Day on Torts

It is a good idea to write a reject letter to a potential client when you turn down a case. A good number of lawyers tell the receipent of the letter something about the statute of limitations on the particular claim in such a letter. This decision reminds us why we need to be careful when we do so.

A Chicago law firm rejected a wrongful death claim and advised the potential client that the statute of limitations was two years. In fact, it was one. The letter concluded as follows: “Therefore, should you decide to pursue this matter further, we respectfully suggest that you contact an attorney of your choice immediately so that the Estate’s legal rights may be fully protected. Do not delay.”

The receipent sought the advice of another attorney within the applicable one-year period; that attorney had one meeting with the client and then rejected the case. His reject letter said this: “Please be advised that all lawsuits are limited by a period prescribed by statute. You need to have your daughter’s case filed within the applicable limitations period. If you do not do so, you may lose whatever rights you have to recovery.”

The high court of Massachusetts upheld a lower court decision that found and enforced an oral fee-splitting arrangement between two lawyers. The lawyer who refused to share the fee claimed that the agreement was not only not it writing but was not agreed to by the client (which is also required in Tennessee).

The Court held that the requirement of client approval was to protect the client, not a breaching lawyer. The agreement was upheld.

The Court also announced this rule for future cases: “the referring lawyer, who usually is in the best position to secure compliance with rule 1.5 (e), is required to disclose the fee-sharing agreement to the client before the referral is made and secures the client’s consent in writing. The rule will be construed to require this in fee-sharing agreements that are formed after the issuance of the rescript in this decision. Although the primary responsibility for compliance will fall on referring lawyers, lawyers to whom referrals are made are not absolved of all responsibility, and should confirm, before undertaking such representations, that there has been compliance with rule 1.5 (e). We emphasize that although failure to comply with the rule may not necessarily render a contract unenforceable between lawyers, it may subject both lawyers to disciplinary action upon division of a fee.”

Here is a e-book written by Judge Mark Painter in Ohio. The book is called “Legal Writing 201” and it contains 30 rules that will help you write for, not like, a judge. (That is what the sub-title says, I promise.)

Thanks for the lead from Appellate Law and Practice.