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Using an Employer’s Email May Undermine the Attorney-Client Privilege.
One of the oldest principles of legal ethics is that confidential communications between attorney and client are privileged. This privilege ensures full and frank communications between attorneys and their clients, without concern over disclosure to third parties. But online communications can complicate the privilege analysis. The Court of Appeals recently addressed one of these complications...
A Split Supreme Court Declines to Consider the New Limit on Expert Witness Immunity
In January 2019, the Michigan Court of Appeals issued Estate of Voutsaras v Bender, a published opinion recognizing a new limit on the witness-immunity doctrine. As explained in our earlier blog post, the Court held, as a matter of first impression, that licensed professionals retained as expert witnesses or consultants aren’t absolutely immune from malpractice...
Lawyer Mental Wellness in the COVID-19 Era and Beyond
Lawyers aren’t immune from the mental-health implications of the COVID-19 crisis. As social distancing has continued, the isolating practice of remote work has become the new normal. So it’s critical that we, as lawyers, are mindful of our well-being and the well-being of our colleagues, family members, and friends. Below are several strategies and resources...
Lawyers Leading and Succeeding in a Remote-Working World
For many of us, working remotely was merely an occasional convenience—a way of catching up on work in the evening or on the weekend without having to step foot in the office. Unfortunately, the current state of affairs has moved our law practices to basement alcoves, dining-room tables, or spare-bedroom desks. This disruption can shake...
To Post or Not to Post? Best Practices for Attorneys Using Social Media
You just won a major legal battle on behalf of your client. You can’t wait to post about your victory on Facebook, LinkedIn, Twitter, and Instagram. You start typing up a long narrative of your win on your social-media pages. But wait, you think, are there any ethical rules I should consider before posting? Ethical...
Supreme Court Narrowly Holds that Discovery Rule Doesn’t Apply to FDCPA Claims but Leaves the Door Open to Application of Equitable Tolling
The Fair Debt Collection Practices Act contains a one-year statute of limitations, which runs from “the date on which the violation occurs.” While straightforward as written, federal circuits have been split on whether the limitation period could be tolled by the discovery rule. The Sixth Circuit has repeatedly danced around the issue, without ruling one...
Collection Letters May Cause Anxiety, but They Don’t Necessarily Open the Courthouse Door for Litigants, Sixth Circuit Rules
The Fair Debt Collection Practices Act was originally passed to curb abusive and deceptive conduct on the part of debt collectors. But in practice, the FDCPA has become a tool used by enterprising consumer-credit attorneys to collect legal fees for technical violations, even when no actual harm occurred. That’s because the FDCPA mandates statutory damages,...
Seven New Year’s Resolutions for the Consummate Pro
Happy New Year!  As you contemplate the year ahead and assess your professional goals for 2020, here are seven New Year’s resolutions to consider. Navigate social media with style Engagement agreements should be reviewed and reevaluated Work out your succession plan Your mental and physical health are paramount Educate yourself to maintain technological competency Assess...
Technological-Competence Requirement Comes to Michigan
You’ve probably seen some technical pitfalls. Maybe a lawyer unwittingly hit the “reply all” button. Or perhaps a lawyer failed to realize that his electronic redaction of privileged communication could be undone by a simple “copy and paste.” Others have noticed, too. In 2012, the American Bar Association amended Model Rule of Professional Conduct 1.1...
Arbitration Clauses in Retainer Agreements: Ethical Violation or Valid Contract Term?
Many retainer agreements contain an arbitration clause for the resolution of disputes that arise from the attorney-client relationship. The Michigan State Bar Ethics Committee takes the position that arbitration clauses, in general, are unethical. Michigan courts, on the other hand, find arbitration clauses to be valid, enforceable, and compatible with the public-policy preference for dispute...
Extortion or Legitimate Strategy? Know the Legal Limits and Consequences of Settlement Demands
Attorneys routinely use settlement demands as a method to resolve cases without the time commitment and cost associated with protracted litigation. But at a certain point, the language of a settlement demand may cross the line from mere negotiation strategy into illegal extortion. This is particularly true when the settlement demand includes a threat of...
When Do Legal-Malpractice Claims Subsume Breach-Of-Fiduciary-Duty Claims?
Most lawsuits against attorneys involve tort claims that fall under the legal-malpractice umbrella. Yet clients often allege another tort: breach of fiduciary duty. The Court of Appeals has recognized that a breach-of-fiduciary-duty claim may be separate and distinct from a legal-malpractice claim. But at the same time, the Court of Appeals has also recognized that...
Less is More: The Art of Withdrawing From Representing a Client
In litigation, there are limited circumstances that require an attorney to withdraw from representation of a client. Barring these circumstances, most of which commonly involve illegal or fraudulent conduct on the part of the client, the attorney may still find herself seeking termination of the attorney-client relationship. With the permission of the court, the attorney...
Protection Against Retaliation: Civil-Liability Immunity and Lawyer-Guardian ad Litems
There are some saints in the legal profession. Attorneys who accept appointments to represent the best interests of a minor in child-protective proceedings are among them. Their work isn’t lucrative, and the stakes are exceptionally high. Collins Einhorn attorneys recently prevailed in an immunity defense of such an attorney―establishing new, controlling precedent in the process....
Sometimes the Best Defense is a Good Offense—Even on Appeal
Malpractice defendants often find themselves with a lot of company. When a transaction seems to go awry, aggrieved plaintiffs may sue every professional involved—accountants, lawyers, consultants, and their respective firms. With multiple defendants, there’s a possibility that the court will issue multiple orders resolving the plaintiff’s claims. For example, the court might grant summary disposition...
Deal or No Deal: But-For Causation in Transactional Legal-Malpractice Cases
Under Michigan law, the (former) client in a legal-malpractice action must prove that the attorney actually caused her injury. That means the client must prove that she would’ve achieved a better result “but for” the attorney’s alleged malpractice. The concept of but-for causation is most prevalent in the context of litigation, where the attorney’s alleged...
Doing Your Homework: Recent Opinions Clarify that Failure to Research Isn’t Protected by the Attorney-Judgment Rule
In the seminal case of Simko v Blake, the Michigan Supreme Court defined the parameters of what’s become known as the “attorney-judgment rule” in the legal-malpractice context. The Court held that an attorney isn’t liable for “mere errors in judgment” if the attorney had a good faith, honest belief that his or her acts or...
FDCPA’s General Provisions Don’t Apply to Lenders or Attorneys Seeking Foreclosure
Previously, under the Sixth Circuit’s decision in Glazer v. Chase Home Financial LLC, Michigan lenders and attorneys who sought non-judicial foreclosures were treated like any other “debt collector” under the FDCPA. This meant that even if the lender or attorney sent an initial communication required by statute, that communication also had to contain the “mini-Miranda”...
Hearing Panel Dismisses Complaint Based on Discipline in Tribal Court
Ordinarily, a Michigan attorney who is disciplined in another state or federal jurisdiction will face discipline in Michigan, too. Michigan attorneys also have a duty to report discipline in other state or federal jurisdictions. But what happens when the other jurisdiction imposing discipline is a tribal court—a judicial body of one of America’s sovereign tribes?...
We Don’t Do Windows: Excluding Collateral Matters from the Scope of Representation
A lawyer’s retention agreement has two general purposes.  It memorializes what the lawyer has advised the client regarding the objectives of the representation, the way those objectives will be pursued, and the anticipated costs.  But it also protects the lawyer against potential malpractice claims.  A carefully-drafted agreement can be a lethal arrow in a lawyer’s...
Sixth Circuit Loosens Concrete-Injury Standard in FDCPA “Mini-Miranda” Cases
Fair Debt Collection Practices Act; Attorneys Class-action attorneys often use the Fair Debt Collection Practices Act (FDCPA) as a tool to turn minor, technical violations into substantial settlements. Chief among these tools are omissions of the “Notice of Debt” requirements—statements so ubiquitous that they’ve been nicknamed “Mini-Miranda” notices. Under the FDCPA, a debt collector’s initial...
The Witness-Immunity Doctrine isn’t Limitless when it Comes to Expert Testimony
Attorneys retained to provide expert support or testimony aren’t immune from malpractice claims under the witness-immunity doctrine simply because their services included or intended to include expert testimony. That’s the gist of the Michigan Court of Appeals’ decision in Voutsaras v Bender, one of the first published decisions this year. That legal-malpractice case arose out...
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