Attorney Claims

Publication year1987
Pages1837
CitationVol. 16 No. 10 Pg. 1837
16 Colo.Law. 1837
Colorado Lawyer
1987.

1987, October, Pg. 1837. Attorney Claims




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Vol. 16, No. 10, Pg. 1837

Attorney Claims

Column Editor's Note:

The legal malpractice claims and matters described in this column are the result of actual claims which have been turned in, nationwide, to the sponsored legal malpractice insurer of the Colorado Bar Association, Professional Liability Underwriting Managers, Inc. It is hoped that the following claim summaries will be of benefit to Colorado practitioners in helping them to recognize potential legal malpractice claims and, after such recognition has been achieved, to avoid the same.


Claim #1

Alleged Error or Omission:

The plaintiff accused the attorney of prematurely releasing funds from an escrow account.


Summary of Claim:

The attorney represented a client who was selling, in his own name, a parcel of real estate owned by his mother. Assurances were made by the client to the buyer and the attorney that title to the property would soon be conveyed to him by his mother. The attorney, a close friend of his client, acted as escrow agent, holding $50,000. The sale proceeded.

At a meeting attended by the attorney, the buyer and the client seller, it was requested that the attorney issue a $35,000 check from the escrow account to the alleged seller, with the understanding that same would not be cashed until title had closed.

Not too surprisingly, the check was cashed by the alleged seller, who resided outside of the area. In addition, the attorney signed a promissory note to the buyer for the sum of $35,000.

Since the alleged seller did not hold title to the property or receive title from his mother, no closing to the property took place.


How Claim Might Have Been Avoided:

More caution and less trust on the part of the attorney would have avoided this claim. Since the attorney was aware that the alleged seller was not the title holder to the subject property, the attorney should have refused to act as escrow agent until such time as the alleged seller was in fact the title owner.

Outright rejection of the "seller's" request for issuance of a check from the escrow funds should have been the attorney's response. Reliance upon his friend's assurance that the draft would merely be held by him is insufficient. When appropriate, the funds can be released in an expeditious fashion so there is little benefit and great disadvantage to issuing a draft from escrow funds prematurely.


Claim #2

Alleged Error or Omission:

The plaintiff accused the attorney of missing service of suit papers within the statutory time period.


Summary of Claim:

The plaintiff retained the attorney to represent her in a personal injury matter arising from a trip and fall in a friend's home. The attorney claims that the plaintiff was reluctant to sue her friend. Therefore, the complaint was filed with the court within the statute of limitations but not served within the three-year time period. The attorney had changed offices and moved out of state allegedly without properly notifying the plaintiff and securing substitute counsel.


How Claim Might Have Been Avoided:

The attorney should have documented the file regarding the plaintiff's reluctance to sue her friend and should have sent a letter confirming same. When the attorney moved, a letter was sent to all clients, but there was not proper follow-up to ensure that the plaintiff was adequately protected. All important letters should be sent certified mail or another method to ensure receipt and proper notice.

Also, there was a claim that the plaintiff moved and did not receive the notice from




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the attorney. Clients should be advised to inform counsel of address changes, and counsel should periodically contact the client (on dormant cases) to guard against the disappearing client

Claim #3

Alleged Error or Omission:

The plaintiff accused the attorney of a conflict of interest.


Summary of Claim:

...

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