Ethics Watch
| Jurisdiction | United States,Federal |
| Citation | Vol. 32 No. 4 Pg. 12 |
| Pages | 12 |
| Publication year | 2021 |
Blown Statutes — What to Do?
By Nathan M. Crystal
What is your worst nightmare as a lawyer? Surely a blown statute of limitations is at or near the top of the list. What should you do if this nightmare becomes a reality, particularly during the COVID period when normal office procedures are disrupted?
Prevention
The first step is to wake up from the nightmare and realize, despite the rapid heartbeat and your sweat-filled pajamas, that this situation is only a nightmare and you still have the opportunity to prevent it from happening. What should you do?
Intake procedures are an important part of the process. The firm's Prospective Client Questionnaire should ask for the date of the accident or occurrence (a breach of contract, for example) that is the basis of the client's claim. The Questionnaire should specify that (1) completion of the Questionnaire does not result in the formation of an attorney-client relationship and (2) an attorney-client relationship is formed only when the client and the firm sign an engagement agreement. This procedure gives the firm time to check for conflicts of interest and determine if the claim is barred by the applicable statute of limitations. If the accident or occurrence took place in another jurisdiction, an analysis of the foreseeable jurisdictions whose law could control the matter is necessary as part of the decision whether to take the case. See Eadie v. Krause, 381 S.C. 55, 671 S.E.2d 389 (Ct. App. 2008) (affirming trial court's decision to grant summary judgment for defendant attorney because it was not foreseeable that attorney's decision to pursue worker's compensation claim in South Carolina would be treated by the Tennessee Supreme Court as a binding election of remedies barring a claim for worker's compensation in Tennessee).
If the firm decides not to take the case, it should send the prospective client a nonengagement communication, which should specify that the firm has decided not to accept representation in the matter, that the decision of the firm not to take the case should not be read as a conclusion that the case lacks merit, that other firms may be available to handle the case, and that the client should act promptly to seek representation from another firm because the client's claim may be barred by an applicable statute of limitations. Failure to make a nonengagement communication can result in malpractice liability even to a prospective client. In Togstad v. Vesely, Otto, Miller & O'Keefe, 291 N.W.2d 686 (Minn, 1980), the defendant law firm was held liable for malpractice in rejecting a claim by a prospective client and her husband for medical malpractice. The firm had failed to send the prospective clients a nonengagement letter. As a result, questions of fact existed as to what the firm had told the prospective clients about the case, and the jury could reasonably find that the firm had failed to do sufficient investigation and research to be able to competently advise the plaintiff...
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