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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.

In Connecticut, legal malpractice claims are claims that your lawyer did or failed to do something which did not meet the standard of care for lawyers while serving as YOUR lawyer. Generally, the lawsuit is brought against your own lawyer, not someone else’s lawyer. There are occasions under the law, however, where other individuals besides the actual client can sue a lawyer for legal malpractice, for example a beneficiary in a will or trust may have a right to sue a lawyer who was hired by someone else to create the will or trust and did it wrong. While there are legal claims that may be brought against an opposing party and/or his/her lawyer (for example, a claim for vexatious litigation), those are not legal malpractice claims. If you have questions about your rights, contact an attorney who handles legal malpractice claims.

A client hires Lawyer 1, who gives incorrect legal advice. The client then hires Lawyer 2 who gives the same incorrect advice. Lawyer 2 files suit for the client, but the client’s case is thrown out because of the incorrect legal advice. Who is to blame? Lawyer 1, Lawyer 2, or both lawyers? While you would think it’s both lawyers, according to a June 2020 decision by the United States Court of Appeals for the District of Columbia, the answer may be just Lawyer 2. In the recent federal appeals court decision, Lawyer 1 was held not liable for legal malpractice for advising his client incorrectly on the statute of limitations to bring his case, because the client subsequently hired Lawyer 2, who also misconstrued the statute of limitations, and then did not file the client’s suit on time. According to the Court, under those circumstances, the client’s loss case was the responsibility of Lawyer 2 only, because regardless of the Lawyer 1’s mistake, Lawyer 2 was responsible for, and had the opportunity to, independently and correctly file the client’s case before the statute of limitations ran out.

The Connecticut Appellate Court released today a decision highlighting the prohibitions of the Rule 1.8 of the Connecticut Rules of Professional Conduct for Attorneys. The attorney who represented his client in various legal matters including the purchase of real estate. The lawyer then introduced the client to one of his law partners, who arranged for the client to loan money from the real estate transaction to the law firm. The statewide grievance committee found the lawyer violated Rule 1.8 of the ethics code. Rule 1.8 provides protection to clients by limiting the circumstances when lawyers may engage in business transactions with clients. In this instance, the lawyer was found to have violated Rule 1.8 by his “failure to advice [his client] in writing that [the client] should consider independent counsel in connection with the loan of money to the law firm.” On appeal, the Appellate Court upheld the decision to impose a sanction against the attorney.

In Connecticut, like most jurisdictions, the time in which to bring a legal malpractice action is often unfairly short. Connecticut’s 3 year statute of limitations means that ordinarily, the victim of legal malpractice has only three years from their lawyer’s negligent act or omission in which to file a legal malpractice action. The unfairness comes from the fact that unlike other legal torts, victims of legal malpractice often do not realize a mistake has been made by their lawyer until years, and sometimes decades, later. Your time to file a legal malpractice lawsuit might very well expire before you even know your lawyer did something wrong. Unlike a car accident, where you know immediately that you were injured due to someone else’s legal wrong, victims of legal malpractice rely upon the professional expertise of their lawyers, and only figure out that they have a problem when they either hire another attorney, or later suffer the tragic economic results of the legal malpractice. Under certain circumstances, statute of limitations can be tolled or suspended in legal malpractice cases in Connecticut, but only so long as the lawyer who committed the legal malpractice is still representing you, and never longer than it took you to realize that the malpractice occurred. If you suspect that your lawyer has committed legal malpractice, you need to act fast to protect your rights.

Legal Industry predictions are that a dramatic rise is coming in legal malpractice insurance premiums for lawyers. Why now? Historically, high volumes of legal malpractice claims are associated with public crisis. With the public health crisis caused by COVID-19, laws and regulations are changing at an extremely fast pace. While many attorneys have handled the changes well, these changes mean more opportunities for lawyers to make professional errors, especially among those less diligent in keeping up with developments in the law and with the standard of practice during the pandemic. As a result, insurance companies are getting ready to gear up with increased premiums to help pay for the wave of legal malpractice claims that are coming.

In May, the Insurance Commissioner of California made the following observation:

“Some insurers and other persons engaged in the business of insurance in this state are unfairly taking advantage of the COVD-19 crisis and providing unjustifiably low settlement offers knowing financial need is high and recourse to the civil court system is the state is currently severely limited.”

The Insurance Commissioner went on to warn that anyone who engaged in such practices was violating the law, and would be subject to penalties.

It’s not just California that is experiencing such unfair settlement practices. Insurers in every state, including Connecticut, who lower or refuse to make settlement offers with full knowledge that it citizens are unable to access the court system during a pandemic are committing unfair insurance practices.

At the moment, only strong leadership from state government can stop these immoral practices, at least until such time as our courts return to allowing its citizens to avail themselves of the civil justice system to protect them from such abuses. One insurance commissioner has demonstrated such leadership. Who will be next?

With our courts coming back on line to hear motions and conduct certain other business virtually, there is hope that our vital civil justice system is slowly on the road to COVID-19 recovery. However, the Constitutional Right to a Jury Trial presently remains in suspension. Understandably, in these times of Social Distancing, there is concern about bringing citizens together to serve on juries. But, with courts planning no jury trials for at least the remainder of 2020, for the first time in our history the constitutional right to a jury trial is on hold. Can you imagine rights guaranteed under the Bill of Rights suspended for a period of 9 months to a year? In some places, where the parties are in agreement, litigants are attempting to try their cases to “Virtual Juries.” While novel ideas to afford citizens a way to resolve their cases should be applauded, such alternative resolution mechanisms require agreement by all parties, and are not a substitute for the loss of a constitutional right. In most instances, the delay in the right to have your legal case tried to a jury equates to a denial of justice. In some jurisdiction, such as Massachusetts, the legislature had the foresight to build in a protection against such delay, as victims of civil wrongs are entitled to recover prejudgment interest on their damages. However, in most jurisdictions, such as Connecticut, there is no automatic prejudgment interest on civil damages. Prejudgment interest statutes protect citizens from the ill effects of court delay. In the wake of the unprecedented COVID-19 related suspension of the right to trial by jury, it may be time to for every jurisdiction to enact prejudgment interest laws to help protect citizens from delays in civil justice.

With court closures and the cancellation or postponement of jury trials for the indefinite future, some insurance companies appear to be ready and willing to still resolve personal injury cases. In difficult economic times, this may sound like welcome news to injured plaintiffs who want their case to continue towards resolution. But beware! There is a danger that defendants/insurance companies are attempting to bottom feed. That is, they are looking to see if injured persons will settle their cases for less than their reasonable settlement value during these difficult times. Decisions to settle your case are based upon many factors, but the one constant is that the decision to settle is the client’s to make, and your lawyer’s job is to see that you are reasonably informed on the important factors that go into your decision. Be an informed consumer when it comes to your personal injury case. Make sure your attorney has taken steps to properly value your case, and explained this to you. If your lawyer has advised you to resolve your case for less than its reasonable settlement value during the COVID-19 Pandemic, make sure you get answers to why. Remember, lawyers have an ethical obligation to explain matters to you so you can make informed decisions.

A victim of legal malpractice recently lost her case in Hartford Superior Court because she did not prove that her lawyer’s professional negligence caused her harm. The plaintiff was injured when she tripped and fell and brought suit against a local municipality alleging that her accident was caused by a defect in the road which caused her to trip. Her case against the municipality was thrown out of court, however, because her personal injury lawyer made a procedural mistake, and failed to provide the required written notice of the claim to the municipality. As a result, the plaintiff hired another attorney and filed a legal malpractice law suit against her first lawyer. On February 21, 2020, the plaintiff lost her legal malpractice case when the Hartford Superior Court ruled that, although the plaintiff shown that her prior lawyer had committed malpractice, the plaintiff did not prove that she would have won her case against the municipality. The plaintiff’s legal malpractice lawyer argued that he did not need to show that the plaintiff would have won her case against the municipality, but merely that the plaintiff lost the opportunity to pursue her case against the municipality because of her first lawyer’s malpractice. However, as the court said in dismissing the legal malpractice case, “that is not the law.” Victims of legal malpractice are reminded that when they get to trial, they and their new counsel must be ready to prove not only legal malpractice, but also to prove that they would have prevailed in the underlying case if not for the legal malpractice.