Craig S. Hudson, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 1 East Broward Boulevard, Suite 500 Fort Lauderdale, FL Our Other Florida Locations Jacksonville  Orlando  Tampa Main Offices Walnut Street, Philadelphia, PA A Primer on Professional Liability Issues A Primer on Professional Liability Issues for Florida Family Law Attorneys for Florida Family Law Attorneys A Primer on Professional Liability Issues A Primer on Professional Liability Issues for Florida Family Law Attorneys for Florida Family Law Attorneys Presented By

2 Lawyers Do Sue Lawyers Over 20 websites advertise for plaintiff lawyers looking for plaintiff legal malpractice services. A Primer on Professional Liability Issues for Florida Family Law Attorneys

ABA Study Since 2003, in a study conducted by the ABA, legal malpractice claims have risen by 33% A Primer on Professional Liability Issues for Florida Family Law Attorneys

ABA Study re: Claims by Law Type Personal Injury (Plaintiff) – 22% Real Estate – 20% Family – 10% Insurance Defense – 3% Note - down from 9.96% of all claims since 2003 study A Primer on Professional Liability Issues for Florida Family Law Attorneys

ABA Study re: Claims by Size of Firm Small firms have disproportionate amount of claims Solo – 37% Firms with 2-5 attorneys – 33% Firms with 6-10 attorneys – 9% A Primer on Professional Liability Issues for Florida Family Law Attorneys

ABA Study re: Claims by Level of Experience New lawyers with less than two years practice reported the least amount of claims while lawyers in practice 11 to 20 years reported the most. A Primer on Professional Liability Issues for Florida Family Law Attorneys

ABA Study Claims wherein no indemnity payments are issued or claim is abandoned, have dropped from 61% to 51% A Primer on Professional Liability Issues for Florida Family Law Attorneys

ABA Study Claims with payments over $2,000,000 have risen 41% (1 out of every 930 claims) A Primer on Professional Liability Issues for Florida Family Law Attorneys

9 Life of a Claim Less than 6 months % 6 to 12 months % 12 to 24 months % 24 to 36 months % Over 36 months % A Primer on Professional Liability Issues for Florida Family Law Attorneys

10 Disposition of claims No payment – claim abandoned – 51.4% Settlement payment – no suit filed – 21.32% Suit dismissed - Judgment for Defense – 14.62% Settlement Payment – suit commenced – 11.87% Payment – Judgment for Plaintiff – less than 2% A Primer on Professional Liability Issues for Florida Family Law Attorneys

11 Numbers of Claims by Type of File Activity Preparation, film transmittal of document – 25.51% Commencement of Action/Proceeding – 17.32% Advice – 12.68% Pre-Trial, Pre-Hearing – 11.29% Settlement/Negotiation – 7.67 Trial or Hearing – 5.56% A Primer on Professional Liability Issues for Florida Family Law Attorneys

12 Family Law Why is Family Law an area that is ripe for the legal malpractice claim? A Primer on Professional Liability Issues for Florida Family Law Attorneys

13 Family Law – It's different from other areas in the practice of law It's personal. Unlike other areas of the law it is personality-driven rather than transaction based. It involves many areas of the law, requiring a wide variety of skills and knowledge of diverse areas of law. Rules of Substantive and Procedural Law are different than other areas of the law. A Primer on Professional Liability Issues for Florida Family Law Attorneys

14 Family Law Reported jury verdicts in legal malpractice cases involving Family Law Attorneys A Primer on Professional Liability Issues for Florida Family Law Attorneys

15 Family Law - Problem areas Identification and evaluation of marital assets Promises Reliance on prior counsel evaluations Lack of communication A Primer on Professional Liability Issues for Florida Family Law Attorneys

16 Common allegations against Family Law Attorneys My Attorney Did Not Know the Law! A Primer on Professional Liability Issues for Florida Family Law Attorneys

17 Common Allegations against Attorneys Bad result = professional negligence Clients often view an attorney's performance by the outcome of the case High settlement demands set expectations A Primer on Professional Liability Issues for Florida Family Law Attorneys

18 Common Allegations against Attorneys Not active as my attorney (failure to communicate) "If it isn't in the file, it didn't happen" If client feels abandoned by attorney, claim is inevitable A Primer on Professional Liability Issues for Florida Family Law Attorneys

19 Common Allegations against Attorneys Lack of informed consent Settlements Trail strategies and decisions Retention of experts A Primer on Professional Liability Issues for Florida Family Law Attorneys

20 Common Allegations against Attorneys Comparative results Clients view legal system as means for recovery Compare recovery to others (whether or not similar) A Primer on Professional Liability Issues for Florida Family Law Attorneys

21 Top 10 ways to get sued for malpractice 10. High Risk engagements. Frequent change in counsel Pre-nups – Is the fee commensurate with the risk? A Primer on Professional Liability Issues for Florida Family Law Attorneys

22 Top 10 ways to get sued for malpractice 9. Make promises to the client or allow client to have (and keep) unrealistic expectations. "Your case is worth One Million Dollars" "We will take him/her to the cleaners" "You will never have to return to work" "You will not have to pay alimony" A Primer on Professional Liability Issues for Florida Family Law Attorneys

23 Top 10 ways to get sued for malpractice 8. Miss a filing deadline "Oops – sorry but I was counting on my paralegal to get that filed" A Primer on Professional Liability Issues for Florida Family Law Attorneys

24 Top 10 ways to get sued for malpractice 7. Inappropriate relations with clients and/or family members These relationships always end badly for the licensed professional A Primer on Professional Liability Issues for Florida Family Law Attorneys

25 Top 10 ways to get sued for malpractice 6. Puff regarding relationship with other counsel and/or court "The judge and I go way back" "He/She is a classmate of mine" "We used to work together" A Primer on Professional Liability Issues for Florida Family Law Attorneys

26 Top 10 ways to get sued for malpractice 5. Don't return calls, letters or s The client who won't stop calling A Primer on Professional Liability Issues for Florida Family Law Attorneys

27 Top 10 ways to get sued for malpractice 4. Dabble in area of law not familiar with as a favor to friend/family "Sure I can help with that, it's easy" A Primer on Professional Liability Issues for Florida Family Law Attorneys

28 Top 10 ways to get sued for malpractice 3. Don't document, in writing, key decisions and don't write down your advice and evaluations. A Primer on Professional Liability Issues for Florida Family Law Attorneys

29 Top 10 ways to get sued for malpractice 2. Abandon your client If you withdraw, the client will hold you responsible for everything that happens afterward A Primer on Professional Liability Issues for Florida Family Law Attorneys

30 Top 10 ways to get sued for malpractice 1. Sue your client for fees Analyze the possible recovery of the outstanding fees against the loss of your deductible and the costs associated with defending a suit A Primer on Professional Liability Issues for Florida Family Law Attorneys

31 Conflict between you and your client. Be careful of what you write, because nothing is privileged. Duty to disclose? A Primer on Professional Liability Issues for Florida Family Law Attorneys Malpractice which occurs during representation

32 What to do If you are notified by a former/current client of a legal malpractice claim or if you are served 1.Contact your legal malpractice insurer. 2.Preserve your file "as is" and do not attempt to fix your file. 3.Critically review your work. A Primer on Professional Liability Issues for Florida Family Law Attorneys

33 Remember Your entire file (and everything in it and not in it) may be used as an exhibit against you at some later date. Practice defensively - document everything and watch what you say. A Primer on Professional Liability Issues for Florida Family Law Attorneys

34 What are your rights In dealing with your insurance company? A Primer on Professional Liability Issues for Florida Family Law Attorneys

35 Statement of Insured Client’s Rights An insurance company has selected a lawyer to defend a lawsuit or claim against you. This Statement of Insured Client’s Rights is being given to you to assure that you are aware of your rights regarding your legal representation. This disclosure statement highlights many, but not all, of your rights when your legal representation is being provided by your insurance company. A Primer on Professional Liability Issues for Florida Family Law Attorneys

36 Statement of Insured Client’s Rights 1.Your Lawyer. If you have questions concerning the selection of the lawyer by the insurance company, you should discuss the matter with the insurance company and the lawyer. As a client, you have the right to know about the lawyer’s education, training, and experience. If you ask, the lawyer should tell you specifically about the lawyer’s actual experience dealing with cases similar to yours and give you this information in writing, if you request it. Your lawyer is responsible for keeping you reasonably informed regarding the case and promptly complying with your reasonable requests for information. You are entitled to be informed of the final disposition of your case within a reasonable time. A Primer on Professional Liability Issues for Florida Family Law Attorneys

37 Statement of Insured Client’s Rights 2. Directing the Lawyer. If your policy, like most insurance policies, provides for the insurance company to control the defense of the lawsuit, the lawyer will be taking instructions from the insurance company. Under such policies, the lawyer cannot act solely on your instructions, and at the same time, cannot act contrary to your interests. 3. Litigation Guidelines. Many insurance companies establish guidelines governing how lawyers are to proceed in defending a claim. Sometimes those guidelines affect the range of actions the lawyer can take and may require authorization of the insurance company before certain actions are undertaken. You are entitled to know the guidelines affecting the extent and level of legal services being provided to you. A Primer on Professional Liability Issues for Florida Family Law Attorneys

38 Statement of Insured Client’s Rights 4. Confidentiality. Lawyers have a general duty to keep secret the confidential information a client provides, subject to limited exceptions. However, the lawyer chosen to represent you also may have a duty to share with the insurance company information relating to the defense or settlement of the claim. 5.Conflicts of Interest. Most insurance policies state that the insurance company will provide a lawyer to represent your interests as well as those of the insurance company. The lawyer is responsible for identifying conflicts of interest and advising you of them. A Primer on Professional Liability Issues for Florida Family Law Attorneys

39 Statement of Insured Client’s Rights 6.Settlement. Many policies state that the insurance company alone may make a final decision regarding settlement of a claim, but under some policies your agreement is required. If you want to object to or encourage a settlement within policy limits, you should discuss your concerns with your lawyer to learn your rights and possible consequences. 7. Your Risk. If you lose the case, there might be a judgment entered against you for more than the amount of your insurance, and you might have to pay it. Your lawyer has a duty to advise you about this risk and other reasonably foreseeable adverse results. A Primer on Professional Liability Issues for Florida Family Law Attorneys

40 Statement of Insured Client’s Rights 8.Hiring Your Own Lawyer. The lawyer provided by the insurance company is representing you only to defend the lawsuit. If you desire to pursue a claim against the other side, or desire legal services not directly related to the defense of the lawsuit against you, you will need to make your own arrangements with this or another lawyer. 9. Reporting Violations. If at any time you believe that your lawyer has acted in violation of your rights, you have the right to report the matter to The Florida Bar, the agency that oversees the practice and behavior of all lawyers in Florida. For information on how to reach The Florida Bar call (850) or you may access the Bar at A Primer on Professional Liability Issues for Florida Family Law Attorneys

41 § Claims administration (1) Without limitation of any right or defense of an insurer otherwise, none of the following acts by or on behalf of an insurer shall be deemed to constitute a waiver of any provision of a policy or of any defense of the insurer thereunder: (a) Acknowledgment of the receipt of notice of loss or claim under the policy. (b) Furnishing forms for reporting a loss or claim, for giving information relative thereto, or for making proof of loss, or receiving or acknowledging receipt of any such forms or proofs completed or uncompleted. (c) Investigating any loss or claim under any policy or engaging in negotiations looking toward a possible settlement of any such loss or claim. A Primer on Professional Liability Issues for Florida Family Law Attorneys

42 § Claims administration (2) A liability insurer shall not be permitted to deny coverage based on a particular coverage defense unless: (a) Within 30 days after the liability insurer knew or should have known of the coverage defense, written notice of reservation of rights to assert a coverage defense is given to the named insured by registered or certified mail sent to the last known address of the insured or by hand delivery; and (b) Within 60 days of compliance with paragraph (a) or receipt of a summons and complaint naming the insured as a defendant, whichever is later, but in no case later than 30 days before trial, the insurer: 1. Gives written notice to the named insured by registered or certified mail of its refusal to defend the insured; 2. Obtains from the insured a nonwaiver agreement following full disclosure of the specific facts and policy provisions upon which the coverage defense is asserted and the duties, obligations, and liabilities of the insurer during and following the pendency of the subject litigation; or (3) Retains independent counsel which is mutually agreeable to the parties. Reasonable fees for the counsel may be agreed upon between the parties or, if no agreement is reached, shall be set by the court. A Primer on Professional Liability Issues for Florida Family Law Attorneys