TIPS ON AVOIDING MALPRACTICE FOR THE CONSTRUCTION LAWYER

Cara D. Kennemer

Goins, Underkofler, Crawford & Langdon, LLP

Practice areas that produce most malpractice claims against lawyers:

1. Plaintiffs personal injury2. Real estate3. Family law4. Estate, trust and probate.

LEADING CAUSES OF MALPRACTICE CLAIMS:

1. Errors In Client Communications2. Discovery 3. Missed Deadlines And Time

Mismanagement4. Failures To Conduct Adequate

Investigations.

JOINT REPRESENTATION

TWO PARTIES TO THE SAME TRANSACTION

WHAT DO THE RULES SAY?

Consult Texas Disciplinary Rules of Professional Conduct

Rules 1.01, 1.03, 1.05, and 1.06 are applicable

RULE 1.01 Competent and Diligent Counsel

Rule 1.01 requires competent and diligent counselConsider the position of each of the potential

clients:

• Anything unique that would result in less than competent representation?

•Are you familiar enough with the law that applies to each party to be certain you can competently represent each one?

RULE 1.03Provide Reasonable

Information Rule 1.03: A lawyer shall keep a client reasonably

informed about the status of a matter and promptly comply with requests for information.

This obligation exists to BOTH clients in dual representation – even if you only consider one of them to be the “real client”

Insurance Company of North America vs. Westergren, 794 S.W.2d 812 (Tex. App. – Corpus Christi 1990, orig. proceeding):

•Court: “we find nothing in the disciplinary rules which permits a pro forma representation of a client.”

RULE 1.05No Disclosure of Confidential

Information Applies to all information relating to the representation

regardless of the source if it the client’s desire for the information to remain confidential

Consider whether one client wants to keep information confidential from the other client

Beware the resulting conflict between Rules:

•1.03 – keep each client fully informed

•1.05 – keep each client’s information confidential

RULE 1.06Loyalty

Comment 1: “loyalty is an essential element in the lawyer’s relationship to a client.”

You cannot undertake dual representation if you are unable to be loyal to BOTH or ALL clients.

Will your loyalty be tested by the hope (or promise) of future work by one of the clients? Or by knowledge about one of the clients?

RULE 1.06Avoid a Conflict of Interest

You can NEVER represent opposing parties to the same litigation.

This prohibition is non-waivable.

Determine whether the 2 clients’ interests:

•are materially and directly adverse

•affect your responsibilities to another client

Continued…

Provide full disclosure of potential problems to each client

•would disinterested lawyer conclude that client should not agree to the representation?

Obtain BOTH clients’ consent after disclosure

RULE 1.06Impermissible Conflict

Examples of impermissible conflicts:

•substantial discrepancy in parties’ testimony

•substantially different possibilities of settlement

Texas Ethics Opinion 500:“it would be a violation of Rule 1.06 to represent two or more persons injured in a single accident caused by a third person when it becomes clear that the third person has a limited amount of funds to pay a possible judgment or settlement.

Continued…

Rule 1.06(d): lawyer who has represented multiple parties in a matter shall not thereafter represent any of such parties in a dispute among the parties arising out of the matter, unless prior consent is obtained from all parties to the dispute.”

Absent an agreement, the proper course is to withdraw from the entire representation

CONCURRENT REPRESENTATION OF

ADVERSE CLIENTS

Rule 1.06(b)Conflict Among Current Clients

Although allowed, it is not encouraged.

1.06(b): states that a lawyer shall NOT represent a person, absent client consent, if the representation of that person:

reasonably appears to be or become adversely limited by the lawyer's or the law firm's responsibilities to another client or to a third person, or by the lawyer's or law firm's own interests.

Continued…

Protect confidences that a client might have shared with his attorney.

Safeguard loyalty as a feature of the lawyer-client relationship.

Client should not discover that his lawyer, whom he had trusted to protect his legal affairs, has sued him - even if the suit is utterly unrelated to any work the lawyer had ever done for his client.

MAINTAINING CLIENT CONFIDENCES IN A

TECHNOLOGICAL AGE

Rule 1.05: Client Confidences

Beware disclosing “meta data” to others

Hidden text reveals editorial comments, strategy considerations, legal issues raised by client/lawyer, or lawyer’s legal advice.

NY ethics opinion: lawyers have duty to use reasonable care when transmitting documents by email to prevent disclosure of metadata containing client confidences or secrets

LAPTOP COMPUTERS

Security concerns with public wireless access locations.

Confirm your laptop has appropriate firewall and file encryption programs.

If you sell your personal laptop or turn in laptop to your firm, make sure you’ve removed all files from the hard-drive.

iPADS AND SMARTPHONES

92% of lawyers reported using a smartphone or mobile device for email

50% of firms reported already purchasing or plans to purchase tablets by the end of 2012.

ABA Legal Technology Resource Center, Legal Technology Survey. (August 2011). International Legal Technology.

iPADS & SMARTPHONES con’t

Editing and forwarding documents via iPads or mobile devices can expose unwanted metadata such as Track Changes or Comments to an outside recipient.

Track Changes and/or Comments may not be visible on a mobile device but visible when a document is re-opened on a desktop.

Documents forwarded via iPads or other mobile devices should be cleaned at the server-level to ensure unwanted metadata is not exposed during the collaboration process.

iPAD AND MOBILE SECURITY

Remote Wipe” - returns the device to its factory settings and removes all your content.

Lock iPad with 4-digit code that will erase all data if someone enters the wrong code 10 times.

“Find my iPad” (or iPhone) app that helps users locate a lost device.

EMAIL ISSUESWhat if you accidentally receive an improper email from opposing counsel or other party?

Don’t read it – lesson from Oakland case. Notify counsel immediately.

Beware of Outlook’s automatic last name feature. Especially if your client and opposing counsel share a similar name.

Do NOT “BCC” your client when sending opposing counsel an email.

SOCIAL MEDIACaution clients against posting anything on internet

about the case.

ABA Model Rule 3.3, and most states, prohibit lawyers from knowingly making a false statement of material fact to a tribunal.

Judges have reported incidences where lawyers make statements in court that do not appear to align with their recent Facebook status updates. That can get you in hot water.

“FRIENDING” JUDGES

Judges read Facebook and many have their own Facebook pages.

Galveston Judge Susan Criss caught a lawyer who’d asked for a continuance because of father’s death. The lawyer had earlier posted a string of status updates on Facebook, detailing her week of drinking, going out and partying.

Another lawyer complained about having to handle a motion in Criss’s court. Criss zinged her too on Facebook.

TECHNOLOGY LESSONS

As Facebook, Twitter, and LinkedIn become more popular, remember that less is more.

A lawyer’s code of ethics and conduct applies in daily life and online.

Be wary of who you consort with online, and what you say. 

Anything you post on the Internet can be retrieved years later – it is permanent.

TRUTH IN NEGOTIATING

As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealing with others.

(Preamble paragraph 2)

WHAT DO THE RULES SAY?

Rule 4.01: Truthfulness in Statements to Others

•(a) lawyer shall not knowingly make a false statement of material fact/law to third person

REQUIREMENTS OF HONESTY

Rule 4.01 applies to statements made in the course of representing a client. Dishonesty in personal business matters and affairs is ok! Or at least, not in violation of Rule 4.01.

The false statement must be made knowingly. Innocent misstatements if fact or law are not violations.

Rule 4.01(a) only refers to statements of MATERIAL fact or law.

MORE RULES

Rule 8.04: Misconduct

•lawyer shall not (3) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation

Rules define “fraud” as requiring an intent to deceive, but do not define dishonesty, deceit, or misrepresentation.

No conditions regarding actual knowledge, materiality, or in the course of representation like Rule 4.01