With this post, Legal Malpractice Law Review inaugurates a new section called "Brain Teasers".
All too often, common transactions we come across give rise to complicated legal malpractice (and ethics) issues. With "Brain Teasers" we challenge you to see the issues and discuss how you would approach their resolution. Feel free to post and share with all of us your comments.
If you have a "Brain Teaser" to share, please email it to us at: firstname.lastname@example.org. Make sure to use fictitious names. And we’ll post it so that everyone can benefit.
And now, Bill Freivogel, shares with us the Inaugural "Brain Teaser":
Eighteen months ago Tom represented the borrower in a loan transaction. Tom’s client is now in deep trouble and may be headed for bankruptcy court. One of the bankruptcy lawyers in the firm, Bob, while reviewing the loan transaction, notices that the remedies opinion in Tom’s closing opinion did not contain a critical provision dealing with bankruptcy. Bob goes to Tom and asks whether that omission was intentional. In looking at his notes Tom quickly realizes that his assistant had misinterpreted one of his edits. This could further complicate life for Tom’s already shaky client and for Tom’s law firm. Tom goes to his firm’s general counsel, Barbara and asks for guidance. Barbara pulls in another partner, Jerry, for a second opinion about what should have been done.
While the above scenario raises many issues, here are a few. First, what, if anything, must Tom tell his client? The trickier question is when must Tom tell his client. Second, are any of the communications that have just occurred within Tom’s law firm among Tom, Bob, Bill, Barbara, and Jerry, protected by the attorney-client privilege? This second issue will almost certainly arise if either Tom’s client or the lender sues Tom and his law firm for the mistake. Last, when, if ever, should the law firm notify its malpractice carrier or broker. What should the notice say?
Posted in: Brain Teasers