Careful Who You Hitch Your Wagon To By Rosa Winston A law firm just installed the latest case management program. When inputting data into the new system, one of the firm’s paralegals entered the wrong date for a court hearing on the opposing party’s motion for summary judgment. The opposing party won its motion by default because the law firm failed to appear on behalf of its client. Although an honest mistake, this clerical error is an overt act of malpractice. Why? Because it worked to the detriment of the client, violating one of the industry’s principle edicts, competence. In the American Bar Association’s Model Rules of Professional Conduct, the preamble and preface address quality of representation with the latter clearly stating that its continued goal is to assure the “highest standards of professional competence and ethical conduct.” Missing a filing deadline has serious consequences, some irreversible. For example, say in a personal injury claim, an individual or group of individuals might be forever barred from pursuing their legal matter, or in the case of a bankruptcy, it could be discharged if the attorney fails to file documents within the specified time. This was the case with Jennifer Hassall when her attorney Beauregard Maximillon Harvey failed to respond to the bankruptcy trustee’s motion to deny a discharge (Toledo Bar Assn. v. Harvey, 141 Ohio St.3d 346, 2014-Ohio-3675). Harvey was charged with violating Rule 1:1 Competence of Ohio’s Rules of Professional Conduct. According to the Ohio Supreme Court’s Board of Professional Conduct, attorney malpractice
claims were up last year by 33 percent over the previous year. While such misconduct often results in punishment for the attorney or firm, the outcome of such behavior can have dire consequences for the client. In one instance, a widow lost her home in a sheriff’s sale when the attorney representing her failed to file a timely answer in a foreclosure action (Komorowski v. John P. Hildebrand Co., L.P.A., 2015-Ohio1295). Initially, the trial court granted summary judgment for the defendant, but this decision was reversed by the Eighth District Court of Appeals in Cuyahoga County. In essence, while I found no specific cases centering upon clerical or data entry errors as the impetus behind ethics charges, missing a deadline, regardless of reason, is grounds for accusations of malpractice, for it falls below the duty of care expected of legal practitioners in addition to its detrimental effects on clients and on the greater community served. While researching this issue, it occurred to me that this is great information for the consumer and equally important information for the aspiring paralegal, as it offers a glimpse into the practices of potential employers. With an estimated 39,000 attorneys in Ohio, we must be careful, to borrow a pre-industrial phrase, about who we hitch our wagons to. Rosa Winston Paralegal Studies, Columbus State Community College rwinston@student.cscc.edu
Winter 2016 Columbus Bar Lawyers Quarterly
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