I recently wrote about California's reaction to issues involved with attorneys and clients in California on my Mind (January 2018). California has legislated that attorneys must meet their clients. In a conversation with Californians last fall, they related their suspicion that some law firms there are using agents or investigators to respond to phone calls, visit, and sign up potential clients. They believed that such contracts then lead to the filing of claims or complaints, which proceed in the California courts or administrative workers' compensation process. Some derisively refer to these agents as "cappers."
In California, the injured worker cannot be a client until she or he "has met with or personally spoken with an attorney licensed by the State Bar of California who is regularly employed by the firm by which the employee will be represented, and has been advised of his or her rights . . . ." While the Californians I spoke to interpret that a requiring an in-person meeting, others suggest that "or personally spoken with" perhaps could be satisfied with a phone call?
Within days of posting California on my Mind (January 2018), I heard an advertisement locally for a law firm. This ad informed that clients are entitled to meet with their attorney, and alleged that potentially cases could be prepared or even settled without significant attorney involvement or interaction with the client. This ad suggested that people who had entered into settlements might consider contacting the advertising firm to discuss legal action to recover attorney fees previously paid by someone who was party to such a settlement. There was also an underlying tone of the ad that made me think it was suggesting such a party might have a claim for legal malpractice.
That is an interesting proposition. Imagine attorneys seeking to recover collected attorney fees from other law firms. Imagine attorneys suing other attorneys for malpractice based upon how a case ended in a settlement. Certainly, legal malpractice complaints are raised in a variety of contexts each year. The American Bar Association (ABA) in 2010 published results of two surveys regarding "most common" complaints that ended in malpractice claims. It includes both American and Canadian data. The results are interesting. For whatever reason, the ABA did not include "poor communication" in its analysis, but that accounted for eight percent of Canadian complaints. Perhaps if the attorney never meets with the client, that could be "poor communication?"
The advertisement's reminder of attorneys also reminded me of In Re 73 Engle-Related Cases, decided on February 8, 2018, by Florida's First District Court in case number 1D16-2651. Engle was a case litigated in the Florida Supreme Court "almost ten years ago." That case had been a "class action" in which multiple plaintiffs were seeking recovery for damages related to use of tobacco. But, the Court "decertified" that case, which required those various plaintiffs to "file individual lawsuits within one year."
Prior to that deadline, two law firms in Jacksonville, Florida "filed many Engle-derivative lawsuits," including the 73 cases involved in the In Re 73 Engle decision. These particular 73 lawsuits were identified, however, because they were "on behalf of persons who were already deceased." It is possible for the estate of someone to file a lawsuit, or for a survivor to file a lawsuit, but a deceased person can't file a lawsuit (like the old saw "dead men tell no tales," similarly dead men cannot maintain lawsuits). And, the court noted, these "complaints falsely alleged that the plaintiffs were living." Before they filed, had the lawyers "met with or personally spoken with" the plaintiffs?
The court explained that "most of these plaintiffs had been dead more than a decade." Having learned of that in 2015, the attorneys attempted in 2016 to "amend the pleadings to substitute the survivors and estates" as plaintiffs, "if any." In other words, the attorneys wanted to correct the fact that their clients were deceased, and instead substitute those people's estates or family members as the "named" plaintiffs in those cases. The trial court denied the requests and instead dismissed the cases with prejudice. The plaintiffs appealed.
The appellate court explained, "the lawsuits filed here were nullities because a dead person cannot file and maintain a lawsuit." To proceed, "a cause of action must be conducted by or opposed by a ‘person’ recognized under the laws of this state.” Only live people or existing entities such as a corporation or an estate can sue or be sued. As the named plaintiffs were deceased, "plaintiffs' counsel had no authority to file" these cases in the first instance. The court noted that perhaps the outcome would be different had the plaintiffs been alive when the cases were filed and had later passed. In that instance, the "personal representative," the estate, could then be substituted after the person passed. But that opportunity is a "reasonable opportunity," meaning it would need to be done in a timely manner.
The court noted that "before filing suit, plaintiffs' counsel had ethical obligations to confirm the allegations it made and to receive authorization from clients to file the cases." Failing that obligation, counsel instead "alleged patently false things." And, therefore, the court affirmed the dismissal of the suits. The cases were not about workers' compensation. But, the lessons are as poignant there. There have been instances in which a workers' compensation petition was filed naming a deceased worker as a "claimant." There have been instances in which a worker passed while litigating a workers' compensation claim and counsel did not amend to substitute a "personal representative" or someone entitled to statutory death benefits.
There are several lessons in In Re Engle. Counsel should speak with their clients before filing claims, remain in contact with clients throughout litigation, and immediately file to substitute survivors or estate or both in the unfortunate situation where a client dies during litigation. Not doing so might be grounds for one of the various malpractice bases in the ABA poll. Failure could lead to dismissal as it did in In Re Engle, and thus no chance of recovery for those otherwise entitled (estate or survivors). The duty to communicate with the client, before and during the litigation cannot be stressed enough. And that means attorney communication, not agents or functionaries. Attorneys should communicate frequently and clearly with their clients.
