Archive for November, 2010

29
Nov
10

The David Lefkowitz Series – Part III

If you commit malpractice and upset your client, you might find yourself the target of David Lefkowitz of The Lefkowitz Firm, LLC.  David recently did you the favor of writing an article for the Fulton County Daily Report (subscription required) on how to provide superior client services and avoid legal malpractice claims.  Here is the third part of that article.

Study the law – by David Lefkowitz

Have you ever noticed how many medical journals there are? It seems like doctors have so much to read in order to keep up with their area of practice. We need to keep up with the law as well, particularly our specific areas of practice.

Twenty three years ago, I was a brand new attorney entering a litigation practice. The late, great lawyer, Tom Magill, had hired me and was helping me learn how to be a lawyer. I will never forget a lesson he taught me: Read the Civil Practice Act, from beginning to end, at least once a year. What a great lesson that was, and I have always appreciated the advice.

These days, the rules of litigation are changing from year-to-year (actually, month-to-month, as the appellate courts issue opinions interpreting recent legislative changes). If you litigate, you need to keep up with the changes. And, I think, just as importantly, you need to review what you think you already know.

The statute of limitations for a loss of consortium claim is four years, right? Yes. But wait, what if the claim arises out of a medical malpractice claim? Then the statute of limitations is two years. This has been the law since 1976. Who knew? You did if you litigate and study the relevant law. (For inquiring minds, it’s O.C.G.A. §9-3-34). Whether you are a litigator, a transactional attorney (what’s new in the tax code?) a bankruptcy attorney or you handle intellectual property, you will protect the interests of your client, and by extension, you will protect your own financial interests, by keeping up with the law.

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A corollary to David’s advice is to not accept representation in areas of the law about which you are ignorant and unable to properly study and get knowledgable.  For a discussion on a related but broader subject, see How To Ruin Your Malpractice Insurer’s Day – I.

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25
Nov
10

Happy Thanksgiving

Thanksgiving is a big deal in my house.  Ever since I bought my first house, I have hosted my family, friends, and various widows and orphans.  The kids color sugar cookies in the morning, everyone joining for dinner must cook something, often in my home, and we have served a range of 15-26 people every year.  Before dinner, I often read one of the historical Thanksgiving Day proclamations.  What can I say.  It’s my thing.  Here are some well stated explanations of what Thanksgiving was originally about.

The First Thanksgiving Day Proclamation — June 20, 1676

Historically Accurate Pilgrim/Native Conversation About Dessert And Nut Allergies

The proclamation setting the first historical three-day feast often associated with the first “Thanksgiving” dinner:

The Holy God having by a long and Continual Series of his Afflictive dispensations in and by the present War with the Heathen Natives of this land, written and brought to pass bitter things against his own Covenant people in this wilderness, yet so that we evidently discern that in the midst of his judgements he hath remembered mercy, having remembered his Footstool in the day of his sore displeasure against us for our sins, with many singular Intimations of his Fatherly Compassion, and regard; reserving many of our Towns from Desolation Threatened, and attempted by the Enemy, and giving us especially of late with many of our Confederates many signal Advantages against them, without such Disadvantage to ourselves as formerly we have been sensible of, if it be the Lord’s mercy that we are not consumed, It certainly bespeaks our positive Thankfulness, when our Enemies are in any measure disappointed or destroyed; and fearing the Lord should take notice under so many Intimations of his returning mercy, we should be found an Insensible people, as not standing before Him with Thanksgiving, as well as lading him with our Complaints in the time of pressing Afflictions:

The Council has thought meet to appoint and set apart the 29th day of this instant June, as a day of Solemn Thanksgiving and praise to God for such his Goodness and Favour, many Particulars of which mercy might be Instanced, but we doubt not those who are sensible of God’s Afflictions, have been as diligent to espy him returning to us; and that the Lord may behold us as a People offering Praise and thereby glorifying Him; the Council doth commend it to the Respective Ministers, Elders and people of this Jurisdiction; Solemnly and seriously to keep the same Beseeching that being persuaded by the mercies of God we may all, even this whole people offer up our bodies and souls as a living and acceptable Service unto God by Jesus Christ.

George Washington’s Proclamation — 1789

This was a one time day of Thanksgiving that was not repeated as a national holiday.

A General Day of Thanksgiving By The President of the United States: 

A Proclamation:

You Must Admit That I Look Presidential

WHEREAS it is the duty of all nations to acknowledge the providence of Almighty God, to obey His will, to be grateful for His benefits, and humbly to implore His protection and favour; and Whereas both Houses of Congress have, by their joint committee, requested me “to recommend to the people of the United States a DAY OF PUBLICK THANKSGIVING and PRAYER, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God, especially by affording them an opportunity peaceably to establish a form of government for their safety and happiness:

NOW THEREFORE, I do recommend and assign THURSDAY, the TWENTY-SIXTH DAY of NOVEMBER next, to be devoted by the people of these States to the service of that great and glorious Being who is the beneficent author of all the good that was, that is, or that will be; that we may then all unite in rendering unto Him our sincere and humble thanks for His kind care and protection of the people of this country previous to their becoming a nation; for the signal and manifold mercies and the favorable interpositions of His providence in the course and conclusion of the late war; for the great degree of tranquility, union, and plenty which we have since enjoyed;– for the peaceable and rational manner in which we have been enable to establish Constitutions of government for our safety and happiness, and particularly the national one now lately instituted;– for the civil and religious liberty with which we are blessed, and the means we have of acquiring and diffusing useful knowledge;– and, in general, for all the great and various favours which He has been pleased to confer upon us.

And also, that we may then unite in most humbly offering our prayers and supplications to the great Lord and Ruler of Nations and beseech Him to pardon our national and other transgressions;– to enable us all, whether in publick or private stations, to perform our several and relative duties properly and punctually; to render our National Government a blessing to all the people by constantly being a Government of wise, just, and constitutional laws, discreetly and faithfully executed and obeyed; to protect and guide all sovereigns and nations (especially such as have shewn kindness unto us); and to bless them with good governments, peace, and concord; to promote the knowledge and practice of true religion and virtue, and the increase of science among them and us; and, generally to grant unto all mankind such a degree of temporal prosperity as he alone knows to be best.

GIVEN under my hand, at the city of New-York, the third day of October, in the year of our Lord, one thousand seven hundred and eighty-nine.

(signed) G. Washington

Abraham Lincoln’s Proclamation — 1863

This lead to our current holiday.  Written by Secretary of State Sewell, this began an annual tradition of proclaiming Thanksgiving by the President for 75 years.  In 1941, congress made it a national holiday.  I think this is my favorite.

By the President of the United States of America.

A Proclamation.

Thanks To Me, You Have The Day Off Today.

The year that is drawing towards its close, has been filled with the blessings of fruitful fields and healthful skies. To these bounties, which are so constantly enjoyed that we are prone to forget the source from which they come, others have been added, which are of so extraordinary a nature, that they cannot fail to penetrate and soften even the heart which is habitually insensible to the ever watchful providence of Almighty God. In the midst of a civil war of unequaled magnitude and severity, which has sometimes seemed to foreign States to invite and to provoke their aggression, peace has been preserved with all nations, order has been maintained, the laws have been respected and obeyed, and harmony has prevailed everywhere except in the theatre of military conflict; while that theatre has been greatly contracted by the advancing armies and navies of the Union. Needful diversions of wealth and of strength from the fields of peaceful industry to the national defence, have not arrested the plough, the shuttle or the ship; the axe has enlarged the borders of our settlements, and the mines, as well of iron and coal as of the precious metals, have yielded even more abundantly than heretofore. Population has steadily increased, notwithstanding the waste that has been made in the camp, the siege and the battle-field; and the country, rejoicing in the consciousness of augmented strength and vigor, is permitted to expect continuance of years with large increase of freedom. No human counsel hath devised nor hath any mortal hand worked out these great things. They are the gracious gifts of the Most High God, who, while dealing with us in anger for our sins, hath nevertheless remembered mercy. It has seemed to me fit and proper that they should be solemnly, reverently and gratefully acknowledged as with one heart and one voice by the whole American People. I do therefore invite my fellow citizens in every part of the United States, and also those who are at sea and those who are sojourning in foreign lands, to set apart and observe the last Thursday of November next, as a day of Thanksgiving and Praise to our beneficent Father who dwelleth in the Heavens. And I recommend to them that while offering up the ascriptions justly due to Him for such singular deliverances and blessings, they do also, with humble penitence for our national perverseness and disobedience, commend to His tender care all those who have become widows, orphans, mourners or sufferers in the lamentable civil strife in which we are unavoidably engaged, and fervently implore the interposition of the Almighty Hand to heal the wounds of the nation and to restore it as soon as may be consistent with the Divine purposes to the full enjoyment of peace, harmony, tranquillity and Union.

In testimony whereof, I have hereunto set my hand and caused the Seal of the United States to be affixed.

Done at the City of Washington, this Third day of October, in the year of our Lord one thousand eight hundred and sixty-three, and of the Independence of the Unites States the Eighty-eighth.

By the President: Abraham Lincoln

William H. Seward, Secretary of State

May you find reasons to be thankful today and always.

23
Nov
10

What’s On your website?

Mike Foster, Governor, not a lawyer

The American Bar Association reports that five partners making up the management committee of a Louisiana law firm were reprimanded for allowing misleading information on their website.  The website implied that former Louisiana Governor Mike Foster was a partner at the firm Breazeale, Sachse & Wilson.  There was one problem though.  Gov. Foster did not have a law license and had never been a lawyer.  Gov. Foster did graduate law school but never took the bar exam.

The information on the website was placed there by a non-attorney employee.  The management committee was reprimanded for failure to supervise non-lawyer employees. 

The ethics opinion (one of them) can be viewed here.  The ethics rules in Georgia would apply similarly. 

The lesson from this decision?  C’mon.  You can figure it out.

22
Nov
10

David Lefkowitz’s Client Service Advice – Part II

Last week began a series written by Georgia legal malpractice attorney David Lefkowitz of The Lefkowitz Firm, LLC.  David’s practice includes representing clients in claims against attorneys.  This post is part of an article he recently wrote for the Georgia legal community in the Fulton County Daily Report (subscription required for most links).

Communicate – by David Lefkowitz

David is the one with the red Georgia shirt and red hat.

Remember that time you weren’t feeling well, you went to the doctor, and she performed some blood work? Remember how anxious you were to receive the results from the doctor or someone from her office? I submit to you that the legal matter you are handling for your client is just as important to the client as your test results were for you. Many of us are busy and struggle to find the time to return calls promptly. But clients want to know that you are focusing on their matter and that it is important to you.

Returning calls as soon as possible is an important way to let your clients know that you really do care about their issues. It’s the functional equivalent of a good bedside manner. Not all clients sue for malpractice when things go wrong. Some choose to forgive. They believe the relationship they have with their attorney is more important than the money they would recover in a suit. Your clients won’t go through that balancing process (sue or forgive) if you haven’t been treating them well throughout the representation.

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For a similar discussion, see How To Ruin Your Malpractice Insurer’s Day – V.  Join us next week for Part III of the David Lefkowitz series.

15
Nov
10

David Lefkowitz Gives Free Advice – Part I – Choosing Your Clients Carefully

Few attorneys like to receive a letter from David Lefkowitz.  David Lefkowitz of  The Lefkowitz Firm, LLC has spent the majority of his professional life suing attorneys, a few several of whom actually deserved it.  He is one of the elite “plaintiff’s” legal malpractice attorneys  in Georgia.  Thus, when he gives advice on how to avoid being sued, it is worth reading.

David recently wrote an article that was published in the Fulton County Daily Report that focused on how attorneys can provide better service and thus avoid civil claims.  Since a subscription is required to read his article in the Fulton County Daily Report, David has graciously permitted me to publish exerts of his article here at Attorney Defender.  David’s article had five suggestions for claim avoidance and better client service.  One suggestion will be posted here on Mondays for the next five weeks.

AVOIDING CLAIMS WITH BETTER SERVICE – PART I– BY DAVID LEFKOWITZ:

Protecting one’s assets in the practice of law may be achieved by multiple means.  One method is to properly organize your business structure, such as forming an LLP, LLC or other limited liability entity.  The same planning and energy that goes into the creation of a business structure, however, can also be applied to substantive risk management at the attorney-client level.

I would like to provide a 5-item list; one which will also help protect attorneys and allow them to provide better service (which, after all, is the very best way to avoid a claim).

 

Mr. Lefkowitz chooses a rather clingy client.

Choose your clients carefully

In this era of internet, television, radio, billboard and mail marketing/advertising it seems like the focus is always on how we can find more clients. Lawyers should also focus their attention on which clients they choose to represent. Once a client retains you, it can be difficult to withdraw from the attorney-client relationship. Deadlines may be pending, and withdrawal may harm your client. A judge trying to push his docket may refuse to allow you to withdraw, because it will delay the trial.

If you are representing a client who can no longer pay your invoices, and you can’t withdraw, you will wish you had taken a closer look at the client’s ability to pay before you agreed to represent him. Some lawyers are shy about asking prospective clients about their financial wherewithal. Consider starting the conversation like this: “Your financial condition is generally none of my business, but I do need to ask you a few questions in the context of this representation.” That’s a good way to break the ice and ultimately find out of a client can afford to retain your firm. In addition to determining the financial wherewithal of a prospective client, you should attempt to feel comfortable that you can help the client obtain his goals.

If a client seeks a result (revenge, perhaps?) that you know, going in, you cannot accomplish, you are better off declining the representation. Some lawyers feel that they should accept a client or a legal matter simply because they have some extra time on their hands. Please don’t fall into that trap. A bad decision regarding a new client can cost a lot more than the revenue the client may bring in.

You may have but one opportunity to say “no thanks” to a prospective client. Use that opportunity wisely.

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For a similar discussion, see How To Ruin Your Malpractice Insurer’s Day – I.  Join us next Monday for Part II of the David Lefkowitz series.

13
Nov
10

Avoiding Stress

Avoiding stress is important for an attorney. Stress can lead to depression, substance abuse, smoking, and other bad things that can lead to malpractice claims or even losing one’s license. Here is a helpful video on how to tell if you are getting too stressed out.  Which person is more stressed is a matter of opinion.

12
Nov
10

Closing Documents Key To Summary Judgment

A key defense to “malpractice” claims against closing attorneys by non-lenders is the lack of an attorney-client relationship.  In cases where there is a lender, the closing attorney is almost always representing the lender at the closing.  Despite this common relationship, Georgia’s appellate courts have permitted a number of claims against closing attorneys by non-clients.  See, e.g., Kirby v. Chester, 174 Ga. App. 881, 331 S.E.2d 915 (1985)(applying third-party beneficiary theory); Simmerson v. Blanks, 149 Ga. App. 478, 254 S.E.2d 716 (1979)(applying voluntary agency theory).

If you find any document that does not favor the lender, let me know so I can fix it.

Closing attorneys have learned from these cases, however.  Most closing attorneys now include in their forms language indicating that the attorney represents only the lender and not the buyer, seller, or any other person or entity at the closing table.  Where proper documentation is included in the closing documents, the attorney can get summary judgment on the issue of lack of privity.  See, e.g., Williams v. Fortson, Bentley & Griffin, 212 Ga. App. 222, 441 S.E.2d 686 (1994) (“The representation disclaimer precluded an actionable reliance [by the buyer] on any promise by [the attorney].”); Carmichael v. Barham, Bennett, Miller & Stone, 187 Ga. App. 494, 370 S.E.2d 639 (1988)

A recent case from the Court of Appeals shows that evidence about confusion over who the attorney represented at a real estate closing continues to create exposure issues for attorneys.  In Jenkins v. Pierce (A10A0091, Ga. App., decided June 25, 2010), the Court of Appeals reversed summary judgment for an attorney granted by the trial court.  The plaintiff claimed she was told that she thought her family was taking her to an attorney to execute a will.  On the day in question, however, she signed loan documents, a quit claim deed giving an interest in her land to her relatives, and a living will. 

The Court found that because a question of fact existed about the existence of the attorney-client relationship, the plaintiff was excused from the general rule that a party to a contract who can read, must read, or show a legal excuse for not reading.  Instead, the Court held that where a party has a confidential relationship with another party, and fails to read the documents in reliance of that relationship, the duty to read is relaxed.  Citing McWhorter Ltd. v. Irvin, 154 Ga. App. 89, 91, 267 S.E.2d 630 (1980).  The documents identified in the opinion are limited to a will, a codicil, a security deed, a quit claim deed, and a check.  There was no mention of a representation disclaimer document explaining who the attorney was representing in the closing.

Although there is much more to this case than the typical ignorance over who the attorney represents at a typical real estate closing, it is a reminder that at any closing, the attorney should include a representation disclaimer to be signed by all present explaining who the attorney is representing.




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