<b><i>Practice Tip:</i></b> Personal Injury Cases

Editor's Note: While this article is sometimes specific to Pennsylvania, the pitfalls still apply to other states.

Lawyers representing clients in personal injury claims face numerous ethical pitfalls every time they look for, evaluate, accept and handle a new case. Nonetheless, honesty, common sense and a solid understanding of the Rules of Professional Conduct should protect most of us from making mistakes.

Finding the Case

Your practice type typically dictates how you find your cases. Some come from referrals from other lawyers, prior clients and current clients; some from advertising. Common forms of advertising include television, firm websites, social media, radio, billboards and print media. Advertising often provides great exposure to potential clients. The Rules of Professional Conduct, of course, permit advertising via Rule 7.2. So, if the case does not come through a referral or word-of-mouth, how can you actively look for new cases under the rules?

Simply stated, do not mislead. Throughout the various subsections of 7.2, language mandates disclosure of various facts affecting the veracity of any advertisement. For instance, if you advertise on TV using a paid actor portraying a client, you need to disclose that fact. Similarly, if you concentrate in a specific area of the law, for example, motor vehicle crash-worthiness cases, and you advertise that “concentration” on your firm's website, the rules certainly permit you to do so, provided you are truly competent to handle those cases “from intake to trial.” If, however, your firm handles those cases only up to the point of formal litigation, you must disclose the existence of any referral or co-counsel relationship. To avoid problems when advertising, simple honesty and full disclosure in the ad should satisfy Rule 7.2.

Handling the Case from A to Z

If you have a law degree, passed the bar and have some experience handling injury cases, does that qualify you to handle every type of injury case regardless of the complexity? Rule 1.1 defines “competence” as possessing the “legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” This sounds simple; however, true competence in today's practice requires the ability to handle every aspect of the case from start to finish. For instance, assume you commonly handle low-impact, soft-tissue injury cases. Then one day a new client retains you to handle a tractor-trailer case with permanent injuries. Assume that you handle the negotiations with the insurance adjuster perfectly, and ultimately reach a seven-figure settlement without litigation. As part of the claim, the client's health insurer sends you notice of its subrogation claim, and at settlement your staff subtracts several thousand dollars from the client's proceeds and pays it to the carrier. However, you never researched the lien issue and failed to realize it was invalid under Pennsylvania and/or federal law. This certainly could be problematic and could result in a malpractice claim. Thus, “competence” also requires recognizing collateral issues and diligently working to resolve them in a reasonably prudent manner.

Conflicts of Interest

Conflicts arise in various forms in injury cases. Often, someone other than the client, like a family member or loved one, will contact you initially to discuss the claim. Sometimes, two people injured by the same product or in the same accident will want you to represent their interests. Non-injured spouses will have collateral causes of action, as will parents of injured children. These potential pitfalls can cause major ethical problems if not handled properly. Fortunately, a proper understanding of the relevant Rule of Professional Conduct, the case law interpreting the issue and full disclosure to the client can usually prevent problems.

Any time an injury lawyer faces a potential conflict, he or she should consult Rules 1.7 and 1.8. A very common scenario involves representation of multiple plaintiffs or claimants, typically in motor vehicle claims. Generally speaking, Rule 1.8(g) prohibits representation of more than one person involved in the same accident. For example, assume the driver of a car hurt by another tortfeasor retains you and at some point thereafter her front-seat passenger wants to do the same. Of course, if initial review of the accident suggests your client (the driver) may have contributed to the accident, the lawyer should not represent the passenger, as per Rule 1.7(a)(1). Assume a slight change in the facts and liability clearly rests solely on the third-party driver. The disclosure language in 1.8(g) should allow the lawyer to represent both the driver and passenger. However, further investigation must be done to determine the amount and type of the tortfeasor's liability policy, as a single-limit policy, i.e. , one limit of liability coverage per accident regardless of the number of claimants, will result in a conflict. Again, full disclosure and transparency can solve the problem.

When representing minors, conflicts can also arise. Of course, the minor child is the client. However, the child's parent or guardian could have individual claims too, and also may believe they have an interest in any settlement proceeds the child receives from the claim. Since a court will approve the ultimate resolution of the claim under Pennsylvania Rule of Civil Procedure 2039, the “best interest of the child standard” will apply. Disclosure of this principle and the policy behind Rule 2039 ' specifically, the provisions that mandate that all proceeds to the minor be kept in a restricted account in the child's name only, become a very important part of the representation. In some cases where additional conflicts arise, such as when the parents disagree with the settlement figure negotiated by the child's lawyer, the lawyer may want to move for the appointment of a guardian ad litem, pursuant to Rule 2027.

When representing an injured client who is married, the lawyer must also understand who he or she represents and what duty is owed to the client's spouse. Typically, the spouse of an injured victim will be entitled to his or her individual claim for loss of consortium and services. This cause of action should be disclosed to the spouse initially and generally does not present a conflict. Of course, if the couple divorces during the representation or the spouse disagrees with another aspect of the lawyer's representation of the case, problems arise. Once these issues surface, communication under Rule 1.4 becomes problematic as well. If the case goes to trial before a divorce is final, the lawyer may have to terminate representation pursuant to Rule 1.16. Alternatively, if the case settles before the divorce is final, the client's spouse will likely be entitled to a share of the proceeds in the equitable distribution of the marital estate, possibly creating a duty for the lawyer under Rule 1.15 ' Safekeeping Property.

Representing persons injured by others can pose numerous ethical pitfalls for plaintiffs counsel, and this article merely scratches the surface of the topic. Just remember that you cannot go wrong with good old-fashioned honesty, common sense and a solid understanding of the Rules of Professional Conduct.

Christopher Marzzacco is a nonequity partner in the civil litigation department at Anapol Schwartz. This article also appeared in The Legal Intelligencer, an ALM sister publication of this newsletter.

Editor's Note: While this article is sometimes specific to Pennsylvania, the pitfalls still apply to other states.

Lawyers representing clients in personal injury claims face numerous ethical pitfalls every time they look for, evaluate, accept and handle a new case. Nonetheless, honesty, common sense and a solid understanding of the Rules of Professional Conduct should protect most of us from making mistakes.

Finding the Case

Your practice type typically dictates how you find your cases. Some come from referrals from other lawyers, prior clients and current clients; some from advertising. Common forms of advertising include television, firm websites, social media, radio, billboards and print media. Advertising often provides great exposure to potential clients. The Rules of Professional Conduct, of course, permit advertising via Rule 7.2. So, if the case does not come through a referral or word-of-mouth, how can you actively look for new cases under the rules?

Simply stated, do not mislead. Throughout the various subsections of 7.2, language mandates disclosure of various facts affecting the veracity of any advertisement. For instance, if you advertise on TV using a paid actor portraying a client, you need to disclose that fact. Similarly, if you concentrate in a specific area of the law, for example, motor vehicle crash-worthiness cases, and you advertise that “concentration” on your firm's website, the rules certainly permit you to do so, provided you are truly competent to handle those cases “from intake to trial.” If, however, your firm handles those cases only up to the point of formal litigation, you must disclose the existence of any referral or co-counsel relationship. To avoid problems when advertising, simple honesty and full disclosure in the ad should satisfy Rule 7.2.

Handling the Case from A to Z

If you have a law degree, passed the bar and have some experience handling injury cases, does that qualify you to handle every type of injury case regardless of the complexity? Rule 1.1 defines “competence” as possessing the “legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” This sounds simple; however, true competence in today's practice requires the ability to handle every aspect of the case from start to finish. For instance, assume you commonly handle low-impact, soft-tissue injury cases. Then one day a new client retains you to handle a tractor-trailer case with permanent injuries. Assume that you handle the negotiations with the insurance adjuster perfectly, and ultimately reach a seven-figure settlement without litigation. As part of the claim, the client's health insurer sends you notice of its subrogation claim, and at settlement your staff subtracts several thousand dollars from the client's proceeds and pays it to the carrier. However, you never researched the lien issue and failed to realize it was invalid under Pennsylvania and/or federal law. This certainly could be problematic and could result in a malpractice claim. Thus, “competence” also requires recognizing collateral issues and diligently working to resolve them in a reasonably prudent manner.

Conflicts of Interest

Conflicts arise in various forms in injury cases. Often, someone other than the client, like a family member or loved one, will contact you initially to discuss the claim. Sometimes, two people injured by the same product or in the same accident will want you to represent their interests. Non-injured spouses will have collateral causes of action, as will parents of injured children. These potential pitfalls can cause major ethical problems if not handled properly. Fortunately, a proper understanding of the relevant Rule of Professional Conduct, the case law interpreting the issue and full disclosure to the client can usually prevent problems.

Any time an injury lawyer faces a potential conflict, he or she should consult Rules 1.7 and 1.8. A very common scenario involves representation of multiple plaintiffs or claimants, typically in motor vehicle claims. Generally speaking, Rule 1.8(g) prohibits representation of more than one person involved in the same accident. For example, assume the driver of a car hurt by another tortfeasor retains you and at some point thereafter her front-seat passenger wants to do the same. Of course, if initial review of the accident suggests your client (the driver) may have contributed to the accident, the lawyer should not represent the passenger, as per Rule 1.7(a)(1). Assume a slight change in the facts and liability clearly rests solely on the third-party driver. The disclosure language in 1.8(g) should allow the lawyer to represent both the driver and passenger. However, further investigation must be done to determine the amount and type of the tortfeasor's liability policy, as a single-limit policy, i.e. , one limit of liability coverage per accident regardless of the number of claimants, will result in a conflict. Again, full disclosure and transparency can solve the problem.

When representing minors, conflicts can also arise. Of course, the minor child is the client. However, the child's parent or guardian could have individual claims too, and also may believe they have an interest in any settlement proceeds the child receives from the claim. Since a court will approve the ultimate resolution of the claim under Pennsylvania Rule of Civil Procedure 2039, the “best interest of the child standard” will apply. Disclosure of this principle and the policy behind Rule 2039 ' specifically, the provisions that mandate that all proceeds to the minor be kept in a restricted account in the child's name only, become a very important part of the representation. In some cases where additional conflicts arise, such as when the parents disagree with the settlement figure negotiated by the child's lawyer, the lawyer may want to move for the appointment of a guardian ad litem, pursuant to Rule 2027.

When representing an injured client who is married, the lawyer must also understand who he or she represents and what duty is owed to the client's spouse. Typically, the spouse of an injured victim will be entitled to his or her individual claim for loss of consortium and services. This cause of action should be disclosed to the spouse initially and generally does not present a conflict. Of course, if the couple divorces during the representation or the spouse disagrees with another aspect of the lawyer's representation of the case, problems arise. Once these issues surface, communication under Rule 1.4 becomes problematic as well. If the case goes to trial before a divorce is final, the lawyer may have to terminate representation pursuant to Rule 1.16. Alternatively, if the case settles before the divorce is final, the client's spouse will likely be entitled to a share of the proceeds in the equitable distribution of the marital estate, possibly creating a duty for the lawyer under Rule 1.15 ' Safekeeping Property.

Representing persons injured by others can pose numerous ethical pitfalls for plaintiffs counsel, and this article merely scratches the surface of the topic. Just remember that you cannot go wrong with good old-fashioned honesty, common sense and a solid understanding of the Rules of Professional Conduct.

Christopher Marzzacco is a nonequity partner in the civil litigation department at Anapol Schwartz. This article also appeared in The Legal Intelligencer, an ALM sister publication of this newsletter.