Highlighted Case

Background

Estate of law firm's former client brought legal malpractice action against firm and attorneys, alleging that firm represented subsequent client in action against estate, while continuing to represent estate. The Court of Common Pleas, Hamilton County, No. A-0701616, entered orders requiring discovery of documents and records arising from firm's representation of subsequent client. Firm filed interlocutory appeal.

Holdings

The Court of Appeals held that:
(1) portions of fee agreements were privileged under the work-product doctrine;
(2) portions of law firm's billing records were privileged under the work-product doctrine;
(3) communications between law firm and subsequent client's relatives who were not also firm's clients were not protected from discovery by attorney-client privilege;
(4) communications between law firm and subsequent client's relatives, sent to relatives as a courtesy, were not privileged from discovery under work product doctrine; and
(5) portions of multiple-representation agreements between law firm and client's relatives were privileged under the work-product doctrine.

Affirmed in part, reversed in part, and remanded.

Schedule

The Legal Malpractice & Risk Management Conference goal is to continue to identify, review and analyze decisions rendered over the last year. While remaining committed to that goal, this year’s format is a shift in panel focus, emphasizing the legal issues, and fitting the current decisions into that context. Thereby, we expect to provide a more comprehensive examination of the legal principles as they are developing in the various jurisdictions.

To view a speaker's biography and photo, simply click on the blue linked speaker names.

Tuesday, March 2, 2010
6:00 – 8:00 p.m.	Welcome Reception Westin Chicago River North Hotel, Ember Grille Room Sponsored by CRSTL Solutions and LegalBill
Wednesday, March 3, 2010
8:00 – 9:00 a.m.	Registration & Continental Breakfast Sponsored by InOutsource
9:00 – 9:20 a.m.	The Year in Review – Introduction Speaker: Ronald E. Mallen
Legal Malpractice Sessions Commence
9:20 – 10:20 a.m.	Standing to Sue, Privity and Duty of Disclosure Arising from the frequent management changes in corporate America is the important question of ownership or control of the cause of action for attorney negligence. This panel will discuss this topic as well as a counsel's duty to disclose suspicions of one’s own negligence. Panel Moderator: Frances M. O’Meara Speaker: John W. Sheller Speaker: William J. Wernz
10:20 – 11:15 a.m.	Significant Developments in Litigating Legal Malpractice Claims Experienced trial lawyers will analyze recent decisions concerning expert witnesses, a client’s failure to maintain files and the treatment of defenses that would have been affirmative in the underlying cause, among other significant decisions. With respect to expert witnesses, the panel will discuss when assumptive facts are not enough, and what qualifications are necessary to testify to professional responsibility issues. Topics covered will also include when the client’s failure to maintain files can be a defense, and how to treat defenses that would have been affirmative in the underlying case. Panel Moderator: James I. Sullivan Speaker: Pamela A. Bresnahan Speaker: Richard H. Donohue
11:15 – 11:30 a.m.	Break
11:30 – 12:30 p.m.	What's Your Little Secret? They Want to Know Although the law regarding the attorney-client privilege and the work product doctrine is fairly well-established, new developments and issues continue to be litigated with respect to the nature and extent of the protection afforded by the courts concerning confidential communications. The disputed issues involve not only attorneys and clients, but also non-clients, third-parties and the government. For example, if an attorney confers with the firm's in-house counsel about professional obligations concerning an error that the attorney may have made or a potential malpractice claim, are such communications privileged? If documents are produced by a party to the government pursuant to a subpoena and threat of criminal prosecution and a confidentiality agreement is reached, are such documents discoverable in subsequent litigation? When and how does a waiver occur concerning privileged communications or work product? The panel will explore these questions and more. Panel Moderator: Terrence P. McAvoy Speaker: J. Richard Supple Jr. Speaker: Nancy Jane Marshall
12:30 – 1:45 p.m.	Conference Lunch Sponsored by IntApp
1:45 – 2:45 p.m.	Judgmental Immunity – A Modern Look at the Legal Profession’s Oldest Defense Recent decisions have been handed down involving when the defense is one of law or fact, the use concerning unsettled propositions and tactical decisions, and the relationship to causation and fault. Several cases illustrate these applications in the context of whether an action has to be filed in bankruptcy or federal court, and failure to challenge a punitive damage claim. This panel of experienced litigators will discuss and analyze these decisions as well as emerging cases. Panel Moderator: Michael E. O’Neill Speaker: David J. Beck Speaker: Kevin S. Rosen
2:45 – 3:45 p.m.	Insurance Coverage Update: The Year in Review – Prior Knowledge Redux and the Definition of Professional Services The prior knowledge limitation once again figures prominently in the professional liability coverage decisions. A number of courts are chipping away at the objective standard and are relying on factors previously considered only by courts using a subjective standard. This last year courts have also addressed whether a declaratory judgment action brought to determine a prior knowledge coverage defense can be litigated before the legal malpractice case itself, or whether the coverage action must be stayed until the conclusion of the malpractice case. The panel of coverage lawyers and claims professionals will discuss these cases as well as cases where courts interpreted the intentional acts exclusion, and set forth standards for determining if multiple claims are "related acts" for purposes of establishing policy limits. Also analyzed will be the recent spate of decisions in which courts defined the phrase "professional services" to determine whether the policy covered allegations of kick-back schemes, claims by non-clients and claims against lawyers arising from overdrafts in their accounts after being ensnared in Internet fraud schemes. Panel Moderator: David A. Grossbaum Speaker: Julianne Splain Speaker: Jeff Bossart
3:45 – 4:00 p.m.	Break
4:00 – 4:45 p.m.	2009 LMRM Case Update and Statutory Causes of Action The panel will discuss subsequent developments in cases addressed during last year's conference and will provide an update on important cases involving statutory liabilities. Speaker: David Schultz Speaker: Thomas P. McGarry
4:45 – 5:30 p.m.	Stump the Panel Members of the audience have an opportunity to engage in a “Q&A” dialogue with the panelists as they attempt to answer questions concerning legal malpractice or risk management. Take your best shot on your complex issues – everything is fair game. Panel Moderator: Peter R. Jarvis
6:30 p.m.	Conference Reception & Dinner Brasserie Jo, Chicago Sponsored by CHUBB
Thursday, March 4, 2010
8:00 – 9:00 a.m.	Continental Breakfast Sponsored by Elite
Legal Malpractice / Risk Management Cross-Over Sessions Commence
9:00 – 10:15 a.m.	The Insurance Marketplace and Considerations Insurance industry professionals will present our annual survey of the LPL insurance marketplace, and explore how the 2009 economy impacted insurance rates, availability and coverages. Have the predictions made by the 2009 panel come to fruition, or is the market’s perfect storm still lurking in the cycle? The panel will also survey claims trends and address ways in which law firms may be able to obtain added value from their premium dollars. Panel Moderator: Victoria L. Orze Speaker: Sally Field Speaker: Adam D. Sharaf
10:15 – 10:30 a.m.	Break
10:30 – 11:30 a.m.	Who is the Client and Standing to Sue – Successor Entities, Affiliates and Subsidiaries A developing area of the law concerns a law firm's duties to an entity that is the successor to or related in some structural manner to the client. The issue may arise in the context of disqualification or whether there is standing to sue. The panel will examine whether the attorney-client relationship survives these changes and in what form. Does the entity have status as a “client” (current or former) for purposes of legal malpractice claims, conflicts of interest, confidentiality and the attorney-client privilege? Panel Moderator: Allison D. Rhodes Speaker: William P. Schuman Speaker: Andrea L. Zopp
11:30 – 12:30 p.m.	Advance Conflict Waivers, Screening and How to Do It What makes some advance conflicts waivers succeed while others fail? What, if anything, is the effect of the 2009 amendment to the ABA Model Rules which allows screening when lawyers move from one private firm to another? And what should or must be included to have an effective screen, whether under the ABA Model Rules or by private agreement? Learn the answers to these and other real-world questions from hands-on practitioners who regularly address them. There is both art and science here, and both can be learned. Panel Moderator: Peter R. Jarvis Speaker: H. Robert Fiebach Speaker: Martin S. Checov Speaker: D. Ronald Ryland
12:30 – 1:45 p.m.	Keynote Luncheon Crisis Management Speaker: Andrew D. Gilman, President, CommCore Consulting Group Sponsored by Lockton
Risk Management Sessions Commence
1:45 – 3:15 p.m.	The General Counsel Forum Back again this year, we present a forum for law firm general counsel and risk management lawyers to explore topics of interest specific to their role and responsibilities. Issues covered by this panel of general counsel will address topics and questions submitted in advance by conference attendees and advisors. Attendees of this session will also be encouraged to introduce topics for general discussion. Panel Moderator: Thomas L. Browne Speaker: Hope A. Comisky Speaker: Edward J. Zulkey
3:15 – 3:30 p.m.	Break
3:30 – 4:30 p.m.	Suits for Fees / Mandatory Fee Arbitration Practical ways in which law firms can avoid claims arising out of fee disputes and still collect fees will be addressed by this panel. They will cover the pros and cons of alternative fee dispute resolution, as well as the practical consequences of choosing arbitration over other forms of resolving fee disputes and otherwise. Panel Moderator: Thomas P. Sukowicz Speaker: Brant C. Weidner Speaker: Joel D. Adler
Friday, March 5, 2010
8:00 – 9:00 a.m.	Continental Breakfast
9:00 – 10:00 a.m.	Risk Management Considerations in Restructuring and Winding-Up Law Firms The “great recession” has led to the demise of several venerable law firms – and more may follow. The ensuing disputes among partners, former partners, associates and staff, creditors, clients – and even the firms to which the lawyers have moved – have demonstrated the complexity of the legal issues that arise in these situations. The lack of clear guidance for management as well as individual lawyers confronted with the demise of their professional home exacerbates the problems and prolongs the process of resolution. Among the issues that this panel will address are: what and to whom are partners liable (and who is considered a “partner”); limited liability – is it working; management liability and insurance; employment issues; and risk management implications (preparing for the worst). Panel Moderator: Anthony E. Davis Speaker: Tom H. Luetkemeyer Speaker: James Rhyner Speaker: Thomas A. Willoughby
10:00 – 11:00 a.m.	Managing Client and Law Firm Data, and What Gives When Client and Firm Policies Conflict? Discovery requests, including federal disclosure requirements, raise questions about the need to produce certain types of electronic documents and communications. The casual use of intra-firm emails can create potentially embarrassing, and, sometimes, damaging evidence. These concerns warrant examination of law firm policies and practices. The speakers will discuss how firms can minimize their risks and how to respond to such requests. Panel Moderator: Michael P. Downey Speaker: Beth E. Chiaiese Speaker: Robert D. Owen
11:00 – 12:00 p.m.	On the Horizon – The Slow Motion Revolution The law firm model that was so successful over the last three decades is under attack. Billing arrangements, leverage, staffing, and law firm structure are all threatened. This panel will identify and assess some of the changes that progressive firms are already putting into effect, and will assess the risk management implications of the new and evolving models of law practice. Panel Moderator: Anthony E. Davis Speaker: William T. Garcia Speaker: Susan J. Hackett