In Connecticut, communications between attorneys and clients that are linked to the giving of legal advice are protected by the attorney-client privilege.
The privilege protects the giving of information to the lawyer to enable counsel to give sound and informed advice. While the attorney-client privilege can be waived by the client if you are not careful, the privilege is yours to waive or not waive. The privilege is not your lawyer’s to waive without your authority.
In fact, with limited exceptions, attorneys have an ethical duty not to reveal any information relating to their representation of a client,, whether privileged or not, unless the client gives informed consent or the disclosure is impliedly authorized in order to carry out the representation. A lawyer’s duty to protect client information extends beyond attorney-client privileged communications, and applies not only to matters communicated in confidence by the client to their lawyer, but also to all information relating to the representation, whatever its source.
Pursuant to Executive Order 9O issued by the Governor of Connecticut on December 2nd, all time requirements related to Offers of Compromise, which have been suspended by the state since March 9, 2020, now terminate no later than December 15, 2020.
Connecticut, which unlike many states provides no prejudgment interest protection to its injured citizens, is also not known to have a very strong Offer of Compromise statute. However, Connecticut’s Offer of Compromise laws do provide the victims of personal injuries with some protection from bad faith insurance company tactics. Unfortunately, those Offer of Compromise protections have been suspended since the CORONA-19 Pandemic began. For the past 9 months, insurance companies have refused to pay fair or just compensation to victims of negligence, even in cases of clear liability, because Connecticut’s courts were closed to jury trial, and because Offers of Compromise by injured parties could be ignored due to the suspension of the law. Finally, as of December 15th, that situation has been rectified by the Governor’s order reinstating the effective time requirements of Connecticut’s Offer of Compromise statute. Ironically, the Governor actually allowed the Connecticut Judicial Branch to act sooner to end the Offer of Compromise moratorium, but the judiciary never acted.
Imagine driving on the road in a state where automobile insurance is not required. Would you feel safe? Of course not. Mandatory automobile insurance laws protect citizens in case of an accident. Because, accidents will happen.
But, what about your lawyer? Does he or she carry insurance in case an accident happens?
This week, United States District Court for the Eastern District of Pennsylvania had to order a lawyer’s insurance company to cover the legal malpractice claim of a client. Even though the insurance company had provided the lawyer with legal malpractice insurance, the insurance company tried to dispute its obligation to cover a client’s claim when the lawyer negligently handled her medical malpractice case. Fortunately, the court ordered the insurance company to honor the terms of the legal malpractice insurance policy it sold.
However, did you know that, in most states, lawyers are not even required to carry legal malpractice insurance?
Everyone, including professionals, can make a mistake. Mistakes by lawyers can be very costly to their client. The time to find out if your lawyer is insured or not is when you hire them, and not after you discover they made a costly mistake.
Be a smart consumer. Before you hire a lawyer, ask the questions: Are you insured? If so, why by what company and to what extent? What is the lawyer’s self-insured retention amount (i.e., their uninsured deductible)? Lawyers are professionals, and professionals appreciate a client’s legitimate insurance concerns. If a lawyer does not have insurance, or is reluctant to disclose what insurance they have, it’s time to find a different professional!
Hire lawyers who protect their clients with adequate insurance.
The Massachusetts judiciary has announced that jury trials may be commenced in Massachusetts state courts beginning October 23, 2020, at which time courts shall resume in-person trials on a limited basis. In Phase 1 of the Massachusetts’ plan, trials will be to juries of six (with alternates) rather than the normal 12 jurors, conducted in a small number of locations.
The lack of any plan to return to jury trials since the COVID court shutdown has adversely impacted the rights of Connecticut’s citizens. Stated plainly, some civil litigants and insurance companies have openly and brazenly taken advantage of the closure of our courts to engage in bad faith settlement tactics, refusing to even consider making any reasonable settlement offers in even clear liability cases.
But, in the wake of recent concern expressed over Connecticut’s lack of a plan to return jury to jury trials, Connecticut Chief Justice, Richard A. Robinson, has just announced that Connecticut will resume jury trials in November and will summon potential jurors for these trials beginning in September.
Chief Justice Robinson wrote:
“[O]ur system of justice cannot live up to its constitutional mandates of providing fairness and justice without a jury trial system in place. Jury trials are the backbone of our system of justice.”
The Chief Justice also suggested that Connecticut will also leave open the possibility of virtual jury trials, given the COVID-19 environment.
Chief Justice Robinson reminded us that, “jury trials allow a democracy to breathe, live and thrive,” and concluded:
“Pandemic or not, we need civic-minded citizens to step forward and perform the critical public duty of serving on a jury — even more so during these difficult times.”
Well said, well done and not a minute too soon.
On July 31, 2020, the Massachusetts Jury Management Advisory Committee issued its report on the Commonwealth’s plan to reopen its court’s for jury trials which have been suspended due to the COVID-19 pandemic. The plan calls for a phased approach, with test jury trials starting almost immediately in a few courthouses, progressing to conducting as many trials as possible in all courthouses with certain precautions taken as long as the pandemic lasts.
As the Report makes clear, jury trials have not only been long regarded as “the principal bulwark of our liberties,” but also that the right to a jury trial is an express right provided for in both the Sixth and Seventh Amendments to the U. S. Constitution. “The jury [is] ‘the guardian of the public trust and the voice of the community’s values,’ is an integral part of the due process protections guaranteed by the Bill of Rights, and helps to sustain democratic values . . . There is no such thing as zero risk; our objective must be to reduce the risk to a level that is acceptable in light of the importance of the jury trial function.” No truer words on the subject could be spoken, and the Baystate (like Maine, Vermont and New Hampshire) is taking action.
But what about the Constitution State?
In Connecticut, all jury trials have been postponed indefinitely since March 12, 2020. While most states have postponed bringing in juries until later in the summer, some have begun to conduct jury trials, and the vast majority have issued plans to resume jury trials. But, not Connecticut. Connecticut is one of the few jurisdictions in the county to have yet even formulated a plan to return the right of trial by jury to its citizens. In the meantime, the back log of legal cases grows every day, and Connecticut residents continued to be denied a constitutional right. The barbershops, hair salons and tattoo parlors are back in business. It’s time to address how we are going to put the “guardians of the public trust” back to work. Can we hear a plan, please?
A Maryland Court decision this week reminds us all that victims of legal malpractice need to act fast. The Statute of Limitations is often the biggest hurdle any victim of legal malpractice faces. Often, clients don’t know that legal malpractice has even occurred until it’s too late. In the recent Maryland case, a legal malpractice lawsuit was thrown out of court because the victim did not bring the claim within the applicable statute of limitations. The victim argued that he was delayed in discovering the legal malpractice because it was hidden from him by his former lawyer. However, the Maryland court pointed out that the client admitted that, “had regular arguments” with his lawyer, that his lawyer “ignored him” when he asked about the status of his case, and that “a cold chill ran down his spine” in court when he realized his lawyer had to ask the opposing lawyer questions about the Rules of Civil Procedure. For these reasons, the Maryland court held that the client should have brought his legal malpractice claim sooner. If your lawyer’s professional services give you a “Cold Chill Down Your Spine,,” you are wise to consult a legal malpractice lawyer right away.
The word “frivolous” means “of little weight or importance”. In the law, “frivolous” equates to “lacking merit.” We hear a lot of generalized arguments today from people who throw around the word “frivolous” without saying what they really mean, or, more importantly, disclosing why they are saying it.
Insurance companies market that they protect their premium paying customers from “frivolous claims”. But aren’t meritless claims the easiest to defend? Why not talk about whether you protect your insureds from meritorious claims? Aren’t those the ones that an insured should be worried about being protected from?
Opponents of Governmental Qualified Immunity reform bemoan that our legislators are “opening the doors to frivolous Lawsuits”. Why don’t they ever mention that qualified immunity laws have also closed the courthouse door to citizens who have meritorious claims?
Lobbyists for certain specially protected classes of businesses and professionals argue that frivolous court cases drive up the costs for their goods and services. What about the cost to consumers caused by the unsafe practices by businesses and professionals who do not need to worry about the consequences of negligent or careless behavior because they have legal protections that are not afforded to the average citizen?
People of Integrity say what they mean.
When people use the phrase, “frivolous lawsuits” what they actually mean is “all lawsuits.” Insurance is needed to protect against the risk of all lawsuits, most especially meritorious claims where significant indemnity will have to be paid; qualified immunity laws bar from the courthouse even plaintiffs with meritorious causes of action; and those certain special classes of businesses and professionals which enjoy legal protections not afforded to the average citizen, enjoy that protection from all claims, including claims where their liability is clear and the damages they caused is devastating.
But, no one sells insurance by talking about protecting careless persons; no one lobbies for immunity laws by pointing out that those laws bar citizens from receiving compensation when they are victimized by negligent public employees, and no specially protected business or profession wants to admit that what they most enjoy is the protection from their big mistakes, and not claims that are without merit to begin with.
As President John Adams said, along with our representative form of government, “trial by jury [is] the heart and lungs of liberty.” Ordinary citizens who sit on juries are quite good at figuring out what lawsuits have merit, and which ones do not. If you have sat on a jury, you know this.
When you hear “frivolous lawsuit,” remember, what they are not telling you is that they equate “all lawsuits” with “frivolous lawsuits.” They aren’t saying what they mean. What they mean is, we don’t like our civil justice system; we want special protections under the system even when we commit a wrong; and we don’t want to have the same level of accountability as the average citizen.
Everyone has their point of view. Just have some integrity, and say what you mean.
The United States District Court for the Southern District of New York took up a case last week involving a claim of legal malpractice involving a lawyer who recommended that his client invest its money in a particular project. The lawyer, who held himself out as an investment and financial legal expert, reportedly convinced his client to redirect its money into a particular investment project. Unfortunately, according to the client, the lawyer’s “glowing recommendation” and projections regarding the investment were “based upon nothing but lies and fiction,” and the lawyer had done “no meaningful analysis” of the project he had recommended. Rather, the client claims that it later learned that the lawyer’s recommendation was based solely upon the lawyer’s financial self-interest related to the same business project. Legal ethics that lawyers are required to follow place restrictions on lawyers advising clients on business interests where the lawyer himself has an interest. Such conflicts of interest by lawyers are a leading cause of legal malpractice. Nevertheless, it happens. Be wary of “lies and fiction!”
Legal malpractice is the failure of a lawyer to meet the applicable standard of care for lawyers. Malpractice is more than a mistake was made. A mistake by a lawyer may rise to the level of malpractice, but it’s safe to say not every mistake by any professional arises to the level of professional malpractice. If your lawyer or some other professional has made a mistake, talking to a legal malpractice lawyer can help you determine if that mistake gives rise to a legal malpractice case or not. Wise clients use resources available to them.
