Roundup: From the Vault
For over ten years, CLIA produced more than 70 articles for our Loss Prevention Bulletin. While discontinued in 2016, the advice shared in some of these articles is timeless and still of value. We’ve curating those articles to bring you our ‘From the Vault’ series:
In many professional liability insurance claims against lawyers, the defendant lawyer will confess that “I knew I shouldn’t have taken this file” or “I had a bad feeling about this case”. Before you take a file, you should think about whether you have the expertise, the experience, and the time to take on a matter in an area of law (or in an area of the country) which is unfamiliar to you.
Lawyers often report a potential insurance claim on a matter they have taken on for a friend or relative. These are among the most embarrassing claims for the lawyer and among the most difficult to defend for the insurer.
A client approaches a lawyer about a personal injury claim. During the first meeting, the client gives the lawyer a copy of the motor vehicle accident report and nothing more. The lawyer never receives any further details from the client and therefore assumes that the client is not interested in pursuing the claim. There is no further contact with the client until after expiry of the two-year limitation period when the client complains that the claim for damages for the injuries sustained in the accident has been lost because the lawyer did not file the statement of claim. The client further complains that the lawyer never returned calls inquiring about the status of the claim. The lawyer’s file doesn’t contain any meeting notes, correspondence or retainer agreement. How could this lawyer have better protected themselves against the ensuing claim by the client?
A lawyer was retained by the parents of a promising young person who had been seriously injured while visiting another province. The lawyer waited until the young person’s medical condition had stabilized before drafting and filing the statement of claim in the other province. It was only then that the lawyer learned that the province where the tort had occurred had a different limitation period than the lawyer’s home province and that the limitation date for bringing an action had been missed. The lawyer immediately put their insurer on notice. The insurer retained counsel in the other province who attempted, unsuccessfully, to extend the limitation period. The heavily insured, negligent tortfeasor was off the hook and the lawyer, unfortunately, was on it. What is the moral of this story?
At the spring 2012 American Bar Association Standing Committee on Lawyers’ Professional Liability National Legal Malpractice Conference, Ronald C. Minkoff, Laura Frankel, Richard A. Simpson and Robert H. Moses presented a session on professional liability claims arising out of a family law practice. Their presentation included a Top Ten list of reasons why family lawyers are sued. As you review that list, I’m sure you’ll agree that most are equally applicable to lawyers in many other areas of litigation practice.