Category Archives: Blogs

Army officer gave a false confession to protect his family

Michael and Heather Livingston are the parents of three beautiful children; a daughter, Hannah, and two twin boys, Jacson and Joseph. This family of five had their world turned upside down when their son, Jacson, and later their son Joseph, were wrongfully assumed to be suffering from child abuse. It all started when concerned mother, Heather, took the then 5-week old Jacson to the Doctor after noticing a bump on the back of his head.  A CT scan result showed the infant had a mild scull fracture. How did this lead to discovering fractures on his brother Joseph’s ribs, Social Services taking all three of the children away from their parents, and Michael Livingston giving a false confession in hopes of keeping his family together?

Read the full story here to learn how our team at Bland Richter is helping the Livingston’s put this terribly misconstrued past behind them as they try and move forward with their lives as a happy, healthy family unit.

Statutes of Limitation in S.C. Legal Malpractice

Common Sense Reigns – Epstein is Dead – Sort of

Since 2005, legal malpractice attorneys in South Carolina have been navigating the pitfalls of determining the statute of limitations under Epstein v. Brown, 610 S.E.2d 816.  For those unfamiliar with Epstein, here is the skinny:  Doctor gets hammered by a jury; lawyer tells Doc not to worry because the verdict will get reversed on appeal; after MORE THAN THREE YEARS on appeal, the verdict is upheld; Doctor sues lawyer; Supremes say “not so fast” – the statute of limitations was deemed to have commenced upon the return of the adverse verdict notwithstanding the fact that the same lawyer appealed the verdict; as a result, the legal malpractice case was time barred.  EPSTEIN RATIONALE:  The good Doctor knew that he was harmed upon the return of the verdict and the appeal was nothing more than an effort in mitigation.  Tricky, right?

RIGHT.  In Stokes-Craven Holding Corp. v. Scott Robinson, Opinion No. 27572 (Sept. 9, 2015), the Supremes returned to Epstein and tossed it.  Like Epstein, Stokes-Craven involved another “trial gone wrong” underlying case and subsequent unsuccessful appeal.  Also like Epstein, the same lawyer represented the client on both the trial and appellate levels.  Although the Stokes-Cravenopinion points out factual distinctions between the two cases, the opinion reads much more like our Court availing itself of an opportunity to kill a poor precedent that left South Carolina in the noted minority of jurisdictions around the Country which failed to adopt the continuous representation rule to toll the running of the statute of limitations in situations such as these.  While not adopting the continuous representation rule, our Court did adopt a new rule that strikes a pretty fair middle ground between Epstein and the majority.

Here is how the compromise works: 1) we still recognize the “discovery rule” in determining the statute of limitations for legal malpractice; 2) the statute does not begin to run until the client is aware of all four elements of the cause of action (duty, breach, causation, damage); 3) the statute “MAY” be tolled during an appeal provided the client is not aware that he or she has been harmed by errors of the attorney; and 4) the final outcome of an appeal represents the outer limit of the time for tolling purposes (ie. the client can say prior to the affirmation of an appeal that he or she did not appreciate that they were harmed by errors of the attorney, but the client better wake up when the final decision is rendered).

CAUTION:  The new rule does NOT adopt the continuous representation rule and it does NOT say that the statute of limitations is automatically tolled during the pendency of an appeal.  For example, what if the client writes an email that says in essence “my lawyer stinks, but I will let her try to fix this mess on appeal even though it’s costing me a fortune?”  One should expect that the time is not tolled for this client.  While we would still advocate that the continuous representation rule should prevail, the Stokes-Craven test seems a reasonable compromise that embraces the longstanding discovery rule in South Carolina.  The bottom line is this:  The objective test of Epstein has been replaced by the subjective test of Stokes-Craven.  Determining the commencement date for the running of the statute of limitations in legal malpractice remains a complicated matter, although Stokes-Cravenappears far more client-centric than its predecessor.

Ronnie Richter and Eric Bland

Assigning Legal Malpractice Claims – The Skipper Ripples

It’s a great thing when lawyers receive clear direction from the Supreme Court on a change of the law, right?  According to Skipper v. ACE Property and Casualty Insurance Company (Opinion No. 27547), the South Carolina Supreme Court made crystal clear that legal malpractice cases in South Carolina are not assignable … well, perhaps crystal is overstating the matter a bit.  In fact, peering into the crystal ball of Skipper raises questions both for what it says and what it fails to say.

Here’s the quick set up.  Skipper was severely injured in a motor vehicle accident.  The good news is that the vehicle which struck Skipper was owned by a logging company with a $1,000,000.00 commercial liability policy.  The story took a dark turn when Skipper’s demand for policy limits was answered by an offer of $50,000.00.  This exchange seems to have inspired the Skipper team and the logging team to view the carrier and its legal counsel as a common enemy.  As a result, Skipper and the logging company entered into a settlement agreement in which a) the logging company confessed judgment to Skipper for $4,500,000.00 (yes – $4,500,000.00); b) the logging company admitted liability (this only works with an admission of fault); c) the parties entered into an assignment of claims, including logging co.’s dubious legal malpractice claim against its attorneys; and of course there’s d) the logging company was obligated to assist in the prosecution of the legal malpractice claim.

Armed with the assignment, a legal malpractice action was filed.  In response to a motion to dismiss the claim on the grounds that the assignment of the malpractice claim was invalid, the Federal District Court certified a very narrow question to our Supremes:  “whether a legal malpractice claim can be assigned between adversaries in litigation in which the alleged malpractice claim arose.”  After considering the law from other jurisdictions, the South Carolina Supreme Court held that “the assignment of a legal malpractice claim between adversaries in litigation in which the alleged malpractice arose is prohibited.”  The basis for the decision is founded upon a concern for collusion between the parties, collusion in which the parties would in essence “transmute a claim against a penniless adversary into a claim against the adversary’s wealthier lawyer.”

As it relates to the Skipper case, our Court had already warned us about collusion in the assignment of claims.  In Fowler v. Hunter, 388 S.C. 255, 697 S.E.2d 531 (2010), our Supremes upheld the assignment of a “professional negligence” claim against an insurance agency in large part because there was “no collusion involved in the settlement” which gave rise to the assignment.  Having been forewarned that the Court would likely take a dim view of an assignment of claims that appeared collusive in nature, perhaps the Skipper parties were a bit aggressive in confessing judgment for $4,500,000.00 and requiring that the logging company cooperate in the prosecution of the assigned claim.  Collusive?  You be the judge.  Of course, while Skipper involved the assignment of a “professional negligence” claim like Fowler, the Skipper case dealt with a far more sacred cow – the assignment of a legal malpractice claim.

So where then does the Skipper ruling fall short and what questions does it invite?  The first question is why the opinion lacks any reference to privity.  If the first element of a legal malpractice claim is the existence of an attorney client relationship (ie. privity between the parties), why analyze the matter at all beyond simply invoking the “rule” that privity is required in legal malpractice claims and dismissing the case?  We submit that the reason is simple:  privity in legal malpractice is dead.  A review of the cases over the recent past shows a gradual decline of privity in legal malpractice and its replacement by a more esoteric discussion of duty (ie. to whom does a lawyer owe duties in various circumstances).  If privity were on life support, the Court pulled the plug in Fabian v. Lindsay, 410 S.C. 475, 765 S.E.2d 132 (2014), by recognizing the right of a will beneficiary to sue the drafting lawyer as a third party beneficiary when errors made by the attorney defeat or diminish the client/testator’s intent.  Rest in peace privity.

While Skipper is very clear in what it says, the opinion ultimately says very little.  This is true because of the many qualifiers to the opinion that cage Skipper into a tight little box.  It is not as simple as “legal malpractice claims are not assignable.”  To the contrary, the Skipper test involves a) an assignment of the claim, b) between adversaries in litigation, c) in which the malpractice arose.  What about the assignment of a claim to a true third party?  What if the malpractice arose in related but separate litigation such that the role reversal is not quite so stark, obvious and offensive? What about a simple lien interest against the future proceeds of a legal malpractice case without an assignment at all?  Surely, this would pass muster.  What about the assignment of a legal malpractice claim arising out of a transactional setting, an estate setting, a tax advice setting, etc., etc.  One can only surmise that if our Court intended a broad, sweeping and bright-line test,Skipper afforded every opportunity to provide one.

Here’s an alternative and simple holding for Skipper:  you can’t assign legal malpractice claims.  Ah, but if life were so simple, we’d have nothing to blog about now would we?

Ronnie Richter and Eric Bland

What Happens When Life Happens

It’s been quite some time since our last post. Life happens. My wife and I went through a miraculous experience together earlier this year. As a sufferer of polycystic kidney disease, my wife’s kidney function entered its end stage last summer and she was placed on the kidney transplant list. Because we had determined that the gift of a kidney would be simply too great to accept without reciprocation, I began qualification testing last fall to become a kidney donor. Of course, there was always the dream chance that I would be a match for my wife… During the week of Christmas, 2014, we received the news that I was a good candidate for donation – AND that I was a good match for my wife! The word miracle is not misplaced here. In January, 2015, my wife and I successfully underwent surgery together. I am happy to report that we are both fully recovered and healthy.

So what does any of this have to do with the practice of law? Well, quite a bit actually when you consider that the practice of law doesn’t stop when life happens. From personal experience, I would recommend that the key to juggling the immediate demands that life places upon you with the ongoing demands of your practice is communication.

  1. With Your Partners and Support Staff: It is critical that you share your circumstances with your partners and support personnel so that you can plan for your time away from the practice and so that you can plan ahead to ensure that client needs and expectations will be met. I was blessed to have terrific people around me who rallied to pick up the load and, frankly, to protect me. I remain humbled to this day by their response. If you are a solo practitioner, then involve your friends and colleagues. I think you too will be surprised by the willingness of others to come to your aid.
  2. With Your Clients: The job of an attorney to manage client expectations does not begin and end at the time of the initial engagement. It is a process that should be pursued throughout the duration of the representation. If you know that life will take you away for a period of time from your ability to respond to phone calls or emails in a timely manner, let your clients know. The truth is always the obvious answer and, yes, clients can handle the truth.
  3. With the Court: If you have court / trial deadlines that will be impacted by your personal circumstances, it is critical that you communicate your situation with the courts in which you appear. You will find that the bench is protective of the bar and that our judges will likely receive your requests with an attitude more akin to genuine concern than simple understanding.
  4. With Opposing Counsel: In my practice, I feel fortunate to find good lawyers and good people on the opposite side of the cases we represent. While we rarely view the cases through the same lenses, we operate in an atmosphere of mutual respect in which it is acceptable to have an honest disagreement over the facts, the law or both. Communicate with opposing counsel when events outside of your control will impact your ability to be responsive to the cases you have in common.

While all of this may seem minor and self-evident, it is amazing how many malpractice situations arise out of the simple failure to communicate. As a client of ours once taught us, people don’t trip over mountains, they trip over ant hills. Don’t let this ant hill trip you up.

Ronnie Richter

Are You Practicing Law Out of State?

Or the more important question:  By representing an out of State client have you “purposely availed” yourself of the privilege of conducting business there such that it would be fair to hale you into their courts to answer for your alleged errors?  I know, I know – you never actually stepped foot in the other State and you only wrote a few letters that found their way over the border.  You should be safe, but then again …

In First Reliance Bank v. Romig, 2014 WL 5644602 (D.S.C., November 4, 2014), the United States District Court rejected the motion of an Atlanta attorney to dismiss a malpractice action which had been filed against him in South Carolina arising out of his representation of a Florence, South Carolina based bank.  In short, the bank complained that its Atlanta lawyer failed to give proper notice to its E&O carriers after claims were made against the bank which resulted in the denial of coverage and in the bank being forced to pay hundreds of thousands of dollars for claims which would have otherwise been covered.

The attorney, Romig, maintained no offices in South Carolina, did not solicit business in South Carolina and never stepped foot in the State of South Carolina in furtherance of his representation of the bank.  All of these factors would weigh significantly against the exercise of personal jurisdiction here.  However, in denying Romig’s motion to dismiss for lack of jurisdiction, the Court noted that a) Romig accepted the role as lead counsel on claims which arose in South Carolina, b) the representation was not “fleeting”, but instead lasted for two years, c) Romig made at least 74 contacts with South Carolina via letter, phone and email and d) Romig sent letters to South Carolina businesses threatening to sue them on the bank’s behalf.

Following a lengthy recitation of cases from around the Country finding both for and against jurisdiction, the Court identified a bright-line test of sorts:  “Courts reviewing these and other similar cases have noted a ‘common theme’ in their resolution: ‘where the legal malpractice claim is filed in the same forum as the original action serving as the predicate for the legal malpractice (or where it would have been filed), jurisdiction is found; where the legal malpractice claim is filed in a different forum, jurisdiction is lacking.’

For Romig, threatening to sue someone in South Carolina for claims that would have to be prosecuted in South Carolina served as an invitation to stay in South Carolina and to enjoy a little Pee Dee barbeque to go along with his malpractice claim.

PRACTICE POINTER:  If you are representing a client for a matter that arises in a foreign jurisdiction, please appreciate that you are traversing a fine line that may ultimately get you invited to answer for your conduct elsewhere.  While not addressed in Romig, it is also reasonable to expect that the foreign jurisdiction’s State Bar may have a keen interest in your activities as well.  After all, if you have represented a client to such an extent that a court sweeps you into its jurisdiction, have you not also engaged in the unauthorized practice of law?  At least in the Romig decision, the line that appears to have been crossed was the threat of bringing an action which could only have been brought in the foreign jurisdiction.  As with most things in life – if you’re in for the pleasure, you’re in for the pain.

Ronnie Richter and Eric Bland

When and How to Refer Out a Case:

WHEN: If you are asking yourself the question “should I refer this case out,” the likely answer is “yes.” After all, the lawyer subconscious and instinct is keen and it is usually correct. The question itself is most likely the by-product of an internal recognition that you either lack the experience, the resources or the time to provide competent representation. It is a validation that while you may not recall the rules by name and number, your ethical baptism has instilled in you a strong desire to follow the rules and to do so in the best interests of the client. Your inner voice has reminded you that:

  • Model Rule 1.1 requires that for any engagement, the lawyer must provide competent representation which by definition assumes that the attorney has the “legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” NOTE: Comment 2 to Rule 1.1 permits the “association” of an attorney with established competence in the subject matter as a means of discharging the duty to provide competent representation.
  • Model Rule 1.3 requires that an attorney act with “reasonable diligence and promptness” in representing a client.
  • Practice Pointer: While no Model Rule specifically addresses the financial ability of an attorney to undertake representation, it seems fundamental that an attorney cannot provide competent representation in undertaking a matter for representation when the attorney lacks the resources which will be necessary in order to provide competent representation. The better practice in such situations is to refer the matter out and/or to associate outside counsel.

HOW: Congratulations. As Dirty Harry famously stated, “A man’s got to know his limitations.” You have recognized your limitations and have wisely decided to refer a matter out, rather than to commit malpractice. The real question is not how to refer out a case, but how to refer out a case and still participate in the fee – right? The following is a non-exhaustive list of the issues presented by this situation:

In house referrals: In house referrals are not subject to the rules on fee sharing. Model Rule 1.5(e) addresses the division of fees between lawyers “who are not in the same firm.” Implicitly, the Rule would apparently bless the referral of a matter within a firm to an attorney with specialized knowledge and still permit the referring attorney to participate in the fees. This makes some inherent sense as the referring member by virtue of their membership in the firm will have both financial and ethical responsibility over the matter.

Outside Referrals: Consistent with the Rules, the policy behind Model Rule 1.5(e) is client protection (not necessarily lawyer protection). Rule 1.5(e) permits the agreements for the division of fees between lawyers of different firms ONLY IF:

            1. The division is in proportion to the services performed by each attorney OR each lawyer assumes joint responsibility for the representation; NOTE: While the division may be based on the proportion of work performed OR on the premise that each lawyer will assume joint responsibility, do not give mere lip service to the joint responsibility option. Comment 7 to Rule 1.5 clarifies that joint responsibility requires both financial and ethical responsibility and contemplates that in this arrangement both attorneys should be available to the client throughout the representation and should remain knowledgeable about the subject matter of the representation.
            2. The client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing; and NOTE: While the Rule refers to “confirmation in writing”, as opposed to “signed by the client,” the better practice is to have the client sign. After all, there can be no better confirmation than the client’s signature.
            3. The total fee is reasonable.

BOTTOM LINE: The failure to follow these Rules is a virtual invitation to have your referral counsel explain to you in the future that while he or she would love to remit a part of the fee on a nice case back to you, the Rules simply won’t permit it. While the lack of an agreement in compliance with the Rules is not a bullet proof shield, it does place the referring attorney in a very compromised position. If you follow the suggestions set forth herein, you should avoid this situation. Oh yes, one parting note: the association of outside counsel should not serve to increase the overall fee charged to the client. If it does, it begs the question of the benefit to the client when the referral or association is presumably to secure the services of an attorney with some level of expertise who likely can handle the engagement without the aid of the associating counsel.

Ronnie Richter and Eric Bland

SC Supreme Court Issues Game Changer Opinion in Legal Malpractice – If you think Fabian only applies to trusts and estates lawyers, think again!

In 2009, our firm was unsuccessful in persuading our appellate court to extend the liability of trusts and estates lawyers to the intended beneficiaries of the instruments which they draft, as opposed to owing duties only to the Testator.  In Rydde v. Morris, 675 S.E.2d 431 (2009), the Plaintiff complained that because of the negligence of the lawyer in failing to prepare the Last Will and Testament in a timely manner consistent with the hand written directions provided to her by the Testator, Rydde and several other intended beneficiaries received nothing from a multi-million dollar estate that the Testator intended to gift to them.  Instead, an estranged aunt received an unexpected windfall.  Because of several other cases which seemed to indicate a softening of the privity requirement of a legal malpractice case, we felt that our Court was ready to expand the law of legal malpractice given the compelling facts of Rydde.  However, in addition to the lack of privity between the attorney and the intended beneficiaries, the Rydde case had another fatal flaw – there was never a Last Will and Testament.  Because South Carolina does not recognize Will substitutes, it was impossible to prove the decedent’s intent short of invading the attorney client privilege that existed between Morris and the Testator and our Court upheld the underlying dismissal of the Rydde case.  As a result, the Rydde case fell into a line of cases in South Carolina which held essentially that no duty is owed by an attorney to the intended beneficiaries of a testamentary instrument.  Even so, in dicta the Rydde court commented that it found persuasive the reasoning of other States, such as New Hampshire, Connecticut and Florida, all of which recognize a duty from an attorney to the intended beneficiary of a testamentary instrument “where it is shown that the testator’s intent has been defeated or diminished by negligence on the part of the attorney.”  So after Rydde, we were forced to wait and watch for a case in which the negligence of the attorney in preparing the testamentary instrument defeated or diminished its intent, thereby causing harm to the intended beneficiary.  Enter Fabian.

Dr. Fabian died on February 5, 2000, leaving an estate with an estimated value of $13,000,000.00.  He was survived by his wife, his brother and two nieces.  Dr. Fabian’s brother died just weeks after Dr. Fabian.  One of the nieces, Erika Fabian, had always been told that she would be provided for in Dr. Fabian’s estate.  Following his death, however, she received a letter explaining that she would not be receiving anything, along with two pages from Dr. Fabian’s trust.  In reviewing the instrument, Erika identified what she believed to be a drafting error which defeated her intended gift. In part, the Trust provided that “If my said brother, Eli Fabian, predeceases me, then one half of his share shall be distributed to his daughter, Miriam Fabian, … and the other half of his share shall be distributed to my niece, Erica (sic) Fabian.”  Because Dr. Fabian’s brother did not predecease him, the trigger in the Trust was never pulled and Erika received nothing.  Erika brought her claim for malpractice and sought to introduce extrinsic evidence to prove Dr. Fabian’s true intent, which was to included her in the Estate regardless of the timing of Eli Fabian’s death.  The Circuit Court dismissed the claim relying upon the long line of prior cases that stood for the proposition that no duty was owed to an intended beneficiary of a testamentary instrument.

In reviewing the matter, our Supreme Court first undertook a lengthy review of the traditional privity requirement in legal malpractice actions, noting in part that as early as the 1950’s, jurisdictions throughout the United States began to abandon strict privity as a requirement in legal malpractice.  The Court noted that the majority of jurisdictions around the Country now recognize a cause of action by a third-party beneficiary of a will when the lawyer’s error defeats or diminishes the testator’s intent.  In joining the majority of other States, our Court found:  “In sum, today we affirmatively recognize causes of action both in tort and in contract by a third-party beneficiary of an existing will or estate planning document against a lawyer whose drafting error defeats or diminishes the client’s intent.”  Fabian v. Lindsay, Opinion No. 27460 (October 29, 2014).

THE BIGGER PICTURE:  While it is clear that Fabian now extends liability to intended third party beneficiaries in a trust and estate setting, its implications are likely far broader.  The lynchpin of the Fabian decision was the abandonment of privity as an absolute requirement in legal malpractice claims.  Indeed, a large part of opinion itself explores the historical basis for privity, as well as its historical softening.  Why would the same principles not be equally applicable in other attorney client engagements?  Do we not routinely draft contracts that are intended to benefit non-client, third-parties?  Do we not recover money in cases where third parties have known lien rights?  If the representation of the attorney will confer a direct benefit (as opposed to an inferential or tangential benefit) on a known and identifiable third party, why would the logic that led to liability in Fabian not apply in the same fashion?  We think Fabian will have long and broad implications far beyond trusts and estates.

PRACTICE POINTER:  If it is not the intent to benefit third parties through a particular engagement, it would probably be beneficial to state the intent clearly in the letter of engagement or in the instrument itself. If you are an estate attorney that drafts wills and trusts and are concerned about the implications of Fabian on your practice and that it will open the floodgates of disinherited or frustrated beneficiaries who are not in privity with you and will sue, here is some good advice. After reviewing the prior will or trust and noticing that beneficiaries have been changed or distribution of assets has changed, include language in the new will or trust from the testator explaining the reason for the disinheritance or the change in the distribution of assets. This is just good practice.

Ronnie Richter and Eric Bland

Arbitration Clauses in Attorney Client Fee Agreements – Are They Enforceable?

Why would an attorney include a mandatory arbitration clause in the engagement agreement with a client?  The only answer and the obvious answer is that the attorney would see arbitration of a future dispute with his or her client as a more attractive option than litigation.  In this sense, the inclusion of the language seems to be inspired solely by the best interest of the attorney – not the client.  Moreover, Model Rule 1.8 prevents attorneys from entering into agreements with clients which prospectively limit the liability of the attorney (ie. forget about including language that your liability is limited to the amount of fees paid, etc.).  Having said that, there is great debate and a split of authority over the enforceability of arbitration clauses in attorney client fee contracts.  South Carolina remains among the many States who are silent on the subject matter.  If you are considering whether to include arbitration as a standard clause in your engagement letters, the following are a couple of guideposts for reference:

  1. The ABA Says Yes – Sort of:  “It is permissible under the Model Rules to include in a retainer agreement with a client a provision that requires the binding arbitration of disputes concerning fees and malpractice claims, provided that the client has been fully apprised of the advantages and disadvantages of arbitration and has given her informed consent to the inclusion of the arbitration provision in the retainer agreement.”  ABA Formal Opinion Number 02-425, [Emphasis Added].  Please note that while the ABA gives its pseudo-blessing, the proviso is significant and the ABA offers no guidance on what constitutes information sufficient to “fully apprize” the client of the advantage and disadvantages.  More importantly, what if an important “disadvantage” is omitted – say for example, sharing the cost of a three person arbitration panel!  You can appreciate that this is more shifting sand than solid rock.
  1. The DC Bar Says No – Kind of:  In opposing opinions, the DC Bar first concluded that arbitration clauses in fee agreements are permissible (DC Opinion 190), and later reversed itself for the following reason:  “In Summary, this Committee has come to the conclusion that it is unrealistic to expect lawyers to provide enough information about arbitration to a prospective client, particularly on a first visit, so that the client can make an informed consent to a mandatory arbitration provision.  It is equally unrealistic to conclude that limited disclosure coupled with the advice to seek independent counsel will cure the problem.  Therefore, we now conclude that Opinion 190 was incorrect in supposing that adequate disclosures concerning mandatory arbitration could be made to lay clients.” DC Opinion 211.  So then, DC astutely recognized that what the ABA said was permissible in providing full disclosure was in all practicality not possible.  Nevertheless, they did toss out one additional bone for those inclined:  “We see no problem, on the other hand, with proposing mandatory arbitration where a client has actual counsel from another lawyer, who has no conflict of interest, upon whom the client can rely to assess the complexities posed by arbitration.”  In short, full disclosure = impossible; separate counsel = permissible.

Again, there is a deep split of authority on the subject matter, but here’s what our scorecard looks like:

  1. No chance :  Just putting an arbitration clause in the fee agreement without disclosure and without separate counsel (especially to an unsophisticated client) seems to have little chance at survival.
  1. Some chance:  If you are brave enough (or foolish enough), it seems permissible to allow the client to make the election between arbitration or litigation ONLY AFTER the client has been provided with full disclosure of the risks and benefits of both.  Again, making full disclosure to a lay client appears a dicey proposition at best.
  1. Gold Standard:  If the client is separately represented for purposes of reviewing the engagement letter, it would appear that including the arbitration language is rock solid.  However, it is hard to imagine this coming into play outside of the context of a significant engagement on behalf of very sophisticated and well-heeled clients.

Ronnie Richter and Eric Bland

Smart Phone – Dumb Lawyer         

Is technology a blessing or a curse to the legal profession? The obvious answer (and the consummate lawyer answer) is “yes” – it is a little of both. In the wrong hands, technology is Smart_phone_possibilitiesnothing more than an opportunity for self-inflicted wounds. Here are a few “lawyer technology” DON’TS:

  1. Don’t record Judges: Our old buddy Jan Warner (God rest his soul) thought he was doing the right thing to investigate a client’s concern about judicial misconduct by smuggling a recording device into the Judge’s chambers and recording a conversation with the court. Our Supreme Court disagreed that a “dilemma” existed by his desire to document judicial misconduct. All such complaints or concerns should be made through proper channels – not through self-help investigations (Matter of Warner,286 S.C. 459, 335 S.E.2d 90 (1985). Warner’s old-school, Austin Power’s technology pales in comparison to the phones that we routinely carry into chambers. With that said, DON’T RECORD CONFERENCES IN CHAMBERS. For the matter, DON’T RECORD OTHER MEETINGS either without express permission. Even if it is lawful under the circumstances, there is a better than average chance that it will carry the appearance of impropriety (otherwise, it wouldn’t be a secret recording).
  1. Don’t forget that the use of technology leaves a permanent trail: In Indiana, attorney Sniadecki was suspended from the practice of law and directed to inform his clients. Instead of telling ALL of his clients, Mr. Sniadecki apparently thought that he could remain involved on the down low with a few of his better cases. When a concern was later expressed that he continued to practice law actively, a subsequent investigation was launched. Sniadecki admitted that he had remained in periodic contact with his former office. However, it was hard for him to respond to the allegation that he was practicing law when he had called his office from his cell phone 675 times! Yes Mr. Sniadecki – there is a record of the calls. In re Sniadecki, 924 N.E.2d 109, (2010).
  1. Don’t answer your phone in court: True story. A Minnesota lawyer was sanctioned in part for answering his phone in court AFTER being warned by the hearing referee not to answer the phone. The lawyer’s response: the hearing was unfair and he was trying to get his witnesses to the courthouse. In re Petition for Disciplinary Action Against Winter, 770 N.W.2d 463 (Minn.,2009).
  1. Don’t take selfies: Svitlana Sangary is a lawyer in California who is currently responding to a disciplinary action for having taken selfies – sort of. Ms. Sangary posted a number of photographs of herself with the rich and famous, including photos taken with President Obama, Bill Clinton, George Clooney, Kim Kardashian and others. The problem is that none of the pictures are real. Instead, she superimposed her face on the images to create the appearance that she ran in all the right circles. If this sounds like false advertising to you, then you would agree with the California State Bar who considered the photos “false, deceptive, and intended to confuse, deceive and mislead the public.” Sangary’s lawyer, Mark Geragos (yes, the Mark Geragos) responded on her behalf “if that kind of puffery is actionable by the state bar, your are going to put the entire membership out of business.” That may fly in California (don’t it), but the well-advised attorney in South Carolina should avoid it here.
  1. Don’t friend jurors on social media:   There are too many opinions, advisories and cases to list here. The clear dividing line on this one seems to be the following: If a potential juror has made information publically available, it is acceptable to view it. However, a lawyer cannot “friend” a potential juror (or get somebody else to do it for them) for the purpose of learning information that the juror has not made publically available. The latter is tampering and it is a crime. Don’t do it.

There are many more Do’s and Don’ts to follow. Next time, I promise to accompany the blog with a photograph of me with Anthony Hopkins.

Eric Bland and Ronnie Richter

Hey Smart*@%! Did You Write That *&%#$ Email?

Electronic communications are the literary equivalents to a pie in the face – funny to some, not so funny to others – it is after all in the eye of the beholder.  If you are one of those lawyers who should have key locks on either side of the “Send” button on your smart phone, the you may want to take heed of on onslaught of recent disciplinary decisions in which the courts seem to fall pretty uniformly in the “not so funny” category when reviewing lawyer-generated electronic communications.  Lest you believe there is a line between communications initiated in your personal capacity, as opposed to those sent in a professional capacity, the cases would indicate that the line falls somewhere between ill-defined and non-existent from the court’s point of view.  To the contrary, it would appear that the courts are pretty uniform in their expectation that ALL lawyer communications remain within the happy confines of civility.  The following is a brief exemplars of things better left unsaid and the sanctions that they warranted:

  1. One year suspension:  For attorney’s conduct adversely reflecting on fitness to practice law in sending text messages suggesting that a student law clerk perform sexual favors for him, indicating that her continued employment depended on her compliance with his demands, repeatedly insisting that he was not joking, and pressuring her to travel out of state with him even after being rebuffed.  Go figure – telling a law clerk that “if you show up at 11 you know what’s expected” falls in the “not funny” basket.  This snarky attorney was found to have caused harm to the dignity and reputation of legal profession as a whole in violation of Rule 8.4(h).  Lake Cty Bar Assn. v. Mismas, 11 N.E.3d 1180 (Ohio, 2014).
  1. Three month suspension:  For an attorney who sent “sarcastic and sophomoric” comments to opposing counsel such as:  “Did you get beat up in school a lot?  Because you whine like a little girl.”  “Why don’t you grow a pair.”  And my personal favorite:  “This will acknowledge receipt of your numerous Emails, faxes and letters … In response thereto, Bla Bla Bla Bla Bla Bla.”  In the Matter of Stolz, New Jersey Disciplinary Review Board, DBR 13-331 (2014).
  1. Four month suspension:  For attorney’s misconduct while serving as county district attorney in sending series of text messages that attempted to persuade a domestic abuse crime victim and witness to enter into sexual relationship with him while he was prosecuting the perpetrator of the domestic crime, in telling a social worker who was a witness in a termination of parental rights case that attorney was prosecuting that attorney would not “cum” in her mouth and that he wanted trial to be over because he was leaving on trip to Las Vegas, where he could have “big boobed women serve [him] drinks,” and in voicing his approval to another social worker during a court proceeding of a reporter’s “big beautiful breasts.”  The Wisconsin Supreme Court properly determined that these and other comments were “sufficiently boorish” enough to constitute sanctionable misconduct.  In re Disciplinary Proceedings against Kratz, 851 N.W.2d 219 (Wisconsin, 2014).
  1. One-year suspension:  For attorney whose conduct, sending sexually explicit text messages to a client he was representing in divorce case (including a nude of himself), violated rules prohibiting representation if a lawyer’s personal interests will materially limit his ability to carry out appropriate action for the client, prohibiting a lawyer from soliciting or engaging in sexual activity with a client unless a consensual sexual relationship existed prior to the client-lawyer relationship, and prohibiting conduct that adversely reflects on the lawyer’s fitness to practice law. Rules of Prof.Conduct, Rules 1.7(a)(2), 1.8(j), 8.4(h).  Discilinary Counsel v. Detweiler, 989 N.E.2d 41 (Ohio, 2013).

There is so much more that could be said on the subject, but I’ve got an email that I am dying to pop off to an opposing counsel right now – on second thought, maybe I’ll type it on carbon paper first, mail it to myself via snail mail, read it for my own personal amusement and properly dispose of it.

Ronnie Richter and Eric Bland