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St. Mary's Journal on Legal Malpractice & Ethics

2013

Malpractice

Articles 1 - 3 of 3

Full-Text Articles in Law

Arbitration Clauses In Fee Retainer Agreements., Chrissy L. Schwennsen Jan 2013

Arbitration Clauses In Fee Retainer Agreements., Chrissy L. Schwennsen

St. Mary's Journal on Legal Malpractice & Ethics

Due to the variety of approaches jurisdictions employ when determining the legal ramifications of arbitration clauses in fee retainer agreements, it’s best to include an explanation of the legal consequences of arbitration in the agreements. The attorney can, and should, fully explain the potential benefits of arbitration to clients. State courts take various viewpoints on the issue, and most stand contrary to the position of the American Bar Association (ABA) and state ethics committees on the subject. Consequently, attorneys must disclose truthful and accurate information regarding arbitration agreements when engaged in multijurisdictional practice in order to ensure protection from malpractice …


Guilt By Association: How “Standby Co-Counsel” Exposes Attorneys To Malicious Prosecution Liability., Colleen V. Lisowski Jan 2013

Guilt By Association: How “Standby Co-Counsel” Exposes Attorneys To Malicious Prosecution Liability., Colleen V. Lisowski

St. Mary's Journal on Legal Malpractice & Ethics

Attorneys should not assume that lending their name to a case is a risk-free practice. The California appellate decision, Cole v. Patricia A. Meyer & Associates, answered the question of whether non-participating, standby co-counsel could be held liable for malicious prosecution by merely being listed as counsel of record. Cole established the clear message behind being aware of “co-counsel” risks. According to the court, co-counsel cannot escape liability if they failed to know enough about the case. By rejecting the “passive counsel” defense, Cole held that associated attorneys still have a duty to research the validity of a case even …


How An Obscure Tennessee Opinion Uncovers The Veil Of Legal Malpractice Between Asset-Protection Trusts And The Uniform Trust Code., Charles Epps Ipock Jan 2013

How An Obscure Tennessee Opinion Uncovers The Veil Of Legal Malpractice Between Asset-Protection Trusts And The Uniform Trust Code., Charles Epps Ipock

St. Mary's Journal on Legal Malpractice & Ethics

In the year 2000, the Uniform Law Commissioners approved the Uniform Trust Code (UTC). This was the first effort to provide states with an all-inclusive model for codifying their trust laws. Since then, at least twenty-three states adopted some, or most of the UTC. But this enactment did not come without controversy. Most of the controversies stem from provisions regarding asset-protection trusts. The net result of asset-protection trusts within the UTC essentially disposes of discretionary trusts by requiring them to contain spendthrift language. The undesirable effect of these provisions is that without a spendthrift clause any creditor can attach a …