Missing court deadlines and legal malpractice

Careful Who You Hitch Your Wagon To

A law firm has just installed the latest and greatest case management program. The attorneys and paralegals diligently attended all of the training classes required to master the new software program. All client and case mater information was uploaded into the new program. However, when inputting data, one of the paralegals entered the wrong date for a court hearing on the opposing party's motion for summary judgment. The opposing party won its motion by default because the law firm failed to appear on behalf of its client. What ethical issues, if any, are raised by this scenario?

Recently the above question was posed to us In a Computer Law class here at Columbus State. In this class we review the various software applications utilized by law firms and other legal organizations.   naturally questions arise regarding the risks and ethics associated  with such use. This scenario prompted me to research the legal industry’s disciplinary process and respond thusly:

Although an honest mistake, this clerical error is a blatant  act of malpractice. Why? Because it worked to the detriment of the client and violated one of the industries’ principle edicts: Competence. The American Bar Association’s Model Rules of Professional Conduct, both  its Preamble and Preface address quality of representation, with the latter clearly stating its continued goal of assuring the “highest standards of professional competence and ethical conduct.” (American Bar Association 2013).

Missing a filing deadline- whatever the reason-  has serious consequences, some of which are irreversible; others not. For example, say in a personal injury claim where a statute limits the time within which a person can file a claim- this individual, or group of individuals, might forever be barred from pursuing their legal matter, or in the case of a bankruptcy- it could be discharged if the attorney fails to file documents within the specified time period, as was the case with one Jennifer Hassall when her attorney Beauregard Maximillon Harvey failed to respond to the bankruptcy trustee’s motion to deny a discharge Toledo Bar Assn. v. Harvey, 141 Ohio St.3d 346, 2014-Ohio-3675. Harvey was charged with violating Ohio’s Rules of Professional Conduct Rule 1:1 Competence. Indeed a perusal of our own high court’s website reveals a plethora of cases throughout all of Ohio’s counties where attorneys are either charged with, or have been sanctioned for, this and other infractions. According to the Ohio Supreme Court’s Board of Professional Conduct, attorney malpractice claims were up last year by 33% over the previous year.

And while such misconduct can, and sometimes does, result  in punishment for the legal practitioner or firm ( reprimands, suspensions, fines, or forfeiture of legal fees),  the outcome of such behavior can have  dire consequences for the client. In one instance, a widow lost her home to a sheriff’s sale when the attorney representing her failed to file a timely answer in a foreclosure action Komorowski v. John P. Hildebrand Co., L.P.A., 2015-Ohio-1295. Initially the trial court granted summary judgment for the defendant, but this decision was reversed by the 8^th District Court of Appeals, Cuyahoga County . In another case, a group of employees suing their former employer for wrongful termination, had their complaint dismissed after the attorney missed a filing deadline; in this instance, the disciplinary board conditioned the attorney’s reinstatement upon a full restitution to this group of clients Dayton Bar Assn. v. Scaccia, 141 Ohio St.3d 35, 2014-Ohio-4278.

So concerned is the American Bar Association with the issue of malpractice that, through its Young Lawyer’s Division it frequently includes programming designed to inform new attorneys  about the perils of unethical conduct and avoidance of the same. In a presentation entitled “Avoiding the Summons…”, held in the Spring of 2014, it outlined the top 10 behaviors constituting malpractice, breaking each down by percentages; coming in 2^nd at 23% was “missing deadlines.”

These are just a few of the many instances of ethical misconduct found at the Ohio Supreme Court’s Board of Professional Conduct’s website http://www.supremecourtofohio.gov/Boards/BOC/default.aspx there are infinite more.  Promising though is the American Bar Association’s efforts toward education and prevention- together with local bar associations it strives to make inroads into reducing, if not completely eliminating careless acts and/or wanton behavior leading to malpractice.

In essence what I learned was that- while there were no specific cases, or at least none that I discovered, centering on clerical or data entry errors as the impetus behind ethics charges- missing a deadline, regardless of reason, is grounds for claims of malpractice, for it falls below the duty of care expected of legal practitioners; moreover, it can have detrimental effects on clients, and in turn, on the community at large.

An interesting aside is that while researching this issue, it occurred to me that this is great information for the consumer; yet, as I mulled it over-, it is equally important information for the paralegal looking for work, as it offers a glimpse into the abilities and integrity of potential employers. With an estimated lawyer population of some 39,000 here in Ohio- according to the ABA’s most recent statistics- we must be careful, to borrow a pre-industrial phrase, about who we hitch our wagons to.

References: 

Center for Professional Responsibility. Model Rules of Professional Conduct.  Chicago: American Bar Association, 2015. Book.

CourtNewsOhio TV. “An Increase in Legal Misconduct Complaints.”  Video clip.  YouTube. YouTube, 17 February 2015. Web. 20 Oct. 2015

Beougher, Stephanie. Cases “Dayton Lawyer’s License Suspended.” Abstract. CNO: a service of The Supreme Court of Ohio & Ohio Government Telecommunications . 131982. October Issue (2014): 3. Court News Ohio. Web. 20 Oct. 2015

Trevas, Dan. Cases “Eight District: Legal Malpractice Cases Allowed to Continue.” Abstract. CNO: a service of The Supreme Court of Ohio & Ohio Government Telecommunications . 1295_1305. April Issue (2015): 3-5. Court News Ohio. 20 Oct. 2015

Lessell, Melissa & Murphy, J. Logan. “Avoiding the Summons: Top 10 Legal Malpractice Pitfalls & Ethical Traps (Ethics CLE).” 2014 Spring Conference. Pittsburgh, PA. 16 May 2014. Chicago. American Bar Association.  Print

American Bar Association. “ABA National Lawyer Population Survey 2005- 2015”. Lawyer demographics table. 2015. Chicago. American Bar Association. PDF file.