United States: Learning From 2017 And Looking Forward To 2018

The end of the year is an ideal time for attorneys to look back on the recent developments in legal malpractice law that may impact their practices for years to come. It is also a good time for attorneys to look forward to prepare for emerging issues likely to arise in the new year.

Here is a year-end review of some of the lessons learned from the trending topics published in this space in 2017, as well as some tips on the emerging issues that attorneys may be talking about in 2018.

Hot Topics of 2017

Litigation Funding

While third-party litigation funding is a relatively new development in the practice of law, litigators and their clients are becoming more accepting of this as a tool to support their initiatives. Because such funding became even more commonplace in 2017, litigants can expect that courts may be more likely to address the growing use of third-party funding in discovery orders or other reviews.

Attorneys considering pursuing litigation funding for their matters can be better prepared for the new year by monitoring court decisions regarding the validity of third-party finance agreements and the scope of privilege applied to those third parties. Further, litigants who have not used litigation funding in the past may consider whether doing so in the future meets their litigation and financial goals.

Client Confidences at the Border

Another hot issue in 2017 was the potential tension between border security and attorneys' obligations to maintain client confidences. Indeed, the rise in global law practices has brought a corresponding increase in international travel for attorneys.

Some bars have opined that attorneys traveling across borders are generally obligated to make "reasonable efforts" to protect confidential data. See N.Y. Bar Prof'l Ethics Comm., Formal Opinion 2017-5 (July 25, 2017). Knowing the potential risks, attorneys may consider whether they can leave electronic devices at home or remove protected information on the devices prior to international travel. If those solutions are impractical, attorneys can review whether password protection and encryption of confidential files is possible. In the event that international travel results in the search of any confidential, privileged information, attorneys can expressly assert any claim of privilege during the search and inform any affected clients as soon as practicable.

The Role of Local Counsel

It is increasingly common that attorneys with national practices will work with local counsel to keep them apprised of the procedural requirements of the jurisdiction, among other tasks. The State Bar of Georgia has opined that local counsel cannot hide behind lead counsel in the event of ethical misconduct: "If local counsel engages in any unethical conduct, it is no defense to a violation that the conduct was suggested, initiated, or required by lead counsel." Formal Advisory Opinion 05-10.

As attorneys continue to expand their practices beyond their own locales, reviewing the role and responsibilities of local counsel will likely continue to be an issue.

Emerging Issues for 2018

Attorney Impairment

In recent years, legal organizations from the ABA to local bar associations have placed increased focus on the epidemic of lawyers impaired by mental health and substance abuse.

There are precautionary measures that attorneys and firms can consider to tackle attorney impairment head on. The goal is for attorneys and firms to create an environment that prioritizes supporting their colleagues suffering from substance abuse or mental illness, promoting health and wellbeing, and serving client needs.

The data suggest that this epidemic is not slowing down. Thus, attorneys' and firms' focus on this issue will likely continue in 2018.

Attorney Liability Relating to Failed Settlements

An evolving trend in legal malpractice claims that is expected to continue through 2018 involves lawyers receiving claims related to their recommendations about whether to settle a matter. These claims typically involve a client second-guessing a pre-trial settlement opportunity after an unfavorable ruling or verdict.

Attorneys anticipating such second-guessing can look for opportunities to take extra steps to document — in writing — the decisions made with regard to whether to accept a settlement offer or demand, including the attorney's estimated likelihood of success of the matter, appraised settlement value, the recommendations made, and the client's ultimate decision. Indeed, a well-documented file may help an attorney defend themselves from a claim pursuant to the professional judgment rule.

Risks of Waiver for Work Product and Privilege

Attorneys and clients rely on the sanctity of the attorney-client privilege and the work product doctrine to ensure the free and protected flow of communications and advice. However, in recent years, litigants are increasingly attacking work product and privilege protections in a variety of circumstances. The current climate serves as a reminder for attorneys that work product and privilege protections are not absolute and can be vulnerable.

For instance, in S.E.C. v. Herrera, No. 17-20301, 2017 WL 6041750 (S.D. Fla. Dec. 5, 2017), a Florida district court held that a law firm waived work product protection for interview notes and memoranda when it orally disclosed certain information to the SEC during a client's internal investigation. Because the SEC was a potentially adverse party, the court held that the voluntary pre-suit disclosure acted as waiver of the protection even for other parties seeking the information. The court stopped short, however, of finding waiver for documents not mentioned or summarized during the verbal disclosures. Practitioners can expect that issues like these will continue to be litigated over the coming year.

The end of the year presents attorneys with a prime opportunity to look back and forward to evaluate ways to protect their practices. The lessons learned in 2017 can have long-reaching impacts in 2018 and beyond.

Dentons is the world's first polycentric global law firm. A top 20 firm on the Acritas 2015 Global Elite Brand Index, the Firm is committed to challenging the status quo in delivering consistent and uncompromising quality and value in new and inventive ways. Driven to provide clients a competitive edge, and connected to the communities where its clients want to do business, Dentons knows that understanding local cultures is crucial to successfully completing a deal, resolving a dispute or solving a business challenge. Now the world's largest law firm, Dentons' global team builds agile, tailored solutions to meet the local, national and global needs of private and public clients of any size in more than 125 locations serving 50-plus countries. www.dentons.com.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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