It used to be that lawyers got sued very rarely, but that’s gone out the window, said Shelagh McCarthy Savino, assistant vice president of claims for insurer Berkley Select LLC, during a panel discussion on trends in insurance coverage for legal professional liability claims.
“The clients that you think are not going to sue you will in fact sue you,” she said.
Significance of Decision
This is yet another case where a court has held that attorneys are absolutely immune from liability to non-client third-parties for conduct which occurred within the scope of their representation.
The availability of electronic databases makes it easy for a court or opposing counsel to identify unattributed sources and argue that the lawyer who drafted the brief attempted to deliberately deceive the court. And while copying source material without attribution in litigation filings is not per se a violation of a lawyers ethical obligations, many courts disapprove of extensive copying in briefs. (New York City Bar Formal Opinion 2018-3).
The departure of a lawyer from a firm often creates a highly-charged, emotional atmosphere which can make it difficult for those involved to appropriately consider their responsibilities to the clients and to each other. ABA Formal Opinion 489, released in December 2019 by the ABA Standing Committee on Ethics and Professional Responsibility, contains the latest ABA direction regarding ethical obligations during this difficult time.
Promptness and thoroughness are twin policies underpinning this rule. Unfortunately, many lawyers, in their quest for strict adherence or simply as a matter of convenience, fall into the bad habit of copying clients on email communications to opposing counsel and third parties. This raises a number of ethical issues.