Articles Posted in Managing Your Practice

This South Carolina case reminds us of our responsibilities when receive money on behalf of a client and are aware that a portion of the proceeds have been assigned to a third party.

The Court found that the lawyer was aware of the assignment and went on to say as follows:  "A letter of protection offers one method protecting a creditor’s interest. However, the absence of a letter of protection does not automatically relieve an attorney of a duty under an assignment."

The Court cited several cases in support of its position, as well as these sections from 1.15 of the RPC:

Plaintiff’s lawyers need to be aware that legislation passed last year by the General Assembly requires the reporting of fees and expenses received as a result of medical negligence litigation in 2006.  The reports are due at the offices of the Department of Commerce and Insurance on or before April 2, 2007.

The instructions for preparing the form  it may be found here.  The form itself is found here.

As one would expect, there are some problems with the reporting forms.  I urge you not to simply object to filing the form (there are fines associated with not submitting the information on time) but instead fill out the form as completely and accurately as you can and accompanying it with an appropriate cover letter indicating the problems you identified.  Such a letter will not only protect you from being accused of submitting inaccurate information (because of deficiencies in the form) but also will help the Department understand the shortcomings of the form so that it can be redesigned.

This fascinating article is written by J.D. Hull, a lawyer from San Diego.  It is called "Professionalism Revisited: What About the Client?

It makes some wonderful points about the client view of what we call in the South the "good ol’ boy system" of law practice.  We are seeing increasing problems with adverse counsel who claim they are too busy to take depositions for, say, five or six months – but not to busy to accept representation in a new case.  Or adverse counsel who cannot set a case for trial in 2007 – just too busy.

When push comes to shove we have to count on judges to remind lawyers that litigation is about clients, not about lawyers.  Judges have to create and enforce deadlines, and judges have to require people to make themselves reasonably available to advance cases toward trial.  There is no reason that 90% of cases cannot be tried in one year.  There is no reason that the other 10% cannot be tried within 18 months.  What it takes to accomplish this goal is for lawyers and judges to remember that the system exists for the benefit of the clients and the public, not for the convenience of the Bench and Bar.

Judge Young from Blount County, who enjoys a good reputation and whom I have always found to be quite pleasant, has popped a plaintiff with over $1,000,000 in sactions for "scorched earth" litigation tactics.

According to Knoxnews.com, Judge Young wrote that "[t]he summary judgment record shows that [plaintiff]O’Boyle did not have evidence to support material allegations and factual contentions in his complaint and that O’Boyle asserted and aggressively pursued frivolous claims which were devoid of merit."

The article says that "Young’s ruling details numerous examples of O’Boyle misrepresenting facts, concluding, "’O’Boyle’s failure in this case was so widespread and fundamental as to evidence an improper purpose.’"  Young noted in his ruling that the case generated 18 feet worth of files and 1,866 docket entries, and spawned related litigation in federal and state courts. He also noted that the plaintiffs – which included O’Boyle’s associates in New Midland Plaza Associates – had previously been sanctioned twice and held in contempt twice, paying out more than $127,000 in fines and penalties. "

Is there anything duller than the rules of service of process?  Perhaps not.  Unless the only thing standing between you and collection of a $53,000,000 default judgment is application of those rules.  Or unless your  defense to a $53,000,000 default judgment is failure of service of process.  Then Rule 4 starts looking interesting.  Or terrifying.

Plaintiff obtained a $53,000,000 default judgment.  Defendant corporation attempted to prevent execution on it, saying that process was not served on its registered agent (Caldwell) but rather on his secretary (Daniels), who represented that she was Caldwell’s secretary, had accepted service of process for Caldwell in the past, and would give the papers to Caldwell.

The evidence showed that Defendant did not answer or otherwise respond to the complaint and did not respond to Plaintiff counsel’s inquiries.  Nor did it attend the hearing on a motion for a default judgment.  Nor did it act after being sent a copy of order granting default judgment.  Nor did it attend attend the hearing on the default judgment.  Nor did it act after being sent a copy of the final judgment.Only when the judgment was filed in Tennessee to start the execution process did Defendant begin to fight.

My friend Keith Williams posted a comment that asked about the Tennessee ethics opinion that discusses how to handle the issue raised in the proceeding post – how should we handle liens asserted by health care providers when we have not  signed a contract obligating us (as lawyers) to recognize the lien.

There is a Tennessee Ethics Opinion on point.  Here it is:

FORMAL ETHICS OPINION 87-F-109

You resolve a case by settlement or judgment and the check is sent to your office.  The check has been deposited in your trust account, has cleared the bank, and the proceeds are now ready for distribution.  There are several health care providers who gave care to your client concerning the injuries she received in the wreck.  Can you (as a lawyer) be held liable if you don’t pay their bills out of the settlement proceeds?

The Wisconsin Supreme Court recently answered that question, with a slight twist on the facts.  In a 20-page opinion brought by a chiropractor against an attorney, the WSC held that "We determine that Dr. Yorgan may not hold Attorney Durkin liable for payment because Durkin did not sign the  agreement or otherwise agree to be liable. Additionally, we  determine that imposing liability on Durkin is not dictated by  public policy. Finally, we determine that Yorgan is not  entitled to an equitable lien enforceable against Attorney  Durkin."  (Paragraph 2).

Note the additional facts I left out of the hypothetical in the first paragraph:  the attorney did not sign the agreement between the chiropractor and the patient providing that the patient was to direct her attorney to pay the chiropractor out of the settlement proceeds and purporting to give a lien against the recovery.  However, the attorney received a copy of the document at the time he got medical records from the chiropractor.  Moreover, the attorney had a conversation with the chiropractor after the claim was settled about reducing the bill.

Pennsylvania lawyer Michael Radbill, a Philadelphia attorney who served time in prison for defrauding insurance companies by filing claims on behalf of personal injury plaintiffs who faked injuries and participated in staging slip-and-falls, has been disbarred. He served a one year prison term – which seems light but seems truly unjust when compared to that ordered for Anna Alaya (the finger-in-the-chili-at-Wendy’s woman).

He also had some tax problems – apparently the IRS was disappointed that he was deducting salaries paid to his wife and his girlfriend when neither of them worked in the office.

Here is the article from Law.com.

The male plaintiff said that he slipped, fell, and sustained various injuries on the sidewalk outside of his apartment early one morning. He and his wife brought suit.

Defendant found a medical record (from a provider not listed in answers to interrogatories by the plaintiffs) that indicated that plaintiff was treated for a dog bite on the morning of the alleged incident. He made no reference to his alleged fall. A scar he said was related to the fall was in a location similar to the site of the dog bite.

There were other problems with plaintiff’s medical history as well – the type of stuff that a defense lawyer drools over. This defense lawyer, however, stopped drooling long enough to file a motion to dismiss the case for fraud. The case was dismissed, and the Florida District Court of Appeal, First District, affirmed.