What You Can Do as a Paralegal to Help Your Firm Avoid Malpractice Suits

Since this is hardly the first recession many of us have weathered, some of the articles we're reading could have been written in 2001 or in any of the other more infamous economically turmoiled times. However, the concerns may be the same but with regulation, more client awareness of what paralegals can do and increased utilization of paralegals, the stakes get higher each time.Woman crying black & white

A recent article in The New York Lawyer states that hard economic times causes the number of malpractice suits against law firms to skyrocket.  Not a pretty picture for anyone.  Particularly vulnerable, the article notes, are real estate attorneys.  When I read an article like this I sure wish they would say "real estate attorneys and paralegals" because many of the assignment areas listed are covered by paralegals.  Just a few of those targeted areas include:  closing documents, title reports, poorly drafted contracts, zoning and escrow issues. Many claims against lawyers include allegations of errors in transactions ranging from conflicts of interest and closing mistakes to poorly drafted contracts and zoning and escrow issues. Other areas attracting malpractice law suits include conflict of interest, trust & estates, family law and more.

Paralegals: Play It Smart. Get out your checklists, take a webinar, seminar, refresh your ethics classes, ask more questions than you need to, get a buddy system going and above all, work as closely as you can with your supervising attorney.  In this era of "more sophisticated assignments" for paralegals, it is not unheard of for paralegals to make mistakes that could have otherwise been avoided, if only they had known.  And while in most cases, it is the attorney in charge of the assignment that will be held responsible, why, oh why, would you want to put your job, your attorney, your firm and your client at risk?  Do the right thing responsibly.  Don't write and wish. Safeguard yourself and your work through some simple holiday advice:  making that list and checking it twice!

To all my readers:  Thank you for your continued support of all we do - from our conferences to our publications of KNOW, The Magazine for Paralegals and SUE, For Women in Litigation - Have a Happy and Peaceful Holiday.  Here's to an outrageously successful 2009.  Lord knows, we need it!


"Critical Care Without Consent"

This article in today's Washington Post (5-27-2007), both surprised & shocked me. I'd dearly love to hear what med-mal paralegals think about these research studies:

"The federal government is undertaking the most ambitious set of studies ever mounted under a controversial arrangement that allows researchers to conduct some kinds of medical experiments without first getting patients' permission.

"The $50 million, five-year project, which will involve more than 20,000 patients in 11 sites in the United States and Canada, is designed to improve treatment after car accidents, shootings, cardiac arrest and other emergencies.

"The three studies, organizers say, offer an unprecedented opportunity to find better ways to resuscitate people whose hearts suddenly stop, to stabilize patients who go into shock and to minimize damage from head injuries. Because such patients are usually unconscious at a time when every minute counts, it is often impossible to get consent from them or their families, the organizers say.

"The project has been endorsed by many trauma experts and some bioethicists. Others question it. The harshest critics say the research violates fundamental ethical principles.

[snip]

"'We will never know the best way to treat people unless we do this research. And the only way we can do this research, since the person is unconscious, is without consent,' said Myron L. Weisfeldt of the Johns Hopkins University School of Medicine, who is overseeing the project. 'Even if there are family members present, they know their loved one is dying. The ambulance is there. The sirens are going off. You can't possibly imagine gaining a meaningful informed consent from someone under those circumstances.'

"Before starting the research at each site, researchers complete a 'community consultation' process. Local organizers try to notify the public about the study and gauge the reaction through public meetings, telephone surveys, Internet postings and advertisements, and through reports in local news media. Anyone who objects can get a special bracelet to alert medical workers that they refuse to participate."

The reader comments about this news are worth a look. Personally I'm in favor of getting one of those "refuse to participate" bracelets!


"New York's Most Obnoxious Lawyer"

Hmmm, I'm sure someone could nominate lawyers "worthy" of this "honor" in other states. But check out the "competition" in this Village Voice article:

"'With so many jerks working as attorneys in New York City, you'd think there would be no way to determine who's the single biggest pain in the ass. You could be wrong. The winner (or loser) is arguably Kenneth Heller.

"You can't count the number of crooks, shysters, or idiots among the city's 74,000 lawyers. But Kenny Heller was disbarred for simply being obnoxious. After 50 years of heaping abuse on everyone within earshot and hurling accusations of conspiracies, 'favoritism,'and 'cronyism' at countless judges and lawyers, the 77-year-old Heller has earned this distinction: No other lawyer in the city but Heller, according to records of his disciplinary hearing, has been ousted for "obstructive and offensive behavior which did not involve fraud or deception.'"


"Paralegal licensing is good news"

After a hard-fought legislative battle, independent paralegals in in Ontario will become a regulated profession on May 1. This Toronto Star article outlines why licensing is needed:

"In recent years, the need for regulating paralegals has been the subject of considerable comment by Ontario judges and in two Ontario government reports. The most recent comment occurred in a Superior Court decision of Justice Deena Baltman last October. It was published last month in the Ontario Reports.

"In December 2002, Pamela Elliot received an eviction notice from her landlord claiming rent arrears of $2,700. Shortly afterward, the Ontario Rental Housing Tribunal issued an eviction order against her.

"Elliot contacted Vince Chiarelli, a paralegal, to stop the landlord's eviction. He promised her in writing that for a fee of $1,200 plus expenses he could file an appeal to Divisional Court and obtain a stay which would 'prevent or significantly delay the eviction proceedings.'

[snip]

"Eventually, Elliot sued Chiarelli in Small Claims Court to recover the money she paid him, based on professional negligence, breach of contract and alleged violations of the Business Practices Act.

[snip]

"'As a legal service provider,' Justice Baltman wrote in her decision, 'Mr. Chiarelli had a duty to provide good advice. Instead, Mr. Chiarelli advised Ms. Elliot to pay him nearly $1,800 so that he could postpone her eviction by what he knew could only be a matter of weeks. That was bad advice.'"


"Trials & Tribulations of New Rules on EDD"

Could not understanding EDD issues -- both evidence rules & technology -- amount to malpractice? Oh, yeah, I think so, especially if the client didn't 'know' not to monkey with hard drives:

"During discovery in a securities case in the Northern District of Florida, Miami attorney Michael Kreitzer's client wanted to see e-mails between two of the defendants. The defendants claimed that the hard drives on which the e-mails were stored had failed, and that all the data were lost.

"Kreitzer, the chair of the litigation group at Bilzin Sumberg Baena Price & Axelrod in Miami, persuaded the judge to order the defendants to produce the hard drives, and had them forensically examined.

"That examination found that the defendants had attempted to overwrite the hard drive five times to wipe out the data. Kreitzer asked the judge to instruct the jurors that they could presume that the information formerly stored on the hard drive was adverse to the defendants. The judge granted his request. The case ended in a confidential settlement."

BTW, this article describes how to destroy data on your own hard disk by overwriting it.


"Associate Suspended for Offering Information to Opposing Party for Fee"

Simply amazing! Was potentially losing a legal career worth $2,000? Or even $20,000?

"A former law firm associate who offered to provide information to an opposing party for a $2,000 fee has been suspended from the practice of law for five years.

"Glenn A. Kiczales, a former associate at landlord-tenant firm Ingram Yuzek Gainen Carroll & Bertolotti, began representing real estate firm Stahl Associates in 2002 in an action to recover an apartment from a tenant and a sublessee named Rajiv Gosain.

'Gosain offered at various points in the action to pay Kiczales, 36, for help in the case, including $20,000 in the event of a favorable settlement.

"Though Kiczales was unable to accept that fee because he was too junior a lawyer to influence his client on a settlement, he offered for a $2,000 fee to provide Gosain information about how certain audiotape evidence would be used."


"Who's to Blame When EDD Vendors Go Boom?"

I hate it when companies "go boom," but this article really discusses what happens "when vendors let you down":

"If you engage in e-discovery, chances are you depend on vendors to help you harvest, process, search and filter digital evidence. But is that a dependency that blurs the line between lawyer and service provider?

"Selecting responsive information, planning search strategies and deciding forms of production are responsibilities traditionally reserved to counsel. But confronted by the Gordian knot of electronic data discovery (EDD), lawyers now share -- and sometimes surrender -- aspects of that role to vendors and experts. When all goes well, delegation seems sensible. But what happens when a vendor error exposes lawyers to malpractice allegations, or clients to needless expense, sanctions or even an adverse judgment? Several recent cases and incidents underscore the risks.

The American Lawyer recently reported that LexisNexis Applied Discovery Inc. used software that blanked the contents of older e-mail messages. Though LNAD assured customers that the problem affected only a minute fraction of its work, the company faces questions about quality assurance and its failure to timely apply software patches.

"Flawed search methods also contributed to the $1.45 billion dollar verdict in Coleman (Parent) Holdings v. Morgan Stanley, 2005 WL 679071 (Fla.Cir.Ct. March 1, 2005). And expert incompetence drew the judge's ire and sanctions in Gates Rubber Co. v. Bando Chem. Ind., Ltd. , 167 F.R.D. 90 (D. Colo. 1996). On Dec. 1, 2006, new federal rules move EDD to center stage. For years to come, lawyers and EDD vendors will be joined at the hip in an uneasy alliance."

Read the rest of this important article for advice from three lawyers -- Michael Arkfeld, Craig Ball, & J. William Speros -- who all work as electronic data discovery consultants....