Ethics


(D.Md. 2002), aff ’d, 55 Fed. Appx. 667, 2003 U.S. App. LEXIS 2335 (4th Cir. 2003);Westport Ins. Corp. v. Albert, 2005 U.S. Dist. LEXIS 17477 (D.Md. 2005), aff ’d, 208 Fed. Appx. 222, 2006 U.S. App. LEXIS 29946 (4th Cir. 2006). In addition to jeopardizing insurance coverage, attorneys’ errors in managing statutes


failure to promptly report of


limitations or deadlines can also put attorneys at a disadvantage because it delays the opportunity to have the matter reviewed by defense counsel assigned by the insurance carrier. Such a review by an attorney with a different perspective can sometimes result in “claim repair,” i.e., defense counsel assigned by the insurance carrier may develop a viable plan to avoid the consequences of the error. If the existence of the error and the plan to avoid its consequences are both promptly disclosed to the client, moreover, a professional liability claim against the attorney may be avoided entirely or the attorney may have a dispositive defense if the client refuses to allow “claim repair.” Norton provides an example of an opportunity for potential


“claim repair” that was lost. Te automobile accident occurred on July 16, 2002. Te law firm recognized its error in failing to file suit in Pennsylvania within two years of the date of the accident by February 2005, as became apparent during the subsequent legal malpractice lawsuit when the law firm’s internal memorandum dated February 17, 2005 was produced. Norton, 437 F.Supp.2d at 400. In February 2005, five months remained on Maryland’s three year statute of limitations. Id. Instead of promptly disclosing the error in managing the Pennsylvania statute of limitations, the law firm first considered and then abandoned a plan to file a plea in Pennsylvania in which the law firm asserted that the reason the client did not timely pursue her claim in Pennsylvania was that she mistakenly believed the accident to have occurred in Maryland. Id. Approximately three months later, the client, concerned that the law firm had made no progress with her case, consulted with another law firm. Norton, 437 F.Supp.2d at 401. During the initial consultation with the second law firm, the client was advised of the lapsed Pennsylvania statute of limitations, and less than a month later filed a legal malpractice claim seeking $750,000 in damages. Id. Approximately 10 weeks still remained on the Maryland statute of limitations when the defendant law firm’s representation was terminated.Norton, 437 F.Supp.2d at 403. It was only after the legal malpractice lawsuit was filed,


however, that defense counsel assigned by the insurance carrier became involved in the case and “vigorously investigated whether [the client’s] cause of action actually was time-barred” while she was represented by the defendant law firm or whether the lawsuit could have been timely filed in Maryland for approximately five months after the defendant law firm initially discovered its error and for 10 weeks after successor counsel began to represent the client. Norton, 437 F.Supp.2d at 401. By then it was too late for “claim repair.”


Trial Reporter / Winter 2012 39


Conclusion Failure to manage statutes of limitations and deadlines is a


major cause of professional liability and disciplinary complaints against attorneys. Attorneys should establish and implement law practice management systems designed to prevent administrative errors in managing statutes of limitations and deadlines. Attorneys should also accurately identify the types of causes of actions or claims available to clients early in the representation and then should ensure that they know the applicable statutes of limitations or deadlines.


If attorneys “screw up,” prompt


disclosure to clients and to the attorneys’ insurance carriers is required for a number of reasons.


Biography Stephan Y. Brennan graduated from the University of


Maryland School of Law, and began to practice law, in 1992. Mr. Brennan’s practice emphasizes representation of attorneys in defense of professional liability civil cases and attorney discipline cases. His practice also includes appellate litigation, insurance coverage disputes and litigation, and commercial and business litigation, in state and federal courts in Maryland and the District of Columbia. Mr. Brennan is a shareholder at Iliff, Meredith, Wildberger & Brennan, P.C. in Pasadena, Maryland.


National Legal Research Group CHARLOTTESVILLE, VIRGINIA


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