Legal Malpractice Claims on the Rise, Study Shows

General Alex Braunstein August 27, 2020

Legal malpractice claims in the U.S. increased in 2019, a trend that’s likely to continue.

Law360 reports that another wave of claims is likely in the coming years as a result of the coronavirus pandemic.

Law360 looks at a recent report by insurance broker Ames & Gough that surveys 10 leading lawyers’ professional responsibility insurers. Together, these 10 insurers provide insurance to 80 of the 100 largest law firms in the U.S. by revenue.

According to the Ames & Gough’s survey, eight of the 10 insurers saw as many or more legal malpractice claims in 2019 than they did in 2018, with three reporting double-digit increases.

Eileen Garczynski, senior vice president and partner at Ames & Gough, told Law360 that this trend may not be going away anytime soon.

“The sustained shutdown of the U.S. economy this year due to the COVID-19 pandemic may trigger yet another wave of legal malpractice claims, similar to what we saw in the aftermath of the 2008 recession,” Garczynski told Law360.

According to Garczynski, economic slowdowns have historically tended to trigger legal malpractice claims.

Other aspects resulting from everyone working from home could also lead to more future legal malpractice claims. According to Garczynski, one big reason for malpractice claims is due to a lack of proper communication and documentation on the part of lawyers, and this risk that presents could be magnified while people were working from home during the pandemic.

“I think we’re going to see an even bigger surge of legal malpractice claims coming out of this,” Garczynski told Law360.

BTG HELPS LEGAL MALPRACTICE VICTIMS

The Business Trial Group has a strong track record of helping clients recover losses in legal malpractice cases. Our attorneys have filed malpractice cases against well-known law firms for significant errors made on behalf of clients.

In August 2019, a jury awarded $1,790,000 to a Business Trial Group client against her former attorney and his law firm. In this case, attorneys Benjamin Webster and Damien Prosser represented Laurel Lee Buescher, a real estate broker who had hired the Collins Brown Barkett Chartered law firm to pursue her unpaid commission earned on a large commercial property sale. The jury concluded that, but for the attorneys’ negligence, Buescher would have recovered her commission.

Earlier this year, the Business Trial Group filed a legal malpractice lawsuit on behalf of a client against her former attorney, who failed to timely file her dental malpractice lawsuit within the applicable two-year statute of limitations.

It can be difficult to trust an attorney after being the victim of legal malpractice, but it is important to seek qualified, experienced counsel when filing a legal malpractice lawsuit. The Business Trial Group understands that victims of legal malpractice can be wary of the legal system. Our contingency litigation model ensures that our clients do not incur additional financial risk and compound their damages.

CONTINGENCY-FEE LEGAL MALPRACTICE ATTORNEYS

The Business Trial Group handles attorney negligence and malpractice cases on a contingency-fee basis. This means our clients pay no upfront or hourly fees, and our clients pay nothing until we win their case.

Our mission is to not only be the best legal malpractice attorneys in Florida, but to make the highest quality representation affordable. Because we handle legal malpractice litigation on a contingency-fee basis, our clients pay for results, not hours.

To discuss your claim with an attorney at no charge and with no obligation, contact us today or fill out our online form.

6 FAQS ABOUT PROBATE LITIGATION ANSWERED

General Alex Braunstein August 21, 2020

Dealing with the estate of a loved one who has passed away — a legal process known as probate — can be overwhelming. Particularly so, if there is a dispute regarding the assets of the estate, which may need to be resolved through litigation.

Attorney Sean Perkins, who is a partner in the Morgan & Morgan Business Trial Group, focuses his practice exclusively on probate, trust, and guardianship litigation. Sean fights to protect his clients’ inheritance rights in all types of disputes, including will and trust contests, elderly abuse, guardianship litigation, estate disputes, fiduciary litigation, and assertion of statutory inheritance rights.

Perkins answers some common questions about probate litigation and possible claims people may have. To protect your rights in a probate litigation lawsuit, contact us for a free case evaluation.

What is probate litigation?

Generally, there’s no fight in an estate administration – people get their money, their property, or their assets. In probate litigation, usually there is a fight over the rights to some assets of the estate. And that’s when we come in. We fight for the disinherited, and we work on a contingency fee, so our clients pay no upfront, out-of-pocket fees or expenses.

I represent people who have been wrongfully disinherited through fraud, undue influence, or lack of capacity. We also represent surviving spouses who are not receiving their statutory entitlements as provided for under Florida law. This is also applicable to minors as it pertains to things such an interest in homestead real property under the Florida constitution.

What rights do I have as a surviving spouse?

In Florida, surviving spouses have certain rights when it comes to a deceased spouse’s estate, unless they make a knowing waiver in writing. Let’s say your spouse owns a house in his or her name and has a million dollars in the bank, but has it all going to someone other than you. To protect your interest in this property that you are absolutely entitled to unless you waive them in an agreement, it is necessary to file a timely notice of election for elective share. There are often disputes over whether an elective share was waived, and what assets are subject to the elective share. It is also important to note that spousal statutory rights are a floor (not a ceiling) for spouses to make sure that they don’t get disinherited.

How would I know if I need to contest the will?

In a will contest, generally you would look for an unnatural disposition of assets that are going to someone other than the surviving spouse or children.

It could be one child taking a substantially larger share. You look at that and you look at the timing of it. Did it happen when the decedent was mentally infirm? Was the person who was the substantial beneficiary active in the procurement of the document under which they inherited substantially? Did they suggest the drafting attorney to the deceased?

When you see these factors, a disinherited or reduced beneficiary can file a will contest trying to set aside that last version of the will in favor of a prior document or, if none exists, intestacy.

One of the key issues here is standing. You cannot file a will contest unless you are the beneficiary under a prior document or you would be an intestate heir of the decedent.

What’s the difference between a will contest and a trust contest?

A will contest involves your last will and testament, which is a testamentary document that’s filed with the clerk of court when you die in Florida. A trust generally is generally not filed. And that’s one of the benefits of a trust: privacy. However, in a trust contest, one of the requirements is we have to attach a copy of the trust to the lawsuit because you have to include the document that’s being sued over.

What if my deceased relative changes the power of attorney?

We do litigate cases involving power of attorney. For example, the decedent changes the power of attorney 10 days before he passes. If the circumstances warrant, we may allege the document is void due to undue influence, lack of capacity, and/or exploitation of the elderly.

What we can attempt to do is set aside that power of attorney, and if we are successful then we can seek to invalidate any documents that were executed with the changed power of attorney, and claw that money back into the estate.

What should I do if I need to dispute the will or trust of a relative?

Consult with a litigation attorney who specializes in probate disputes. The Business Trial Group’s experienced attorneys handle probate litigation matters on a contingency-fee basis, so you pay no up-front fees for our services, and you pay nothing at all until we make a recovery in your case. Since our attorneys get paid directly from the estate, you incur no out of pocket expenses of any kind.

Contract Breaches Caused By COVID-19 and How “Force Majeure” Clauses Apply

General Business Trial Group April 2, 2020

The novel coronavirus COVID-19 has impacted the world in ways that did not seem possible just a short time ago, with business-as-usual grinding to a halt. Factory closings, event cancellations, conference postponements, transportation restrictions, and general concerns over the pandemic are causing major supply chain and labor disruptions. The current state of affairs is also raising questions about contract performance and the application of “force majeure” clauses.

Force majeure, translated from French as “superior force,” refers to a contractual provision that frees both parties from obligation in the event of circumstances beyond their control, such as a natural disaster or war. As the coronavirus continues to disrupt business — and as businesses struggle to satisfy contracts — the applicability of force majeure clauses is becoming a critical legal issue. The question of COVID-19 excusing parties from their contractual obligations may depend on the actual contract language, as well as local law.

Origins of the Force Majeure Clause

Force majeure clauses can be traced back to an English case decided in 1863. Taylor vs. Caldwell was a breach of contract dispute in which the defendant agreed to let the plaintiff rent a music hall and gardens for four days. After the contract was signed, but before the first event could take place, the venue was destroyed by accidental fire. The plaintiff sued the defendant for failing to rent out the music hall and breaching the contract, but the court ruled that the contract contained an implied condition that the venue was the foundation of the contract, and that without it, the contract was impossible to fulfill. Thus, the destruction of the hall, which was the fault of neither party, excused both parties.

The United States Supreme Court adopted the same rule of law twenty years later in a case (The Tornado) involving a ship that could not deliver freight because it caught fire before the voyage. Since the contract did not include a clause specific to this situation, SCOTUS applied the principle from Taylor vs. Caldwell. That is, because the contract depended on the ship being seaworthy, and because it was rendered unseaworthy, without the fault of either party, both parties were excused from performance.

American courts continue to apply this principle, but with certain modifications. A party relying on the defense of impossibility of performance must establish: (1) the unexpected occurrence of an intervening act; (2) the occurrence was of such a character that its non-occurrence was a basic assumption of the parties’ agreement; and (3) said occurrence made performance impracticable.

Coronavirus, Force Majeure, and Contract Enforceability

In regards to COVID-19 and contract nonperformance, if a contract doesn’t contain a force majeure clause, it could be implied under the impossibility doctrine described above, or the related frustration of purpose doctrine. For example, port shutdowns and transportation restrictions during the coronavirus outbreak could make it impossible for a party to perform their contractual obligations. Performance, however, must be truly impossible — not merely impractical or financially difficult.

If a contract does contain a force majeure clause, whether coronavirus is a qualifying event depends largely on contract specifics. For example, the contract could include language such as “epidemic,” “pandemic,” “disease,” “quarantine,” or “acts of government.” This is the case with the collective bargaining agreement between the National Basketball Association and its players. The agreement contains a force majeure clause that specifically references “epidemics” and could be invoked to reduce player compensation as the NBA season is suspended.

Contracts may not specifically mention epidemics, pandemics, and quarantines as force majeure events, but they could have a catch-all phrase (e.g., “any other circumstance beyond the control of the parties which they cannot overcome through reasonable and diligent efforts”) that is interpreted to capture coronavirus-related disruptions. Such an interpretation will likely vary significantly across jurisdictions depending on state laws. Force majeure provisions can also take on different characteristics based on the type of agreement and the industry involved.

Talk to an Experienced Breach of Contract Lawyer

The coronavirus pandemic has sowed uncertainty throughout Florida and the country. Our breach of contract lawyers understand that coronavirus affects stakeholders across the entire supply chain and employment landscape. To discuss the legal implications of COVID-19 for your business, schedule a free no-obligation case review.

In keeping with our philosophy of not charging upfront or hourly attorneys’ fees, the Business Trial Group is here to discuss any contract dispute you are having during this crisis. We will never charge you for a consultation and, if we are able to assist, you will owe us nothing unless and until we make a recovery for you.

Have a question about how coronavirus affects your contract? Get in touch with an attorney.

How Businesses Can Recover MyPayrollHR Losses

General Alex Braunstein November 15, 2019

If you are one of the thousands of businesses that was financially affected by the sudden collapse of MyPayrollHR and the arrest of the payroll company’s CEO, you may have a legal case to recover your losses.

MyPayrollHR conducted online payroll services for companies across the United States prior to its sudden closing on or about Sept. 5, 2019. According to an NBC News report, the company handled payroll for roughly 1,000 businesses across the United States. In some cases, companies may have white-labeled MyPayrollHR’s services.

Michael Mann, MyPayrollHR’s CEO, was arrested and charged in a $70 million bank fraud scheme near the end of September. The criminal complaint against Mann states that he borrowed large sums of money from banks and financing companies under false pretenses for the span of nearly a decade, in which he ultimately obtained around $70 million that he has not paid back.

According to reports, court filings show that Mann admitted under questioning that, in early September, he diverted to his own bank account $35 million in funds sent by his clients to cover their employee payroll deposits and tax withholdings.

It’s suspected that MyPayrollHR shuttered suddenly after Mann’s banks suspected him of fraud and froze his accounts.

The Fallout of MyPayrollHR’s Demise

MyPayrollHR’s sudden collapse also affected the automated clearing house (ACH) processor that the payroll company had used for years. MyPayrollHR used a financial services company called Cachet Financial Services to essentially move the money into employees’ accounts via direct deposit.

However, when Mann diverted millions of dollars in client payroll deposits from Cachet to his personal bank account, Cachet’s emptied holding account was debited for the payroll payments. According to reports, Cachet quickly reversed those deposits, which then caused one or two pay periods worth of salary to be deducted from bank accounts for employees of companies that used MyPayrollHR.

In some cases, employers were forced to advance funds to their employees.

Eventually, according to multiple reports, Cachet ultimately decided to cancel those reversals and absorb the $26 million hit. In turn, the financial services company filed a lawsuit against MyPayrollHR, which alleges breach of contract, fraud and unjust enrichment, among other accusations.

Cachet Financial Services recently announced it was no longer handling payroll transactions. According to the Cachet’s website, the company stopped processing ACH payments through its sponsor bank on Oct. 25, 2019 after the bank decided to discontinue processing payroll via ACH for Cachet.

Contact the Business Trial Group for a No-Obligation Case Review

If you believe you have suffered a financial loss due to the activities of MyPayrollHR or related businesses, contact the Business Trial Group right away. Our attorneys are experienced in complex business litigation and routinely handle breach of contract lawsuits involving all types of agreements and industries.

The Business Trial Group operates on a contingency fee basis, which means that we charge nothing for an initial case review, and if we accept your case, we will not charge a fee unless the case is successfully resolved.