Posts tagged ‘malpractice’

Ethics Complaint – The End

By htsyl, 18 September, 2010, No Comment

Well, I am not at all surprised that despite the allegations set forth in the ethics complaint I filed against an attorney who let a client he snared from a women’s shelter work for him for four years without pay has been DISMISSED by the powers that be. This is the body of the letter:

The Office of Bar Counsel has considered your grievance regarding Attorney X. After reviewing the information received and communicating with Jane, Attorney X’s former client, it has been determined that any professional misconduct in this matter could not be proved by “clear and convincing evidence,” which is the standard of proof required in disciplinary cases…Accordingly, the grievance has been dismissed and, as such, this matter is closed. The decision by our office, however, does not affect any private remedies that might be available to you…Thank you for bringing this matter to the attention of this office.

And that, my friends, is that. I have encouraged my friend to continue following up with the Labor Board regarding her back wages as this is a “private remedy” that is available to her and which could put some money in her pocket (unless Attorney X declares bankruptcy). Even if she wanted to retain an attorney to sue Attorney X for malpractice, Attorney X does not carry malpractice insurance! It is highly unlikely that she could even find a lawyer willing to take on Attorney X in a lawsuit, but even if there was a lawyer who practiced in this area, taking a case where there is no insurance policy to go after is a loser.

So, unless the Labor Board catches up with him, and he has to pay Jane some back wages (at the rate of minimum wage because there was no agreement as to what her hourly rate of pay should have been), Attorney X has got a pretty good setup. He gets clients referred to him by the women’s shelter. If they can’t pay for his services and they have any skills at all, he has slave labor at his disposal. He can’t get sued for malpractice because he doesn’t carry insurance and he can’t get disbarred because it’s “too hard to prove.”

Frankly, my impression of the position taken by the disciplinary board is this — if they think they can get away with not pursuing the matter, and if the victim is low profile enough, and the attorney hasn’t done something “outrageous” like stealing client monies from the trust fund, they just put it in the “lack of clear and convincing evidence” shoebox, knowing that the person will have nowhere to turn for a “private” or “civil” remedy, and it’s just over.

It’s just wrong.

Representing Yourself – Flash of Genius or Shower of Stupidity?

By htsyl, 13 June, 2010, 10 Comments

I was watching the movie Flash of Genius the other day – Greg Kinnear plays college professor and part-time inventor, Robert Kearns, who invents the intermittent windshield wiper for cars. Long story short, Ford steals his invention, he sues but his lawyers quit because he won’t accept a settlement offer, and he decides to go ahead and represent himself against Ford Motor Company. I am not sure exactly how he gets it accomplished, and he ends up losing his sanity, then his wife and family, and ends up with a garage full of paperwork. But, in the end, he WINS! The jury finds against Ford Motor Company and awards him more than $10 million. And after that, Chrysler settles with him for more than $18 million. True story. Greg Kinnear talks about Flash of Genius

This was a remarkable outcome. The reason that he continued to pursue this complex patent case on his own was because of the principle. For him, it was not about the money. The reason he did not accept fairly large settlement offers was because they did not come with an admission of “guilt” or “responsibility” from Ford (one of the biggest reasons for settlement offers is the confidentiality and no admission of guilt).

Representing yourself in court is not a wise course of action. The system is simply not designed for the non-lawyer. You have every right to do it, even in criminal court, but it’s never pretty. We have all seen video of criminals acting as their own lawyer (remember the Long Island train shooter, Colin Ferguson?). Judges don’t like it, the lawyers on the other side will try every nasty trick in the book to trip you up, and in front of a jury it can get pretty dicy when you have to put yourself up on the stand and question yourself, and register objections against the other side while they are questioning you.

In a serious criminal case, if you are given permission to be your own attorney, you are usually appointed “stand-by counsel.” This is a lawyer that is prepared to step in and take over if you are really in a jam, but they are usually not that happy about the job they have been given…they most certainly spend a lot of time sitting on their hands so they don’t jump up in court while the self-represented bumbles along.

If you represent yourself in a civil case, as did Robert Kearns against Ford, it will cost you a fortune and it could be next to impossible to keep up with the avalanche of paper that the other side is going to send your way. It turns out that lawyers are a necessary evil when there is a disagreement that can only be resolved in a courtroom. They know the secret handshake and they are not sharing.

As always, I urge you to be an active participant in your litigation. Don’t be a passive bystander. It is nice to hand over some of the stress of litigation to an attorney, but keep your eye on what is going on. Stay informed. Don’t let the fees get out of hand. Insist on status reports and monthly billing statements. Set limits on expenses and require pre-approval on large amounts.

Don’t drown in a shower of stupidity – show your flash of genius – you can’t sue yourself for malpractice!

Child Custody – Malpractice or Expensive Appeal?

By htsyl, 25 May, 2010, No Comment

The most stressful legal dispute you can find yourself in is a divorce or family law matter involving custody of and/or visitation with your children. If you should find yourself in the unfortunate situation of having an attorney who is unprepared or inattentive to your case, or a judge who just cannot seem to comprehend the concept of “best interest of the child,” the outcome can be unthinkable. Losing custody or visitation with your kids because your lawyer “screwed up” seems unimaginable, but it happens.

What do you do? What can you do? If you remember back to previous discussions here, you know that claims of legal malpractice are based on two important things…that the outcome would have been different if your attorney had not made the “mistake” AND that you have measurable monetary damages. Therein lies the problem in suing an attorney for legal malpractice in a custody matter. What are the financial damages? Now I understand that you cannot put a “price” on your children’s custody, and that’s the problem. The only legal recourse in these situations may be an appeal, and then, if the appellate court sees that there were serious legal mistakes or oversights in your case, you may get a new hearing back in family court. And then, you might be able to sue your original attorney for all the attorney fees and costs that you incurred because of their incompetence, but that is a long, expensive and extremely stressful road to take.

The best protection against a bad outcome in a child custody matter is the same as with your medical care. If you feel like something is “not right,” get a second opinion. You do need to be careful when doing this, however. Don’t go to another attorney asking them to criticize one of their colleagues. Don’t try to get a “free consultation” for your second opinion. Be up front about your concerns, pay for their opinion, and be completely honest with the attorney about the circumstances. In other words, don’t “forget” to tell the attorney that you actually bring to the table a “little problem” with drugs or alcohol. If things are not “going your way” as a consequence of your own problem, and not because of your attorney or the judge, don’t shop for a second opinion in an attempt to get yourself out of hot water.

Seeking this opinion may cost a bit of money, and based on the outcome of the consultation, you may decide to change your legal representation. This decision, too, can be expensive, depending on how far into the case you are with the first attorney, in fees and time. But, it is about your kids, and once again, don’t check your common sense at the door…trust your instincts about what is best for you and your children.

And one more thing to remember — your children have two parents and the fight is not about you — it’s about what is best for your kids.