Archive for the 'Malpractice Prevention' Category


No negligent contempt

What is an appeal worth? In this case, $100 and the removal of a contempt order.

In a story by the Fulton County Daily Report (may require subscription), an attorney that missed an arraignment was fined $100 for contempt of court by the Henry County State Court Judge. The attorney explained that he had calendared the hearing in one electronic devise that, he later realized, did not synch with the calendar on his phone. The Judge found that the attorney had not willfully missed court, but that his conduct was negligent. The Judge found the attorney in contempt and issued a $100 fine.
The attorney appealed.

“I am worth appealing.” – Ben Franklin

The Court of Appeals held that there was no such thing as “negligent contempt” under Georgia law.  Accordingly, the contempt and the fine were reversed.

One lesson from this is to ensure that your multiple electronic calendar devises are properly synchronized.  Missing court can cause your client, and you, problems in both civil and criminal matters.


The Abusive Litigaiton Seminar is Coming February 4

The Georgia ICLE Abusive Litigation Seminar will be held against this year at the State Bar of Georgia, downtown Atlanta at 104 Marietta St. NW, on February 4, 2015.  This is one of the better attended CLE events, and it boasts one of the longest running, in tact, faculty going.

This seminar covers all aspects of abusive litigation in Georgia.

For over a decade, this seminar has boasted a core group of speakers that include Frank J. Beltran, Kim M. Jackson, James W. Penland, Christine L. Mast, and Hugh C. Wood.  The written materials have been used and updated for over a decade, and could be marketed as its own treatise.  The written materials are essentially a hornbook on Georgia attorney fee and abusive litigation law.

In addition, the seminar attracts some of the best and brightest judges in Georgia each year.  This year, the participating judges include Hon. David E. Nahmias, Justice, Supreme Court of Georgia, a Court of Appeals panel consisting of judges Hon. Sara L. Doyle, Christopher J. McFadden, Elizabeth L. Branch, and J.D. Smith, and Fulton County Superior Court Judge Hon. Christopher S. Brasher.

It starts early (8:10) and ends early (3:00).  The schedule is here.

The seminar is presided by Frank J. Beltran and Kim M. Jackson.

If you litigate civil cases, this is a seminar you want to attend.


Houston … We Have A Problem – Again

Frank J. Beltran

Lane Young

It is time for the second “Houston … We Have a Problem:  Not Your Typical Legal Malpractice Seminar.” 

This legal malpractice program was created by the Professional Liability Section of the State Bar of Georgia.  The seminar will take place on Thursday, January 26, 2012 at the State Bar of Georgia.

Presiding are Charlotte Perrell, Frank J. Beltran, and HPTY’s H. Lane Young, II and Kim M. Jackson.

The seminar will follow the successful format of last year’s program, mixing standard presentations and panel discussions with role-playing segments of a legal malpractice trial based on various hypothetical scenarios plucked from some of Georgia’s most interesting legal malpractice cases.

Charlotte Perrell

Kim M. Jackson

This seminar is a perfect seminar for various types of attorneys, including the following:  (1) lawyers that wish to avoid legal malpractice, (2) lawyers that practice in the area of legal malpractice, (3) lawyers that commit legal malpractice and need to know what to do, and (4) all other lawyers.
Don’t hesitate – sign up now and enjoy the best legal malpractice seminar in the history of Georgia.


Major Coverage Decisions on Attorney Check Fraud Schemes

Thus far, three state court trial court level decisions have denied coverage for the check fraud schemes discussed last week, including a Georgia trial court.  Importantly, however, an appellate court in New York and the 11th Circuit Court of Appeals has issued a published decision finding that such claims are covered.  The 11th Circuit was applying Florida law.  Click to check out these decisions.

Continue reading ‘Major Coverage Decisions on Attorney Check Fraud Schemes’


Scary fraud targeting attorneys

Lawyers are being victimized with common schemes that recall the e-mail fraud schemes from years past.  It is very important for attorneys to be aware of this scam.  It often appears to be legitimate and profitable relationship.

Basics of the fraud:

The schemes are relatively simple check frauds.  Typically, the attorney is contacted by someone purportedly acting on behalf of a foreign corporation that is owed money in a relatively simple collection matter by an American debtor.  The attorney is contacted almost always by e-mail.  The attorney is hired, often with the promise of an easy and large contingency fee recovery.  The purported client will execute a retainer agreement if asked.  Either at the beginning of the representation or shortly thereafter, the attorney is told that the debtor will pay the debt and issue a cashier’s check to the attorney.

Variations of the scheme include acting as local counsel in a divorce settlement where the “debtor” is a rich spouse that needs to make certain scheduled debts, or reminiscent of the Nigerian scams of days past, the client claims to be a wealthy dignitary or royalty who needs help getting money out of a foreign country.  In all cases, the attorney must simply receive the funds and then wire them to a designated account. 

In all cases, an attorney will receive a forged cashier’s check purportedly drawn on a familiar bank.  The attorney is instructed to deposit the check in the lawyer’s bank account and wire the funds to the designated account, minus of the course the generous contingency or other fee.   

Typically, the attorney’s bank will make the funds “available” to the attorney prior to the time the Bank confirms that the check is legitimate and the funds collected.  The fact that the Bank makes the funds available is for the depositor’s convenience and consistent with the deposit contract.  Consequently, when the fraud is discovered and the cashier’s check rejected, the Bank is permitted to reverse the transaction and credit given to the law firm.  Confirming the funds are collectible can take a week, whereas the wire from the attorney’s trust account happens nearly immediately.   By the time the fraud is discovered, the money and client are gone.

If a common trust account was used, the Bank will recover the wire transfer from other, innocent client’s funds.  The attorney must make good on the removed money or be in violation of bar rules and face liability to clients.  If a specific account were created, the Bank will demand repayment from the attorney.  The attorney is legally obligated in most cases to repay the overdraft under the depositor agreement.  Most cases involved hundreds of thousands of dollars of exposure.

To add insult to this injury, the claim may not be covered by E&O insurance.  Several opinions throughout the country have litigated the issue of coverage in these cases.  The argument is typically over the issue of whether the check funding process is providing “professional services” and “ministerial duties that occur in all types of business.”  In other words, is the deposit of funds in a trust account and the payment of those funds from a forged check a liability arising out of “professional services.” 

The decisions are now mixed.  A discussion of these important coverage decisions will follow next week.


Mind Your Conflicts

As reported earlier here, an Ames & Gough survey reported that legal malpractice cases were on the rise and getting bigger, and the primary cause was the real estate recession.  It is worth making another point about this survey, and that is that conflict of interest claims were either the most common or second most common types of claims reported by all but one of the insurance companies surveyed, and conflict of interest claims were the largest cause of malpractice claims overall.
The most important factor in conflict of interest claims is the very beginning of the representation.  Attorneys have a duty to identify and address conflicts of interest, and sometimes it is important to raise mere potential conflicts of interest, not only for the client but also for the benefit of the attorney.  Raising the issue and identifying the potential conflict may make it more likely to be recognized if the potential becomes the actual. 

Conflicts of interest are best addressed on the front end by carefully screening new clients, seeking advance consent to conflicts to conflict when appropriate, and clarifying the identity of the client in each representation.

The failure to properly advise clients in connection with conflicts of interest may result in subsequent claims of legal malpractice.  Conflict of interest cases can also be the most serious type of legal malpractice claim.  They have the potential to create two claims rather than one (each client in the conflict may bring a claim), and conflict cases will often permit a breach of fiduciary duty claim that may permit the recovery of attorney fees and punitive damages.

So remember – with each new representation, the best defense may be simple due diligence.


Encore Performance

Kim M. Jackson and another attorney spoke for 1.5 hours in a national webinar hosted by Strafford Publishing called Ending the Attorney-Client Relationship: Ethical Duties on August 24, 2010. The webinar was pre-approved for CLE credit in 31 states and “attended” by attorneys in over 25 states.

Due to the success of that program, Strafford has decided to do the program again, and I have accepted the invitation to speak on the subject again.  Strafford will host the live phone/web seminar entitled Ending the Attorney-Client Relationship – Ethical and Fiduciary Duties on Thursday, August 11, 2011, from 1:00 to 2:30 p.m. EDT.

The seminar will offer perspectives and guidance on these and other critical questions:

What ethical rules govern specific trigger events for terminating the relationship and when do attorneys have discretion to fire the client?

What should the termination notice to the client say and how much advanced notice should be provided to the client?

What are the attorney’s continuing fiduciary duties to a client post-termination?

After our presentations, I and the other panelist will engage in a live question and answer session with participants so we can answer your questions about these important issues directly.

I hope you’ll join us.  Follow the link for more information or to register.

Kim Jackson Cleans Up The Mess

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