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Legal Malpractice 2019 Professional Liability Claims, Litigation Strategies, and Attorney Disciplinary Procedures

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Legal Malpractice 2019 Professional Liability Claims, Litigation Strategies, and Attorney Disciplinary Procedures Legal Malpractice 2019 Professional Liability Claims, Litigation Strategies, and Attorney Disciplinary Procedures TUESDAY, MARCH 19 WEDNESDAY, MARCH 20 Albany Long Island MONDAY, MARCH 25 THURSDAY, MARCH 28 New York City Rochester TUESDAY, APRIL 16 Westchester Program time is from 9:00 a.m. – 1:00 p.m. at all participating locations. 4.0 MCLE Credits: 3.0 in Ethics, 1.0 Law Practice Management Sponsored by the Committee on Continuing Legal Education and the Law Practice Management Committee of the New York State Bar Association This program is offered for educational purposes. The views and opinions of the faculty expressed during this program are those of the presenters and authors of the materials. Further, the statements made by the faculty during this program do not constitute legal advice. Copyright © 2019 All Rights Reserved New York State Bar Association Program Description Lawsuits against lawyers arising from errors and/or omissions in the performance of legal services continue to rise. It is an essential part of a law firm’s business practice to evaluate its legal risk and malpractice insurance needs. This program is designed to educate attorneys on how to prosecute and/or defend a legal malpractice action. In addition, this program will educate attorneys about their legal malpractice exposures, what they should do in the event that a lawsuit or a grievance complaint is filed against them, and what they should do when situations arise that indicate that a legal malpractice claim is likely. Both solo practitioners and members of larger firms would benefit from knowing how to assess professional liability risk and manage legal malpractice litigation. Program Agenda 8:30 a.m. - 9:00 a.m. Registration 9:00 a.m. - 9:10 a.m. Welcome and Introduction 9:10 a.m. – 10:00 a.m. Legal Malpractice Causes of Action, Litigation Strategy and Ethics > Theories of Liability * Negligence * Breach of Fiduciary Duty * Statutory Liability * Violations of Disciplinary Rules and Ethical Considerations *Conflicts of Interest > Statute of Limitations * Claim Accrual *Continuous Representation Doctrine *Concealment and Discovery > Capacity to Sue and Standing * Privity *Ripeness and Mootness * Collateral Estoppel and Res Judicata * Release and Waiver > The Standard of Care * Negligence, Breach of Fiduciary Duty * Statutory Liability/Violations of Disciplinary Rules *Conflicts of Interest > The Burden of Proof * Causation *Expert Opinions *Damages > Trial Tactics and Motion Practice *Jury Selection * Evidentiary Issues *Expert Testimony *Jury Instructions (1.0 MCLE Credit in Ethics) 10:00 a.m. - 10:50 a.m. Sources of Legal Malpractice Claims & Ethical Considerations Panel Discussion with Professional Liability Industry Leaders >Typical Claim Scenarios *Conflicts of Interest * Failure to Investigate/Evaluate Claims or Defenses *Failure to Comply with Statute of Limitations * Neglect of Prosecution/Trial Errors * Failure to Protect Secured Interests/Assets/Property > Claimants and Vicarious Liability– Who Can Sue and Be Sued * Liability to Clients/Third-Parties * Liability of Law Firm/Partners for Acts of Another > Legal Malpractice Claim Defense Strategy *Pre-Suit Discussions/Settlement * Discovery/Legal Malpractice Litigation Management *Use of Experts * Motion Practice * Trial Strategies/Tactics (1.0 MCLE Credit in Ethics) 10:50 a.m. - 11:00 a.m. Break 11:00 a.m. – 11:50 a.m. Identifying and Responding to Professional Liability Claims > Claim Notification and Reporting Issues * What Constitutes a “Claim” *Responding to and Reporting of Potential Claims * Representations in the LPL Application * Notification of Claims > What is Covered Under the Typical LPL Policy * The Scope of Professional Services * Non-Covered Acts, Errors or Omissions * Damages Excluded from Coverage * Intentional Acts/Fraud Exclusions * Typical Exclusions (1.0 MCLE Credit in Law Practice Management) 11:50 a.m. - 12:45 p.m. Attorney Discipline and Risk Management for Lawyers Discussion of the NYS Attorney Disciplinary Process and Law Firm Risk Management * Overview of the NYS Disciplinary Process * New Client/Matter Intake *Conflict Management and Avoidance *Engagement Letters/Part 1215 Requirements *Docket and Calendar Management * Billing Systems and Controls * File Closing and Disengagement Letters * Training and Associate Supervision * Fee Actions * Client Management (1.0 MCLE Credit in Ethics) 12:45 p.m. – 1:00 p.m. Questions and Answers 1:00 p.m. Adjournment Accessing the Online Course Materials Below is the link to the online course materials. These program materials are up-to-date and include supplemental materials that were not included in your course book. www.nysba.org/LegalMalpractice2019Materials All program materials are being distributed online, allowing you more flexibility in storing this information and allowing you to copy and paste relevant portions of the materials for specific use in your practice. WiFi access is available at this location however, we cannot guarantee connection speeds. This CLE Coursebook contains materials submitted prior to the program. Supplemental materials will be added to the online course materials link. New York Rules of Professional Conduct These Rules of Professional Conduct were promulgated as Joint Rules of the Appellate Divisions of the Supreme Court, effective April 1, 2009, and amended on several occasions thereafter. They supersede the former part 1200 (Disciplinary Rules of the Code of Professional Responsibility). The New York State Bar Association has issued a Preamble, Scope and Comments to accompany these Rules. They are not enacted with this Part, and where a conflict exists between a Rule and the Preamble, Scope or a Comment, the Rule controls. This unofficial compilation of the Rules provided for informational purposes only. The official version of Part 1200 is published by the New York State Department of State. An unofficial on-line version is available at www.dos.ny.gov/info/nycrr.html (Title 22 [Judiciary]; Subtitle B Courts; Chapter IV Supreme Court; Subchapter E All Departments; Part 1200 Rules of Professional Conduct; § 1200.0 Rules of Professional Conduct). http://nycourts.gov/rules/jointappellate/ NY-Rules-Prof-Conduct-1200.pdf Free, Confidential Help for the Problems Lawyers Face NYSBA Lawyer Assistance Program 1.800.255.0569 | nysba.org/LAP All LAP services are confidential and protected under Section 499 of the Judiciary Law as amended by Chapter 327 of the Laws of 1993. Bringing you the best and most relevant continuing education to help you be a better lawyer. Last year over 2,000 lawyers and judges volunteered for a NYSBA CLE. For decades, CLE volunteers have been developing and presenting seminars, preparing rich collections of written materials and raising the bar for legal practice in New York. View a Complete Listing of Upcoming CLE Programs at www.nysba.org/CLE Law Practice Management Programs Available Online Law Practice Management Continuing Legal Education programs are open to all members and non-members. Topics include finance, technology, human resources, marketing, client development and day-to-day operations of your law firm. All LPM live programs and events are recorded and available online, on demand. Special member pricing options are available. Recent programs include Leveraging Technology in Your Practice, Technology, Tools and Ethics Rules, Powerpoint 101 for Lawyers, Maximizing the Use of Your iPad in Your Law Practice and many more. Learn more about Law Practice Management Resources www.nysba.org/LPM Table of Contents Legal Malpractice 2019 Professional Liability Claims, Litigation Strategies, and Attorney Disciplinary Procedures Legal Malpractice Causes of Action, Litigation Strategy and Ethics White Paper – NYSBA 2019 ...................................................................... 3 A. Michael Furman, Esq., Andrew R. Jones, Esq., Andrew S. Kowlowitz, Esq., and Rachel Aghassi, Esq. Outline – Legal Malpractice Causes of Action ......................................... 31 Lisa L. Shrewsberry, Esq. Sources of Legal Malpractice Claims & Ethical Considerations PowerPoint – 2019 NYSBA Risk Management Seminars – Insurance Considerations ......................................................................................... 53 Greg Cooke Identifying and Responding to Professional Liability Claims Materials – Identifying and Responding to Professional Liability Claims . 65 Andrew R. Jones, Esq. PowerPoint – Identify and Responding to Professional Liability Claims .. 75 Andrew R. Jones, Esq. Attorney Discipline and Risk Management for Lawyers Outline – Risk Management .................................................................... 83 Jonathan B. Bruno, Esq. Faculty Biographies ................................................................................ 107 Legal Malpractice Causes of Action, Litigation Strategy and Ethics 1 2 FURMAN KORNFELD & BRENNAN LLP NYSBA WHITE PAPER 2019 Spring 2019 Authors: A. Michael Furman, Esq. Andrew R. Jones, Esq. Andrew S. Kowlowitz, Esq. Rachel Aghassi, Esq. 3 NYSBA WHITE PAPER 2019 I. BASIC THEORIES OF ATTORNEY LIABILITY A. Legal Malpractice/Negligence-Based Claim Professional negligence is the most commonly pleaded cause of action against an attorney in a legal malpractice lawsuit. The elements of a legal malpractice claim are: (1) an attorney-client relationship between the parties, (2) negligence by the attorney-defendant in its legal representation, (3) proximate cause between the attorney-defendant’s negligence and plaintiff's
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