufficient evidence to support some of the elements of those claims. But the other five claims are absolutely good, and here’s why.’ You have just earned kudos and instant credibility with the court.” 

Click here for the entire letter from Judge Randy Wilson. 

Stress for Success?

There is a popular stress test that may have already made its way into your in-box as a viral email.  It shows two identical dolphins leaping from the water and the test indicates that, although the dolphins are identical, the number of differences you can see in them has proven to be related to the amount of stress you are experiencing.  (You can see the dolphins posted here.  Right?)   The email is a good reminder that attorney stress levels and burnout hit their peak at this time of year.  The holidays are over, vacation is a fleeting thought, and clients who have put things off are calling you to get things done.   Yes, lawyering is stressful, but beware that a steady diet of stress over time can cause the human stress-reaction system to get stuck in the “on” position, leading the brain to treat the higher heart rate as the new baseline, and it will start to look for things to stress about even during a period of relative calm.  It is possible that people can have fewer stressful episodes by happenstance, but only a conscious decision by those suffering continuous stress to rid their lives of anxiety will reduce the number of episodes they experience and lessen the severity of the events.  One of our in-depth pieces on stress was published in the October/November 2007 edition of ABA GP Solo Magazine.  Check it out for great advice on creating peace in your law practice.

Virginia is For Lovers* (*Exclusions for Lawyers May Apply)

Virginia recently joined the list of states where ethics authorities have issued an opinion that a lawyer should refrain from entering into a sexual relationship with a client.  The Ethics Committee Opinion titled Legal Ethics Opinion 1853 published on December 29 holds that, “In most situations, the client’s ability to give the informed consent required by Rule 1.7(b) is overwhelmed by the lawyer’s position of power and influence in the relationship and the client’s emotional vulnerability.”  And ultimately, that entering into a sexual relationship with a client during the course of representation can seriously harm the client’s interests.   The language of the opinion seems to leave open the door to the possibility that a lawyer and client may have a permissible non-business relationship, however the risk of running afoul of the rules of ethics is so high that it should be avoided.  Also included is a pretty good list of all the ethics rules such relationships seem to run into.  They include: (1) jeopardize the lawyer’s ability to competently represent the client (Rule 1.1), (2) wrongfully  exploit the lawyer’s fiduciary relationship with the client, (3) interfere with the lawyer’s independent professional judgment (Rule 2.1), (4) create a conflict of interest between the lawyer and the client (Rule 1.7, Rule 1.7 Comment [10], Rule 1.8(b) and Rule 1.10(a)), (5) jeopardize the duty of confidentiality owed to the client (Rule 1.6(a)), or (6) potentially prejudice the client’s matter (Rule 1.3(c)).  Additionally, a lawyer who intentionally uses the fiduciary relationship of lawyer and client to coerce sexual favors from a client may be found to have violated Rule 8.4(b)’s prohibition against a “deliberately wrongful act that reflects adversely on the lawyer’s . . . fitness to practice law.”  Also, when a lawyer solicits sexual favors in lieu of charging the client legal fees, the lawyer will have violated Rule 8.4(b).

Feel Like Taking the Professional Responsibility Exam Again?

For attorneys who are convinced they could easily pass a professional responsibility exam, take a look at our new January posting under the Take the Quiz link.  January’s quiz is a reminder that no matter how much money it may make for the firm, some partnerships are not as good as they seem.  Click here to Take the Quiz.

Facebook Creates Dilemmas for Lawyers and Clients

This month’s ABA Journal includes a piece that takes a look at the difficult situation of having a Facebook account and including your clients as “Friends.”  Michelle Rozovics, a Chicago lawyer said the decision to go on Facebook was a, “Huge, huge decision.”  She wanted to use the social network site to connect strictly with family and friends but was inundated with friend requests from former colleagues as soon as she joined the site.  “I don’t want anyone work related to know I am going to a wedding on Saturday or painting my house,” said Rozovics.  Long Beach, California attorney Jennifer Sawday sees it differently.  “My clients and I have an ongoing relationship.  I want them to come back.”  Though she doesn’t actively ”Friend” clients, she always accepts requests.  “The more connections we establish, the better,” says Sawaday.  “I’m their attorney for life.”

Dear Prospective Client: Thanks, But No Thanks

A short, to the point, non-engagement letter is often vital to establishing that an individual who thinks you might have given them deficient legal advice never had an attorney-client relationship with you, and therefore any claim for malpractice is very defensible.  We have seen over the years numerous claims brought against attorneys for what they thought was casual advice to someone who came in to their office looking for an attorney.  Sending out lots of letters to non-clients can get tiresome, so we recommend that you take a balanced approach to this process.  Not all conversations about someone’s legal matter would require sending such a letter, but if you sense that the position of the prospective client could in any way be harmed by not pursuing it with the right attorney, you should strongly consider sending a non-engagement letter advising them to seek legal counsel and that statutory deadlines may be approaching.  Since it is a form letter it should be easy to do, and it will go a long way to safeguarding your practice.  Here are three sample non-engagment letters that can be found in the online library in the MLM website:

Sample non-engagment letter One
Sample non-engagment letter Two
Sample non-engagment letter with conflicts clause

Suing for Fees, AKA: “Buying Yourself a Malpractice Claim”

Many malpractice claims come as a result of suing a client for non-payment of fees.  Typically, clients who are the subject of such lawsuits will find it to be an easy thing to file a counter-claim against the attorney, alleging that the reason they have not paid their legal fees is that the attorneys work was deficient and constitutes legal malpractice.  Although the claim is often not true and cannot be proven by the client, the result is still that the attorney with the assistance of their insurance carrier is forced to defend a frivolous lawsuit.  There are a few methods we have found lawyers use successfully to avoid fee disputes with clients.   We recommend that lawyers include an arbitration clause in their engagement agreement with their clients so that  fee disputes can be handled in a way that avoids litigation yet you can have an expectation of a reasonable outcome.    For more practical advice for the recovering unpaid fees, check out a November 2009 ABA article by practice management advisor Ed Poll.  In it he states that, “Of all the suits filed by lawyers to collect their fees, about half will cause a claim of malpractice.”   Poll’s article can be found here.

When the Deal Goes Bad Everything Looks Like a Conflict

Two published reports of malpractice lawsuits against attorneys this week illustrate the types of conflict of interest allegations that are common for attorneys involved in bad business deals.  The Blog of Legal Times, an American Lawyer Media publication, reports that Washington solo practitioner Leonard Suchanek, a former administrative law judge, alegedly failed to report several conflicts of interest to his client, a Hong Kong based cosmetics manufacturer who was allegedly victimized in an international Ponzi scheme.  Attorneys for the plaintiff found the facts about the alleged scheme and alleged conflicts to be so confusing that they had to present them multiple times at the judges request during opening statements in the trial in US District Court District of Columbia that began December 7.   In an unrelated matter, this story reported by Courthouse News Service involves an alleged conflict of interest by a California attorney who is accused of representing a company and the company’s former president.  attorneys should always resist the urge to represent both a business and the company officers, but all to often they are routinely asked by their clients to ignore the potential for conflicts of interest.  It’s when the deal goes bad that the allegations of conflicts of interest start to come out.