2nd Annual Solo & Small Firm Conference

Illinois State Bar Association

September 14-16, 2006
Pheasant Run Resort St. Charles, IL

Presented By
Thomas W. Dillon
Konicek & Dillon, P.C.
Geneva, Illinois


Avoiding Legal Malpractice Claims in Solo and Small Firms

Lessons Learned from Common Legal Malpractice Claims


Avoiding Legal Malpractice Claims in Solo and Small Firms

Q: What is legal malpractice?
A: "Legal malpractice is not a failure to be brilliant, but a failure to come up to even a minimum standard of professional competence."

  • McKnight v. Dean, 270 F.3d 513 (7th Cir. 2001)

Q: What is a minimum standard of professional competence?
A: "the failure to do something that a reasonably careful lawyer [practicing in the same or similar localities] would do, or the doing of something that a reasonably careful lawyer would not do" under similar circumstances.

  • Illinois Pattern Instruction 105.01; Professional Negligence- Duty

Q: What does (or would) a reasonably careful lawyer do to avoid committing malpractice?
A: It depends on the nature of the representation, the practice, the client, time limitations, financial constraints imposed by the client, and myriad other variables.

Q: If it depends on the circumstances, then how can this presentation help avoid claims?
A: By examining common grounds for malpractice claims, we can learn mistakes to avoid, practices and procedures to adopt, and methods to minimize the likelihood of claims.

Q: Won't the focus on avoiding legal malpractice liability lead to practicing law defensively?
A: Maybe, but doubtful. Fewer mistakes means better service for clients. Remember, the first beneficiary of avoiding legal malpractice liability is your client.


Lessons Learned from Common Legal Malpractice Claims

Common Malpractice Claim Category One: Violations of Rules (Codes) of Professional Conduct

Malpractice Prevention Tip: Comply with Rules of Professional Conduct

Lesson 1: The Standard of Care for a Reasonably Careful Attorney Begins (but does not end) with the Illinois Rules of Professional Conduct 1

Lawyers who violate the RPC are more likely to have unhappy clients, and unhappy clients tend to assert legal malpractice claims.

The Rules of Professional Conduct (RPC) can be relevant to a claim for legal malpractice, but the rules are not "an independent font of tort liability."

  • Nagy v. Beckley, 218 Ill.App.3d 875, 578 N.E.2d 1134 (1st Dist. 1991)

This does not mean that the RPC have no bearing in a malpractice suit. To the contrary, violations of the rules can have a powerful effect on a jury, particularly one comprised of people with unfavorable (but unspoken) ideas about the legal profession. A lawyer who violates the rules "must be a bad lawyer," the thinking goes.

There are important limitations on the relevance and admissibility of the RPC. Examples:

  1. A violation of a rule is not per se admissible — it must bear some relationship to the alleged malpractice and there should be some expert testimony to accompany it;
  2. What happens at the ARDC stays at the ARDC, except for matters identified in Supreme Court Rule 766. A Request for Investigation by a client that leads only to an investigation, with no further action taken, is "private and confidential." (S.Ct.R 766(a)(1)).

The following rules are often relied upon by plaintiffs in legal malpractice lawsuits. Complying with these rules can dramatically reduce your risk of becoming a defendant in a legal malpractice case.

  1. 1.1 Competence: Do not handle matters that are beyond your reach (See "Do Not Dabble" below).
  2. 1.2 Scope of Representation: Represent only the client you intended to represent and handle only what you agreed to handle; inform the client of the limits of your representation, and advise the client to hire another attorney for matters outside the scope of your representation (See "Know the Client" below).
  3. 1.4 Communication: Give your client information and explanation promptly and to the extent necessary for your client to make informed decisions about the representation (See "I Didn't Have Time to Write a Short Letter, so I Wrote a Long One Instead" below).
  4. 1.5 Fees: Charging a reasonable fee does not mean billing as much as possible or funding your retirement with one matter; and pursuing a client for unpaid fees is almost always an invitation to participate in a legal malpractice lawsuit — as a defendant (See "The More You Chase Money, the Harder It Is to Catch It" below).
  5. 1.6 Confidentiality of Information: You have the obligation to remain silent, but the obligation has its limits. Know when you cannot and when you must reveal client confidences (See "Never Say Anything Unless You Have To" below).
  6. 1.7, 1.8, 1.9 Conflicts of Interest: Give each client undivided loyalty, put each client's interests ahead of your own, and tell a client or potential client when you are unable to do so (See "No Matter Who Loses, the Lawyer Always Wins" below).
  7. 1.16 Refusing, Ending Representation: Properly decline to work for clients who will be trouble, and when leaving an attorney-client relationship, make sure the door does not hit you on the way out (See "Just Say No! (In Writing)" below).

Of course, all the rules are important, but the rules above tend to show themselves in legal malpractice cases more than most. If you haven't read the RPC in a while, find them online at www.iardc.org. Consult them regularly to ensure compliance.


Lesson 2: "Do Not Dabble"

Dabblers stray from what they do best and often end up "on the wrong side of the v" in malpractice litigation. Stick to what you do best and you're likely to consistently provide a high level of service to your clients. Dabbling or "doing it as a favor" usually helps no one, as the favor often falls to the lowest rung of the "to-do" ladder. The client suffers from delayed completion, missed deadlines, or less than competent representation.

Expert testimony is required in most legal malpractice cases to establish the standard of care, that is, what a reasonably careful lawyer would do under the circumstances. The RPC is a starting point for standard of care testimony in most if not all instances, because a reasonably careful lawyer complies with the rules, including and particularly the rules requiring that a lawyer be competent, diligent, etc. Keeping your practice focused, without dabbling, is an excellent way to ensure that you have the competence necessary to handle matters for your clients.

Bottom line: If you are a real estate lawyer, don't try to litigate your neighbor's anti-trust case. Instead, refer your neighbor to someone who concentrates in anti-trust litigation. Your neighbor, the client, is likely to be better served, and you are likely to remain claim-free.


Lesson 3a: "Know the Client"

"The client" should be known in no uncertain terms. This may seem to be a ridiculous statement, but a vast number of legal malpractice lawsuits involve confusion over whom the lawyer actually represented.

A letter of engagement or retainer agreement should specifically identify the client and eliminate possible confusion.

Example: if the client is a small corporation, specify this in the retainer agreement or engagement letter to make certain that the shareholders of the corporation understand who the client is, know who will benefit from your work, and know who will receive your reports, and so you know to whom you must report, to whom (or what) you owe fiduciary duties, and who will make decisions regarding the representation.

Bottom line: Know from the start whose interests you are advancing and protecting.


Lesson 3b: "Know the Scope of Representation"

Failing to delineate the extent of your representation can lead to charges that you failed to do something the client thought or expected that you would do. Prepare a specific statement of the scope of your representation and have the client approve the statement in writing. Advise the client in writing to seek the advice of another attorney where necessary, and have the client acknowledge your advice to seek additional counsel.

This is important, because "the breadth of the duty from the attorney to the client is measured by the representation sought by the client and the scope of the authority conferred on the attorney by the client."

  • York v. Stiefel, 109 Ill.App.3d 342, 440 N.E.2d 440 (3rd Dist. 1982), rev'd in part on other grounds, 99 Ill.2d 312, 458 N.E.2d 488 (1984)

Misunderstandings over what clients hired their lawyers to do frequently arise in legal malpractice cases. Lawyers must be very explicit in excluding matters from their representation, particularly when then there are claims arising from a single incident (e.g., workers' compensation and third-party personal injury claims; third-party injury and uninsured-underinsured motorist claims) or when the client has a reasonable expectation that the lawyer is handling a matter on the client's behalf.

  • Keef v. Widuch, 321 Ill.App.3d 571, 747 N.E.2d 992 (1st Dist. 2001)

Watch for casual remarks from a client about legal problems outside the scope of the matter you are handling — advice you give, even casually, can lead the client to take action (or not take action) that could damage the client and lead to a malpractice claim.

For real estate transactions, what does your fee include? Will you represent the client if there are wrinkles that complicate the transaction? What rate will you charge?

Bottom line: Do not unintentionally expand your duties to your client — it can hurt both of you.


Lesson 4: "I Didn't Have Time to Write a Short Letter, so I Wrote a Long One Instead" 2

What you say on a single sheet of paper can be all that stands between you and a viable claim for legal malpractice. "He-said, She-said" litigation usually ends up in front of a jury. When there is documentation to confirm advice given by a lawyer, information from the client on which the advice is based, dates of meetings with clients, authorization to act, and confirmation of significant events in the representation, the battle of who-said-what takes on a different appearance.

Inform clients in writing of settlement offers; confirm in writing a client's authorization to accept, reject or make an offer to settle; confirm in writing the client's authority to make a demand to settle.

For domestic relations, report in writing all court dates, discovery requests, demands of any kind, substantive conversations with opposing counsel, and other pertinent information the client requests.

For wills, trusts and estate planning, confirm in writing the assets the client has and wishes to protect, bequeath or entrust; confirm the beneficiaries of the client's gifts; confirm the client's objectives; confirm if the client rejected alternatives that you suggested. If you document matters like these, when a would-be beneficiary later complains that you committed malpractice by depriving the would-be beneficiary of an inheritance, you will have evidence for your defense: documentation of your client's instructions to you and your advice to your client. (FYI: such documents are admissible in legal malpractice cases filed by beneficiaries or would-be beneficiaries when they contain information the lawyer relied on, even though they are usually hearsay. The Dead Man's Act similarly should not be a bar to admissibility of such documents as the "dead man" (or his estate) is not a party to the lawsuit).

Consider videotaping meetings to document what your client tells you and what you tell your client. Your client must consent, of course, but it is an excellent way to document what occurs.

Confirm your conversations with experts in writing, such as a letter to the client or a contemporaneous memo to your file (being careful not to waive privileges). If an expert or consultant provides a negative review or analysis of your case, confirm it in writing to the client. This keeps the client informed and protects you from a variety of later claims.

Bottom line: If they hear it, they might believe it. If they read it, they know it's true.


Lesson 5: "The More You Chase Money, the Harder It Is to Catch It" 3

Do not sue clients for fees. If you sue clients for fees, you are likely to find yourself a defendant in a counterclaim for professional negligence, valid or not. If your client counterclaims, chances are that you will pay a deductible, lose time away from your practice to meet with your attorney, testify in deposition, or attend an arbitration or trial. Before you file a lawsuit for fees, ask yourself, is it worth it?

The better practice is to make fees less of a focus in the attorney-client relationship. Instead, focus on better client service and establishing and achieving client objectives. With the client reminded that his or her interests are your primary focus (as opposed to your own interest in being paid), your client will be well-served and may: (1) see more value in the work you perform; (2) be more willing to pay you; (3) refer other clients to you; (4) be less likely to submit a complaint about you to the ARDC. Responding to ARDC complaints takes time and energy away from your practice, and can take an emotional toll as well. Why not avoid the headache?

This is not to suggest that you work free of charge. To the contrary, it's a suggestion that there may be more effective ways to ensure payment than to demand it at every turn.

No matter what, a lawyer's fee must be reasonable. Do not overcharge. While this seems to be obvious, for some it is not: statutory fee provisions can limit fees (e.g. claims involving personal injury to minors, medical negligence cases). Any fee above the statutory amount is likely to be considered unreasonable and potentially result in discipline against the lawyer.

Do not do unnecessary work for the sake of billing. Keep in mind that "it is the duty of all lawyers to seek resolution of disputes at the least cost in time, expense and trauma to all parties and to the courts." (Illinois RPC, Preamble).

On referral cases, comply with RCP 1.5. Client consent is necessary for fee-sharing on referred matters, and the referring lawyer assumes the same responsibility for handling the case as would a partner of the "receiving" lawyer.

Bottom line: People in litigation or otherwise in need of legal services are often enduring difficult times. A little understanding and adherence to the RPC can keep you rich with happy clients.


Lesson 6: "Never Say Anything Unless You Have To" 4

Lawyers know that their silence is golden. The bedrock of legal representation is confidentiality, but that does not preclude disclosure of sensitive client information in all circumstances. Confidentiality can yield to a public interest, a claim for fees, or defense of a lawyer in a malpractice or ARDC investigation. Consider whether a public interest could arise in the context of your representation and consequently jeopardize the otherwise inviolable confidentiality of attorney-client communications. Disclose the risk that confidential information could be subject to mandatory disclosure so the client can determine whether to divulge sensitive information to you. It is the client's privilege to keep or lose. You won't be punished for what a client says to you, but you might be punished for what a client tells you that you do not tell others if obligated to do so.

Review RPC 1.6(b) and 1.6(c) for their applicability to your practice. Consider the Sarbanes-Oxley legislation and RPC 1.13. It is axiomatic that a violation of attorney-client confidentiality can lead to a malpractice claim. Therefore, honor the confidentiality of communications with clients and warn them when confidentiality might be jeopardized by a public interest or a duty to disclose.

Watch for inadvertent waivers of confidential information. The attorney-client privilege can be waived completely with a single disclosure; in other words, one cannot selectively waive the privilege. For example, the attorney-client privilege may be impliedly waived when the client asserts claims or defenses that put his or her communications with an attorney adviser at issue in litigation.

  • Lama v. Preskill, 353 Ill.App.3d 300, 818 N.E.2d 443 (2nd Dist. 2005)

Bottom line: Keep confidences confidential and when you must disclose, disclose only what is reasonably necessary to comply with your obligations to report.


Lesson 7: "No Matter Who Loses, the Lawyer Always Wins"

This "American Proverb" is not intended to be encouragement. To the contrary, it is recognition that in a conflict-of-interest the lawyer wins but at least one of the lawyer's clients loses. A lawyer cannot properly serve two masters with divergent interests. Invariably, the interests of one client succumb to the conflict and the benefit of the other client. The lawyer, meanwhile, is paid by both clients, but serves neither well. An undisclosed conflict of interest is almost certain to damage at least one client, and is a virtual invitation to litigation and a report to the ARDC.

Clients are typically unable to perceive that conflicts of interest exist. They do not know the lawyer's or law firm's roster of clients, and even if they did, they don't have the information needed to determine that there is a conflict of interest. In addition, it is the lawyer's obligation to check for conflicts. If they exist, the lawyer must determine the appropriate action: (1) mandatory withdrawal or declination of representation; (2) informing the client(s) and obtaining written authorization to continue in the representation with a waiver of the conflict of interest; or (3) other action (screening an attorney or paralegal, etc.) the lawyer determines to be appropriate under the circumstances.

Bottom line: The client must be informed of real and potential conflicts of interest. Err to the side of caution when deciding to tell a client that a conflict of interest might exist.


Lesson 8: "Just Say No! (In Writing)"

Avoid problems by avoiding potential clients who are problematic. This is not as easy as it seems with all prospective clients. For some, you will have no choice but to try the methods Malcolm Gladwell outlines in Blink: go with your first thought, your instinct or your gut to avoid representing people who will pose problems. For others, you have warning signs telling you what type of client you will be dealing with.

There are several client types. Some of them are described below:

  1. The "Frequent Flyer": This client sues, or gets sued, often. In many instances the person has been sued for fees by previous lawyers. Watch out! You could be the next lawyer who goes unpaid.
  2. The "X-Filer": This is the client who complains about the conspiracy at work, at a hospital, in family, among lawyers, and, sometimes involving judges with the misfortune of being the random assignee of the X-Filer's case. Of course, the conspiracy is always at the expense of the X-Filer. Represent this client and you'll soon be part of the conspiracy.
  3. The "Poker Player": This client withholds too much information, often thinking that he knows better than you what information is necessary for you (and others) to know. You learn after someone calls his or her bluff and after hours of work and thousands of dollars in costs that the client is not someone you want to represent. Represent this client and you'll say "Deal me out."
  4. The "Monty Python": This client moves from lawyer to lawyer, searching for the Holy Grail of the legal system. Watch out for these clients, as there are reasons why they move from lawyer to lawyer in search of "the one lawyer who will understand." The lawyer who "gets it" often is the lawyer who "validates" the client by real or perceived agreement with the client, criticism of a previous lawyer, judge or litigant, and so on. These clients pose risks for many reasons, such as having impossible legal objectives and expectations that cannot be met.
  5. The Expert/NBA Specialist: This client knows everything there is to know about the legal matter, and all you have to do is try to catch up. Don't bother; in this client's eyes you'll never properly handle "the easiest," "best," most "clear-cut case" the law has ever seen. To this client, the case is a "Slam-dunk" that you cannot miss. It will be the easiest money you'll ever make. Represent this client, though, and you'll be on a last place team and longing for free agency.

When you reject clients such as these, confirm in writing that you are not representing them. Be careful about the information you give. Be clear, use straightforward language and don't give too much information. You do not have to advise of specific statutes of limitation, etc. (e.g. "You have two years from the date of your accident to file the lawsuit."). In fact, you should not do so beyond informing that there are deadlines for filing and that the client should not delay in getting to another attorney to find out the deadline for his or her specific matter. Inform them that they should not construe your decision to decline the matter as a judgment on the merits of the matter. You do not want to discourage the client from seeing another lawyer.

When you give information regarding specific deadlines, you can be right only by accident (or by virtue of a really good crystal ball). Therefore, make it a practice not to give information about deadlines and the like. The information you provide might be wrong, but you may induce the prospective client to rely on the incorrect information to his or her detriment.

Example: Ms. Woodbe has an accident on January 1, 2005 and sees Lawyer for representation in connection with a personal injury claim. Lawyer declines the case but informs Woodbe that the statute of limitations sets the deadline for filing the lawsuit and that in this instance, personal injury, the deadline is two years from the date of the accident.

January 1, 2007 passes and Woodbe does not file suit. Is her claim barred? Did the statute actually expire on January 1, 2007? Answer: No and no.

Without doubt, the two-year anniversary of Woodbe's accident occurs on January 1, 2007. Being a court holiday, however, the two-year anniversary is not the true deadline. Instead, the "deadline" runs the next court day.

Another wrinkle arises, however, to make the determination of the statute of limitation more prediction than statement of fact. In Woodbe's example, soon after the accident the person who caused the accident, Nojuras-Dicshun, started to work for a company employing the teachings of The World is Flat. Her new employment takes her to India, where she continues to live and work. As a precursor to moving, she gives up her Illinois Driver's License.

January 1, 2007 comes and goes, and Woodbe never files a lawsuit against Nojuras-Dicshun because Woodbe believed that the deadline for filing passed. In reality, the deadline for filing did not come and go. The lawyer accurately stated the rule but failed to consider any exceptions to the rule. It is dangerous to assume that no exceptions to the statute of limitation apply, and doing so can cost a client a valid claim.

Since you cannot predict the exceptions that might apply, do not give hard-fast statements about deadlines.

  • See Lopez v. Clifford Law Offices, 362 Ill.App.3d 969, 841 N.E.2d 465 (1st Dist. 2005)

What can happen when you do not make it clear that you are not representing the client? The client may believe that you are, and important deadlines could pass, to the detriment of the client. The existence of an attorney-client relationship may be established by the client's reasonable perception. "Even a brief meeting, resulting in no formal retainer or payment of fees, is sufficient to create the relationship."

  • Morris v. Margulis, 307 Ill.App.3d 1024, 718 N.E.2d 709 (5th Dist. 1999), rev'd on other grounds, 197 Ill.2d 28, 754 N.E.2d 314 (Ill. 2001)

An attorney-client relationship exists when a person gives confidential information to a lawyer with a reasonable belief that the lawyer is acting as the person's attorney.

  • International Paper Co. v. Lloyd Mfg. Co., Inc., 555 F.Supp. 125 (N.D. Ill. 1982)

Withdrawing from representation has its own foibles. First, you must comply with Supreme Court Rule 13. Second, you must comply with the RPC. Do not wait until it is too late to attempt to withdraw, for if withdrawal would prejudice the client, the court can disallow the request to withdraw.

For non-litigated matters, withdraw by sending the client a letter advising that you are quitting. Don't use fancy legalese language of the lawyerly type, kind and nature ("I am on the date of this letter from the undersigned terminating my representation of you and yours in regard to the above-captioned legal matters and enclose for you herewith a duplicate of the canceled retainer agreement."). Instead, be direct, be polite, be professional, think very hard before stating reasons (the letter could become an exhibit in a lawsuit some day), and be straightforward. Leave no doubt, for if the client believes there is still an attorney-client relationship, you may still have duties to the client.


Common Malpractice Claim Category Two: Making Assumptions

Malpractice Prevention Tip: Assume that you know nothing to force yourself to verify everything

Lesson 9: When You Assume, You AS(k) your clients to SU(e)ME

An inordinate number of legal malpractice lawsuits are borne out of assumptions, a lawyer's guess at what the law is, a guess that the law has not changed, or a guess that the law is the same elsewhere. These assumptions, these guesses, are virtual invitations to legal malpractice claims. The examples below are taken from real cases — some resulted in legal malpractice lawsuits while others did not (but could). The mistakes made in these cases are instructive and can teach us ways to avoid making them and thus avoid legal malpractice liability.


Assuming there are no special prerequisites to filing a lawsuit:

Failing to determine whether there are special prerequisites to filing lawsuits is a common area of legal malpractice claims, particularly in cases involving the Chicago Transit Authority where there is a strict notice requirement. In situations where notice is required, the failure to provide proper notice is usually fatal to the claim. This situation will most likely lead to a claim for legal malpractice.

Case: Curtis v. Chicago Transit Authority
Situation: Plaintiff identified the wrong date for the accident that injured him. The accident happened just after midnight on February 13, 2000. Plaintiff's notice to the CTA listed the accident date as February 12, 2000, which happened to be the date the CTA's bus driver reported to the CTA.
Decision: The error in plaintiff's notice was fatal, and the appellate court affirmed dismissal of the complaint.

Some cases require "extra steps" to get to the courthouse. Lawyers must ascertain the existence of special notice provisions, statutes of limitation and other potential variables that complicate an otherwise ordinary personal injury matter. Assuming that no notice is required or that the requirements for notice have not changed, will eventually lead to a mistake and a claim for legal malpractice.

In addition to ascertaining whether any special statutes, regulations, ordinances, codes, or rules apply to a give case or filing, lawyers must emphasize the importance of receiving correct information from the client.


Assuming that the place you chose to file is a correct place to file:

Another dangerous assumption relates to the location of a filing, any filing 5 . Lawyers who do not confirm that they are filing a lawsuit in a legally correct location run the risk of malpractice claims against them. Similarly, sending notice of intent to perform pursuant to a contract must typically be done in strict conformity with the contract or risk being deemed deficient with the corresponding loss of the rights under the contract.

Simply confirming whether there are limited locations that are appropriate for the actions you take on behalf of a client can overcome the malpractice risks associated with this assumption. Check statutes, regulations, codes, local rules, and case law to determine if there is a problem with suing a particular defendant in a particular place. Similarly, re-reading the contract to confirm the proper place for sending notice of intent to perform will serve your client's interests and minimize or eliminate the malpractice risk.

Case: King v. Northern Indiana Commuter Transportation District
Situation: Plaintiff sued the Northern Indiana Transportation District and others in Cook County to recover for injuries he suffered after he was removed from a train bound for Indians and fell off the platform.
Decision: By Indiana statute, any action against an Indiana state agency or its employees must be brought in an Indiana court. Illinois honors the Indiana statute, so Illinois lacked jurisdiction over the Transportation District. Case dismissed.

Question your traditional, reflexive, notions of where lawsuits should be filed and confirm with research that where you want to file won't cause prejudice to your client's case.


Assuming that you know the contents of every package delivered to your office

It's an old trick and to most lawyers, it's a dirty one. Nevertheless, it persists to this day: hiding requests to admit behind other discovery requests, in a box with other documents, and so on. Whether the intent is to take advantage of an expected assumption about the contents of the package or whether no devious intentions exist, this practice sends lawyers to court asking for mercy and complaining about being tricked far too often. How does it happen? In several ways, the most common being the requests to admit sent in an envelope with other materials, usually discovery requests. The requests to admit are placed at the bottom of the stack, the idea being that the recipient will assume package contains nothing more than "routine" discovery requests and either put them away for later attention, send them to the client for responses, or give them to an assistant for recording in a diary or tickler system. Meanwhile, the 28-day clock ticks.

Another common ploy involves using a box that has previously been used, such as for sending documents between the lawyers. The lawyer issuing the requests to admit places them in the box the other lawyer used to send documents. To the recipient, it looks like the box holds nothing more than the documents that have been returned. Unopened, the box holds more than just returned documents. It holds a malpractice liability time bomb.

How to avoid this dastardly trick? Open your packages the day they are received. Act as though every package contains time-sensitive materials until you can confirm that requests to admit or something of the sort is not lurking.


Assuming you know the rules

Perhaps the most dangerous assumption is assuming full knowledge of all rules. This is simply not a possibility given the light-speed of rules changes and the increasing number of rules that apply, particularly in litigation. In any circumstance there are "laws" imposed by any number of authorities, and these "laws" can have a significant effect on any given circumstance. Whether there is an ordinance, code, regulation, statute, rule, or constitution that pertains to a client's matter should be a determination made after research, not assumption. You could leave important tools for recovery on the table if you ignore these sources of "law" or you can expose your client to civil or criminal liability if you fail to learn of them or advise your client on compliance.

Legislatures, courts and regulatory agencies change deadlines, create new deadlines, and alter the "rules of the game" all the time. The Illinois Supreme Court recently changed rules relating to page limitations for appeals and relating to the timing of filing a petition for leave to appeal, to name only a couple of recent changes. Jury instructions also are changed periodically, and the changes can be subtle but significant. If you don't keep up with the changes such as by email updates, serving on a committee or otherwise, you must check to see if any changes have been made. Do not assume that the rules that apply to your client's matter have not changed since you last dealt with them. Trusting your memory is not always a mistake, but it is less likely to be a mistake if you verify that your memory is accurate by double-checking the rule, statute, regulation, etc.


Common Malpractice Claim Category Three: Allowing Evidence to be Lost or Destroyed

Malpractice Prevention Tip: Instruct your clients to preserve records and other items that could be evidence, and take steps to preserve evidence in the control of others.

Spoliation of evidence has garnered a lot attention in legal publications in recent years. The duty to preserve evidence belongs not only to parties to litigation, but also to lawyers. It is the lawyer's job to inform the client of the obligation to preserve evidence. In Kambylis v. Ford Motor Company crucial evidence in a product liability case, a Ford Escort with an allegedly defective airbag system, was lost. The plaintiff, who did not own the car, received notice that the car would be disposed of unless retrieved in short order. The plaintiff's lawyer wrote Ford informing it of the accident and the car's location at a pound on the south side of Chicago. Plaintiff's attorney also claimed to have notified Ford of the contention that the airbags did not properly function.

Plaintiff did not retrieve the car, nor did its owner, the plaintiff's father, and the car was destroyed. Ford moved for summary judgment, arguing that plaintiff failed to preserve the evidence and prevented Ford from inspecting the vehicle and airbag system. The appellate court affirmed the dismissal of plaintiff's product liability case against Ford, rejecting plaintiff's arguments that photographs were adequate to enable Ford to determine whether the airbag system was defective. The fact that plaintiff took no action to destroy the car also was not persuasive. Instead, the plaintiff's failure to preserve the car proved fatal to the case.

The court observed that the plaintiff is required to make a diligent attempt to preserve evidence and, if the plaintiff does not control the evidence, he has an obligation to give the opposing party notice of access to the evidence, or notice of the possible destruction of the evidence, if the party anticipates litigation involving the evidence. The plaintiff made no apparent effort to preserve the car, and the attorney's letter, which Ford claimed it did not receive, incorrectly stated the car's location. The lack of effort and insufficient notice warranted summary judgment.

Whether the plaintiff was informed of the duty to take all reasonable steps to preserve the evidence is unknown. However, to protect your client (and in the process protect yourself from a claim of legal malpractice), you should preserve evidence by any means possible, including:

  • Obtaining a court order preventing destruction of the evidence;
  • Warning, in writing, that the item(s) could become evidence and that all who contact it risk liability if they damage or destroy it;
  • Agreement
  • Inspections and evidence/data collection early, particularly when the evidence is owned or controlled by a third party (such as a car, motorcycle, or other item)
  • Acquiring ownership or control over the evidence, including purchasing it (as a case expense)

A case can be lost if evidence is destroyed or altered. Lawyers have an obligation to inform clients of the duty to preserve evidence and the consequences of failing to preserve evidence. Give this information in writing. The lawyer's own failure to preserve evidence and failure to instruct a client to preserve evidence can expose the lawyer to a claim of malpractice when a case is lost because evidence was not preserved.


Common Malpractice Claim Category Four: Failing to Properly Answer Discovery

Malpractice Prevention Tip: Diary all deadlines for filing responses, ensure that the correct person verifies responses, and ensure that response are in the correct form.

Lawyers have developed a cavalier attitude toward deadlines for answering interrogatories and requests for documents. Timely responses are the exception rather than the rule largely because the consequences of answering beyond twenty-eight days are almost non-existent, at least until the delays become extreme and court orders are violated. However, with a request to admit, the consequences of missing deadlines are harsh. They can even be fatal to a claim.

Under the Illinois Supreme Court Rules, an attorney's signature on an answer to a request to admit, without a signature of the party, is insufficient. The failure to timely serve answers to requests to admit facts signed by the party to whom the request is addressed results in the facts being admitted. Without a showing of good cause, it is improper for the grant leave to file answers signed by the party after the deadline.

Filing answers to requests to admit with the court but failing to serve the answers on attorneys of record can result in the facts being admitted. Therefore, be certain that all attorneys and unrepresented parties receive copies of the answers and verification signed by the client.

Strict compliance with Rule 216 is essential. The failure to strictly conform responses to requests to admit can result in the requests being deemed admitted. This in turn can lead to an adverse ruling on a summary judgment, a limitation on damages, and untold other unwanted outcomes. Be certain to have clients sign answers to requests to admit and then timely file and serve the signed responses. This, as with all other discussions of rules, comes with the same caveat: check local rules and do not assume that the rules for requests to admit are the same in all jurisdictions. Compare: FRCP 36, which allows an attorney for a party to sign an answer to a request to admit facts and contains a different time frame for answering (30 days versus 28 days under the Illinois rules).


Common Malpractice Claim Category Five: Underinsured and Uninsured Motorist Claims

Malpractice Prevention Tip: Obtain and read the insurance contract as soon as possible.

Although automobile insurance is required under the "Financial Responsibility" law, uninsured and underinsured motorist claims are contractual. The policy of insurance, i.e. the contract, contains deadlines, requirements for demands for arbitration, demands for settlement, notice and authority to accept settlement, and other important terms that must be complied with to avoid a claim for malpractice. Among the most common provisions is a shortened period for providing notice of a claim and a demand for arbitration. The short time periods have been held up time and again by Illinois courts.

Among the first steps of handling any personal injury case involving a motor vehicle (in any way, not just a stereotypical "car accident") is to determine whether there is uninsured or underinsured motorist coverage that might apply. This requires the lawyer to ask the client for a copy of the client's automobile liability policy. The lawyer must review the policy in detail to make determinations about potential coverage and ascertain deadlines and prerequisites for demands.

By reviewing the policy and determining the critical requirements for pursuing the claim, the lawyer protects the client's right to obtain the benefits of early bargaining with the insurance company — that is, to get what they paid for.

Thomas W. Dillon
Konicek & Dillon, P.C.
21 W. State Street
Geneva, IL 60134
630-313-2071
www.KonicekDillonlaw.com
[email protected]

© 2006 Thomas W. Dillon

1 And other applicable codes of conduct, such as those adopted by specific courts that require compliance with the rules as a condition of admission to practice before the court, and those of other states in the circumstance of pro hac vice admission.
2 Mark Twain
3Mike Tatum
4John Travolta
5The case examples relate to litigated matters, but the principles apply to every area of legal practice. For example, any type of filing with a governmental entity can be filed improperly, late, in the wrong location, on the wrong person, with an incorrect description, date, and so on. Options to purchase that must be sent to specific recipients in a specific manner, such as by FedEx, can be jeopardized if the notice or service are deemed insufficient or noncompliant.

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