Missoula, Montana is home base to ALPS, the largest direct writer of attorney legal malpractice in the nation. Montana is also the home of some of the biggest skiing in the United States. Thus, it seems natural to us to discuss some legal pitfalls we see during the week on the claims desk and illustrate those with what we might see on a Saturday on the mountain.
Legal malpractice claims come in all forms. Even when broken down by subject matter, jurisdiction, merit v. meritless; not one claim is the same. Nevertheless, generally speaking, similar issues do arise and one reoccurring issue involves the role of co-counsel. For purposes of this blog post, I’ll further limit the discussion of potential issues of serving as local co-counsel or relying on local co-counsel. The attorney you choose and the manner you contract with that attorney and the client can significantly impact you.
First, you and your co-counsel both owe all duties to a jointly represented client that you would owe to a client solely represented by you. While jurisdiction rules differ slightly, generally these duties can only be limited in scope by contract with your co-counsel and by consent of the client after consultation. Further, while you can limit the scope of your representation, you cannot contract out of your ethical responsibilities to your client.
Let’s discuss a few scenarios (with names, places and other specifics slightly changed) that you may think are your worst nightmare but have happened to your colleagues.
Example One: Client Joe comes to Attorney Jerry, a personal injury practitioner in New York. Client Joe was on vacation in Hawaii, and while riding his moped, was run over by a semi-truck. He suffered catastrophic injuries as a result. Attorney Jerry works up the case, schedules a pre-litigation mediation, and hires Hawaii Attorney Chelsea to file the lawsuit if necessary. He doesn’t put in writing that he just needs Chelsea to file the pleadings and he will work up the case, but they both understand. The mediation does not result in an agreement but the parties are close. Plaintiff demanded $2.5 million and the defendants offered $2.2 million. While the mediator is still working on the parties to bridge the gap, the Hawaii statute of limitation runs prior to the filing of the lawsuit. How does this work out for Jerry? In skiing terms, it looks something like this.
Example Two: California Attorney Robert, national counsel for Union Atlantic Railroad, calls Attorney Jerry who practices in Colorado to serve as local counsel for a contract dispute in which Union Atlantic is being sued for money owed for railroad repair costs. There is no representation agreement. Attorney Robert drafts all pleadings and has all communications with the client. Jerry signs the pleadings and has contact with local opposing counsel. It appeared that the dispute settled and resolved with a provision of the settlement allowing payment to be made in 6 monthly installments of $500,000. Jerry confirms with co-counsel and then gives opposing counsel confirmation that funds are available to pay the Plaintiff the settlement over time. Plaintiff agreed to dismiss the case. Thereafter, unbeknownst to Jerry, Union Atlantic released $503,000 to pay Robert and then filed bankruptcy prior to paying the full amount of the settlement. How did Jerry do? Again, as illustrated on the slopes, something like this. That’s right. Jerry ended up in time-consuming and expensive litigation as a party rather than his preferred role as counsel for a party.
Example Three: This next and final example differs from the first two because it is not loosely based on real facts as are the prior two scenarios. (However, we are sure this scenario happens frequently. Notably, we do NOT see these facts often, likely because the attorneys involved in these situations have a very high likelihood of not having to report a matter to ALPS.) Montana Attorney Felix needs to hire Washington co-counsel to assist with a probate action. Felix researches Washington Attorney Sam who he finds has previously been suspended. He does further due diligence and hires Attorney Felix to assist. Erica, Felix and the personal representative of the estate set up a phone conference to discuss duties of the attorneys and all agree on set responsibilities. The agreement is reduced to writing and signed by all three. How did Felix do? So far so good. All know their respective roles and both have agreed to calendar important deadlines. Felix* has not had to talk with an ALPS claims attorney, has not had to sit for a deposition nor had to spend time answering interrogatories. He spends his weekends skiing.
In conclusion, be aware of the pitfalls of working with another attorney. Choose your co-counsel wisely, clearly define your respective roles and obligations with your co-counsel, and limit the scope of representation after consulting with the client if necessary. Suggestions two and three must be in writing. And take your ski instruction from Felix, not Jerry.
*While not an attorney, Felix is an actual person. Felix Hahn, my nephew and a current age group national champion of the IFSA Big Mountain Freeride, is the kid in the video. We are very proud of him.