Fall 2023 OREGON TRIAL LAWYERS ASSOCIATION In the Service of Justice Professional Negligence
1 Trial Lawyer • Fall 2023 Board of Governors Fall 2023 The views expressed in Trial Lawyer are solely those of the authors and do not necessarily reflect the policies or opinions of the Oregon Trial Lawyers Association, its members, Board of Governors or staff. Trial Lawyer is a quarterly publication of the Oregon Trial Lawyers Association and is distributed as a membership benefit. For permission to reprint articles, contact Michael Kesten at 503-804-0668, michael@kestenmedia.com. For advertising rates, contact law@llmpubs.com or 503-445-2240. Publications Committee Co-Chairs — Barb Long, barb@vogtlong.com. 503-228-9858; Faith Morse, faith@morselawllc.com, 541-362-4725 Editor — Michael Kesten, KestenMedia, michael@kestenmedia.com, 503-804-0668 Oregon Trial Lawyers Association, 812 SW Washington Ste. 900, Portland OR 97205, 503-223-5587, otla@oregontriallawyers.org, www.oregontriallawyers.org Dedicated to protecting people, holding wrongdoers accountable, and promoting a fair and equitable justice system through advocacy and education. Articles Unveiling the Primary Factors in legal malpractice Sharnel Korala Mesirow..................................................................................6 When Legal Questions Result in Expansion Kirc Emerson .................................................................................................8 Professional Negligence in Residential Construction Defect Cases Robert Wilkinson..........................................................................................14 Weaponizing Care: Therapist malpractice Barb Long ....................................................................................................17 A Tale of Missed Direction: In dental malpractice Tina Stupasky, Bryan Lessley.........................................................................20 The Alphabet Soup of Vision Malpractice Greg Zeuthen ............................................................................................... 24 Lessons Learned: Navigating medical malpractice Brendan Dummigan, Deena Sajitharan ........................................................30 Heart Surgery Gone Wrong Marc Johnston .............................................................................................35 The Horse's Tail: A case study of medical malpractice Rhett Fraser...................................................................................................38 Differential Diagnosis: Rule out the danger Stephen Voorhees .........................................................................................42 Get the Most from Your Expert Chris Kuhlman ............................................................................................44 Giving a Voice to Those Silenced: Residential care facility abuse Blair Townsend ............................................................................................47 Departments President’s Message: Where I came from, what you can do Rob Kline........................................................................................................2 View from the Bench: Know the law, know the facts, know the judge Hon. Joe Charter.............................................................................................4 Annual Partners. ................................................................................................. 23 OTLA Guardians of Civil Justice........................................................................ 28 Comp Corner: Arbiter over AP Julene Quinn................................................................................................50 Between the Sheets Cody Hoesly, Lisa T. Hunt, Nadia Dahab....................................................... 51 Officers President Rob Kline President-elect Melissa Bobadilla Secretary-Treasurer Brent Barton Parliamentarian Rob Beatty-Walters Immediate Past President Blair Townsend District Governors Talia Guerriero — District 1 Nathan Sosa — District 1 Kelly Andersen — District 2 Tim Williams — District 2 Rhett Fraser — District 3 Jovita Wang — District 3 Derek Johnson — District 4 Lara Johnson — District 4 Erin Christison — District 5 Diego Conde — District 5 Governors-at-Large Steve Berman Keith Dozier Ronn Elzinga Sonya Fischer Chris Hill Neil Jackson SMona Moghimian Jeremiah Ross New Lawyer Governors Ashley Rosenbaum-DePalo Emily Johnson AAJ Governors Tom D’Amore Nadia Dahab Shenoa Payne AAJ State Delegates Ron Cheng Ryan Jennings Michael Wise OTLA Staff Email, (firstname)@oregontriallawyers.org Main phone, 503-223-5587 Kathleen Bergin, 503-223-5587 x108 Membership Director Beth Bernard, 503-223-2558 Chief Executive Officer Caroline Greenlaw, 503-223-5587 x100 Development Director Arthur Towers, 503-345-0045 Political Director/Lobbyist Dorina Vida, 503-223-5587 x111 Education and Communications Director
2 Trial Lawyer • Fall 2023 By Rob Kline OTLA Guardian My political awakening occurred at age 14. I grew up in a suburb of New York City and was hanging out after school at a friend’s house. My friend showed me a Time magazine with a cover story about the breaking news that President Ronald Reagan had secretly authorized the Central Intelligence Agency to support the Contras, a rightwing, anti-communist, terrorist group battling the communist Sandinista government. Much of the funding for the Contras came from sales of cocaine. The CIA provided funding, training, equipment and target lists to the Contras that were used in torture and assassinations. There were color photographs of dead bodies in the jungle. The images are still etched in my mind. I was shocked that our government was directly involved in the murder of citizens in another country. Not longer after that, I learned about apartheid in South Africa, a system of state-sponsored racial segregation in which non-white citizens were deprived of political and civil rights, and subjected to human rights abuses. I had trouble reconciling the privileges we enjoyed like good public schools in our picturesque small town with the harms the United States government was doing, or was at least complicit in, overseas. My emerging sense of politics was decidedly Where I came from, what you can do left of center and it made me something of a black sheep in a Republican family with deep Texas roots. I developed a penchant for challenging assumptions, and sometimes authority, when I saw people who were less fortunate being dominated or exploited by those with power. Looking back, this was when I first started considering a career in law. I majored in political science at the University of Colorado at Boulder. I was particularly interested in subjects like how the United States and other western countries exerted their influence and power over lesser developed countries. I enjoyed learning about macroeconomics and how institutions like the International Monetary Fund and the World Bank made loans in Africa that came with conditions that only benefited the sponsors of these loans and guaranteed the indentured servitude of the recipients for years to come. I was kind of a serious kid. After college, I moved to Washington, D.C., figuring it was the best place to put a political science degree to use. After an internship on Capitol Hill, I landed at Thompson Publishing Group on K Street. I started as a reporter and over the course of four years worked my way up to managing editor where I edited trade journals that covered federal environmental programs including the Clean Air Act, Clean Water Act and programs covering hazardous waste. I developed sources on the Hill, at the U.S. Environmental Protection Agency and in a variety of groups that sought to influence the development of environmental policy in our nation’s capitol. The perfect match My interest in environmental law dovetailed nicely with a love of the outdoors born from completing an Outward Bound trip as a teen, and four years of skiing and mountain biking in the Rockies during college. As I mentioned, I had an inkling I would go to law school ever since that political awakening at age 14. After four years of writing about environmental law from the sidelines, I decided it was time to go to law school and be a participant. Looking back, my desire to help preserve the natural resources of the planet was another application of wanting to protect the weak from the strong — here, the environment, which couldn’t speak for itself. I spent my first year at Vermont Law School, attracted by its top-rated environmental law program. Unfortunately, I learned that I didn’t love administrative law where the day-to-day work involved challenging agency decisions on a closed, cold record. I transferred to the University of Oregon School of Law where I got my law degree. After passing the bar, I moved to Portland where I externed for U.S. Magistrate Judge John Jelderks. I then spent five years doing insurance defense and working at a large regional firm doing President’s Message Rob Kline
3 Trial Lawyer • Fall 2023 commercial litigation. I worked with some fine lawyers and got some great training, but my heart wasn’t in representing insurance companies and corporations. My sympathies and passion were for the people on the other side of the disputes, the underdogs that were fighting these large institutions to get justice for the wrongs that had been visited on them. In 2003, I jumped into the void and started my own law practice. At first it was practicing “door law” — handling whatever came in to keep the lights on including business, construction and employment litigation, and a small but growing number of personal injury cases. Going from a firm of 180 lawyers to a solo practice, I knew I needed a support network, and OTLA was the logical place to go. To be candid, I was intimidated about getting involved in OTLA. I had been doing defense work, and the organization felt powerful and was populated by many larger-than-life personalities. I want to thank Neil Jackson for persuading me to co-chair the education committee. Jackson and others encouraged me to jump in and attend our annual convention. I remember getting in the first drink line at the first event at my first OTLA convention in Sunriver. Two of those personalities — Larry Wobbrock and Bill Gaylord — were ahead of me in line. Wobbrock introduced himself. To my surprise, they both welcomed me with a warmth and sincerity that I had not expected and not experienced doing defense work. I fell in love with the people and the mission of doing what OTLA does best — improving lives through the civil justice system. In your corner After a couple years, I limited my practice to personal injury cases. In many ways, I felt like I had finally arrived. I was at a place in my career where I could use my strong sense of what was just — and not — and help ordinary people who sometimes faced long odds in getting justice for what had happened to them. My most enjoyable cases have been representing people that have never had anyone in their corner fighting for them. The work we do can be extremely taxing, but it is also incredibly satisfying to be able to make a difference in the lives of our clients. Over the years I have chaired or served on just about every OTLA committee. The relationships, education and inspiration I have gained from the organization have been absolutely invaluable to me, my practice and my clients. Along the way, innumerable people have given generously of their time and helped me in ways both small and large without hesitation or any expectation of anything in return. The risk of mentioning one person by name is that all the other people who have helped me along the way will feel left out, so please forgive me if you are on that list as I mention one. I will never forget the kindness Mark Bocci demonstrated helping me while I was preparing for my first solo jury trial. Bocci often encouraged me to call him in the hospital where his now-late wife was getting chemotherapy and, in typical Bocci style, his offer of assistance felt like he was asking me to do him a favor. My opportunity to give back to the organization came in the fall of 2017. The Oregon State Bar proposed amending Rule 5.4 of the Rules of Professional Conduct in a manner that would have had the effect of permitting internet lawyer referral services, awash in venture capital, to aggressively solicit injured Oregonians, obtain a stake in their cases and auction them to the highest bidder. Oregon would have become the first state in the country to create such a radical change. I led the charge, with the help of many others, to stop the proposal in the OSB House of Delegates. Some 600 emails later, and with the invaluable assistance of Steve Berman and many others in a variety of forums, we succeeded in getting the Bar to table the plan. Share ideas and give back I am honored to serve as your OTLA President. My charge to you is to get involved. Find a cause that motivates you. Talk to me or a board member or a staff member. Chances are that a lot of others will agree with and support you. If you are a newer OTLA member or haven’t yet taken advantage of what OTLA has to offer, approach a more experienced member, join a committee or attend convention. I think you’ll find the openness and willingness to help other members that I first experienced 20 years ago in Sunriver. It’s part of what makes OTLA so special. We need you, your skills and your ideas. If you have been a member for a longer time and haven’t been active, I urge you to reach out to a newer member, teach something, share something or find another way to give back. There are so many opportunities to give and participate and bring the benefits of OTLA to others. Remember what got you thinking about law school in the first place — for me it was secret government funding of the Contras — and leverage that passion. Rob Kline specializes in cases involving motor vehicle collisions, workplace injuries and sexual abuse. Kline practices as senior counsel at the Johnston Law Firm, 200 SW Market St., Ste. 1900, Portland, OR 97201. He contributes to OTLA Guardians as the Guardians Club level. He can be reached at rob@johnston-lawfirm.com or 503-546-3167.
4 Trial Lawyer • Fall 2023 By Judge Joe Charter formerly Jackson County Circuit Court First, some background. After five years in Alaska, I passed the Oregon Bar in 1991. I was a small town (Medford) litigator for 25 years, trying personal injury, construction defects, employment and other civil cases. In 2004, I was elected Justice of the Peace and heard traffic and municipal code violations. I became a bankruptcy trustee in 2011, and litigated preference and discharge issues in bankruptcy court. I was elected to the Jackson County Circuit Court in 2020 and was assigned to juvenile and domestic relations cases during the pandemic. Along the way, I served on many community boards and nonprofits. I also acted in a dozen community theater roles in as many years. In retrospect, it would have been helpful to have had theater classes as part of my law school curriculum. I learned early on that trial work, like most human endeavors, involves good story telling. I told clients in trial preparation that I would help them create a play to tell their story to the jury. I would be the director and help them write the script, but they would be the star of the show, not me. They would also help select those in supporting roles. Which leads to the first bit of advice: don’t steal the spotlight. View From The Bench Hon. Joe Charter Know the law, know the facts and know the judge It’s not about you None of us would have gotten where we are without a healthy sense of ourselves and our abilities. But lawyers are sometimes so dazzled by the craft of their presentation that they lose sight of the audience. A defendant in a speeding violation trial I heard hired an out-of-town lawyer who argued with the cop and then threw up every conceivable legal argument to see what might stick. It wasn’t until the defendant himself butted in and said the car following him that evening (before the cop lit him up) looked like it was speeding up to pass him on a dangerous curve that my ears perked up. “Oh, necessity defense — dismissed.” Not because of the lawyer’s advocacy. In divorce cases, advocates are sometimes so enmeshed in their client’s trauma that they trade personal attacks rather than address the court. I have on occasion threatened to leave the room while they continued to insult each other. Read the room My witness preparation for clients always began with the fact that they could be observed by potential jurors as soon as they enter the courthouse. Some claim 55% of communication is nonverbal body language. See https://londonimageinstitute.com/how-much-of-communication-is-nonverbal/ Many lawyers pay little attention to their clients’ body language. In a domestic violence case, an accused abuser’s dismissive snorts and smug head shaking during the victim’s testimony does not bolster their credibility. In family law cases, the same behavior from grandparents and newer partners in the gallery communicates tons about the family system dynamics. I once attended a non-profit fundraiser where the speaker never looked up from his notes or noticed that the sound system was not working properly. Only those in the nearest rows heard what he had to say. Testimony is often long and boring. If you read the room, you’ll know when your point has been made and when enough is enough. Be prepared For jury trials, I always typed out every question for both direct and cross. Perhaps my primary purpose was to reduce my own anxiety, but it also reduced the client’s anxiety to know there was a plan and order to the presentation of evidence. Others can work from an outline, but most need some checklist corresponding to the elements of proof to guide them. In document intensive cases, the best lawyers have tabbed binders of exhibit copies for the judge, witnesses and opposing counsel in addition to originals for the clerk. Either admissibility has been stipulated to beforehand or any rejected exhibits can be removed. You can hold back rebuttal exhibits, but when most exhibits are offered in one
5 Trial Lawyer • Fall 2023 package at one time the chance of any becoming lost or misplaced is reduced. If the text of a document is pivotal during examination of a witness, guide the judge there: “Your honor, I’m referring now to exhibit 32, page 7, paragraph 3.” Be flexible Trials are live theater. Anything can, and often does, happen. Remember that the map (your outline or notes) is not the territory. If you read the room, you will know when you need to depart from the script to clarify or emphasize a point or respond to something unexpected. The best trial lawyers can take a body blow to the stomach and still project an attitude of calm, confident composure. Be human Authenticity comes from willingness to admit that you are not perfect and make mistakes. When you do make a mistake, however trivial, own it completely. Advocacy is often a difficult to determine line between total war and professionalism. The several times I came too close to that line I would say, “Yes, your honor, I did that. I was not at my best. It will never happen again.” Judges never want to hear that the reason your filing is 21 days late is because the court clerk was unreasonable. Be trauma informed Human foibles, faults and traumas are on public display during a trial. Be sensitive to that when approaching sensitive topics. A softening preliminary comment can be, “This may be a difficult question for you, but it’s my job to ask it …” You don’t get extra points for being an a**. Judges are human, too Before I took the bench, I observed other judges and thought, “I could do better than that.” After a few months in the role, I realized that the job is more difficult than it looks. A judge is often multitasking: signing on, finding the appropriate docket and documents in the case, responding to IMs from clerks and planning the order of cases. Help the judge out by pausing when they appear to be distracted. File a trial brief and deliver a copy to the judge’s chambers before appearing in court. Three pages is sufficient for a bench trial. Don’t assume they have it because you filed it the night before. It often takes 48 hours for e-filed documents to appear on the docket. Don’t overpromise what you expect the evidence will show. If you present a story supported only by what your client has told you, you have constructed a house of cards that, when it crumbles, will affect your own credibility in this case and all those that follow. Stay courteous I put a post it on my desk which said: “Patient, dignified, courteous.” On a good day, I hoped to achieve at least two out of three. On a difficult day if I could only manage one, I would be courteous. Professional courtesy will serve you during your career long beyond the apparent needs of any particular case. Most OTLA members already do what I’ve suggested here. But like elite athletes, it never hurts to return to the fundamentals. When we are all at our best, we collectively create what the system is designed to deliver: justice. That is a noble calling to pursue. Hon. Joe Charter retired from the Jackson County Circuit Court in May 2023. He was previously the Jackson County Justice of the Peace and a general practice civil litigator for nearly 30 years. He currently acts as a mediator and arbitrator. He can be reached at charterjoseph@gmail. com or541-944-4297. Help the judge out by pausing when they appear to be distracted.
6 Trial Lawyer • Fall 2023 By Sharnel Korala Mesirow Legal malpractice is a concerning mat- ter with far-reaching implications for clients and attorneys alike. In my capacity as a claims attorney at the Professional Liability Fund (PLF), the mandatory provider of primary malpractice coverage for Oregon lawyers in private practice, we are presented with a distinctive advantage of having access to complete market of practicing attorneys. By engaging with this diverse community of lawyers, we are able to amass invaluable information and identify the underlying causes of malpractice. Over the 45-years of its existence, the PLF has successfully discerned five primary factors contributing to legal malpractice. My goal here is to shed light on these factors and, in turn, offer practical solutions to safeguard against these pitfalls. Quality of legal representation One of the key factors leading to legal malpractice is the quality of legal representation. Attorneys have a duty to provide competent and diligent services to their clients. However, inadequate legal research, failure to file documents on time or lack of understanding of relevant laws can result in malpractice claims. Attorneys who lack the necessary expertise or fail to stay up-to-date with legal developments may unintentionally harm their clients’ interests. Solution: Get a mentor. A mentor offers a wealth of experience, wisdom and guidance that textbooks and classrooms simply cannot provide. They can help you navigate the complexities of the legal profession, offer insights into various practice areas and share practical advice on building a successful career. A mentor can also serve as a source of motivation, encouraging you during challenging times and celebrating your accomplishments. By establishing a mentor-mentee relationship, you gain a trusted confidant who can help you avoid pitfalls, broaden your network and foster your professional growth. Embrace the opportunity to learn from those who have walked the path before you, as a mentor's invaluable support can shape your journey toward becoming a skilled and well-rounded lawyer. Ineffective communication Effective communication is vital in the legal profession, and its absence can contribute to legal malpractice. Miscommunication or failure to provide timely updates to clients can lead to misunderstandings and frustration. Furthermore, poor communication between attorneys and opposing counsel can result in missed opportunities for settlement or compromise. Solution: Engage in a face-to-face discussion. While modern technology has enabled remote communication, face-to-face interactions offer unique benefits. In-person meetings allow for a deeper understanding of a client’s needs, emotions and concerns, enabling you to provide more personalized and empathetic legal counsel. It also builds trust and confidence, as clients feel reassured by the direct connection and your undivided attention. Moreover, it provides a space to gain understanding on the recommended course of action and may lead to more frank discussions of the evidence. Embrace the power of in-person meetings to establish rapport, demonstrate your dedication and ensure clients feel valued and supported throughout their legal journey. Client management issues: Client management plays a crucial role in preventing legal malpractice. Attorneys have a responsibility to properly Sharnel Korala Mesirow Unveiling the Primary Factors in legal malpractice
7 Trial Lawyer • Fall 2023 manage their clients’ expectations, provide realistic assessments of their legal matters and maintain open lines of communication. Failure to manage clients’ expectations can lead to dissatisfaction and potential malpractice claims. Additionally, attorneys must ensure that they have the necessary resources and time to effectively handle their caseloads to avoid negligence or oversight. Solution: Sometimes the best thing you can do is decline a client. Some key warning signs to watch for include clients who are uncooperative or dishonest during the initial consultation, as this may indicate challenges in communication and trust. Clients with unrealistic expectations or demands beyond the scope of legal norms could lead to untenable situations. If conflicts of interest arise, such as representing opposing parties in the same matter, it is crucial to avoid compromising professional integrity. Additionally, clients who frequently switch attorneys or have a history of lawsuits may raise concerns about their credibility or the viability of the case. Evaluating these red flags early on can help lawyers make informed decisions about client representation, ensuring they can provide competent and ethical legal services while protecting their own reputation. Office systems management issues Efficient office systems management is essential for the smooth operation of a law firm and to prevent legal malpractice. Poorly managed systems, such as disorganized case files, inefficient billing practices or inadequate document management can increase the risk of errors and omissions. Implementing effective systems, including case management software, standardized processes and regular staff training can mitigate these risks and enhance overall efficiency. Solution: The Professional Liability Fund is an excellent resource for attorneys and their staff. The team of practice management attorneys (PMAs) offer guidance on various aspects of law practice management and malpractice prevention. Oregon State Bar members can seek guidance by contacting a PMA directly with any inquiries related to law office management. Additionally, they can schedule free and confidential phone, in-person or videoconference meetings with a PMA to receive assistance on a range of topics, including opening or closing a law practice, joining or leaving a firm, enhancing office systems and procedures, improving client relations or trust accounting. Attorney impairment Medical issues, substance abuse, mental health impairment or personal challenges can lead to compromised attorneys, which ultimately can have a detrimental impact on the quality of legal representation. Impaired attorneys may find it difficult to maintain the high level of diligence required to handle cases effectively, resulting in compromised client outcomes. Additionally, impaired judgment can lead to poor decision-making in legal matters, potentially leading to errors or oversights that could result in legal malpractice claims. Solution: By implementing succession planning and fostering connections with fellow attorneys capable of assuming responsibility for ongoing cases in unforeseen circumstances, practitioners can ensure both personal and client peace of mind. Having a contingency plan in place enhances preparedness and allows for the smooth continuation of legal matters, contributing to the overall efficiency and reliability of legal practice. In addition, attorneys can avail themselves of therapeutic support and guidance through the comprehensive offerings of the Oregon Attorney Assistance Program. Sharnel Korala Mesirow is a claims attorney at the Professional Liability Fund with 20 years of legal experience. She can be reached at 503-639-6911.
8 Trial Lawyer • Fall 2023 By Kirc Emerson OTLA Guardian As trained problem solvers and issue spotters, attorneys gravitate to helping their clients with all sorts of issues. It’s likely part of the reason why many people became attorneys in the first place. But it is this desire to consistently step in and help that often creates unintended consequences and unconsidered risks for both attorney and client. When a client sends an email, it is generally the first instinct for an attorney to simply answer the questions, maybe performing a bit of research in the process and then move on with their day. Most, if not all, attorneys can likely relate to this scenario. Much of the time there is no need to give these instances a second thought. However, when the questions answered do not fall within the issues the client first came to the attorney for, this can lead to a potentially unintended expansion of the representation. Without defining what you are — and equally as important, what you are not — doing for the client as their attorney on any new or existing issue, it is easy for simple items to be missed and for clients to be harmed in the process. The client’s reasonable, subjective belief under the circumstances is key to determining whether an attorney-client relationship is formed. So, if an attorney is not careful, quickly answering questions from an existing (or potential) client with a bit of your legal knowledge can have far-reaching and unintended implications if something goes wrong. A helping hand Consider the following scenario. You take on a client who was in a motor vehicle accident with some serious injuries. You have been spending a significant amount of time working with the client on the case. One day the client comes in asking for some help with their parent’s probate estate. The client disagrees with how the estate is being handled by the personal representative, including the proposed distribution plan, and asks if you will help them get more information. Although trusts and estates are not within your normal practice area, you agree to draft a letter explaining your client’s issues with the estate, including their objections to how it is being handled and a request for information. You meet with the client, answer a handful of questions and tell them the letter should get the client the information they want. You spend a couple of hours in total, and the client is very appreciative. No new engagement letter is signed, and, if it goes any further, you plan to refer the client to a trust and estate attorney — but you do not tell the client at this point. Documents come in a few weeks later, you send them to the client and move on. Several months later, your client returns for a meeting on the personal injury case, upset and alleging that it is your fault that they have been disinherited. The will had a no contest clause and the letter you sent on behalf of the client challenged the distributions. You may think to yourself, I had no idea there was a no contest clause, either. I simply sent a letter that my client approved. But did you advise the client of the risks of sending the letter (i.e., potential disinheritance)? Did you ask for a copy of the will? Could the letter have been drafted without any language contesting the will and still achieve the client’s goals? Did you perform enough research to figure out the risks? Did you limit the scope of the representation? Did you get informed consent? What was intended as a kind gesture has likely turned into a malpractice case. Kirc Emerson When Legal questions result in expansion
9 Trial Lawyer • Fall 2023 Trouble in paradise A couple of troubling new trends have come to light related to the defense of legal malpractice cases, often when the attorney failed to perform an admittedly basic task or provided incomplete advice. Attorney defendants have sought to justify errors by (1) arguing the representation was “limited” to a “set of tasks” or “discrete questions” and (2) blame the client. However, these defenses generally ignore the necessary requirements to limit the scope of representation under the Oregon Rules of Professional Conduct (ORPC) and the principles of comparative fault. Understanding what creates an attorney-client relationship, how it can expand, how to limit the scope, if that is your intent, and when a client’s actions can contribute to attorney malpractice — all can help facilitate better client relationships, achieve better results and avoid malpractice. Define the scope of representation As the adage goes, “in for a penny, in for a pound.” When a lawyer agrees to represent a client regarding a legal matter, they are fully responsible unless the lawyer (a) sets forth reasonable limitations under the circumstances and (b) the client gives informed consent to the limited scope of representation. See OPRC 1.2(b) (“A lawyer may limit the scope of representation if the limitation is reasonable under the circumstances and the client gives informed consent.”). Unfortunately, several recent cases have highlighted how attorneys often fail to provide the necessary explanation to clients to limit the scope of representation, leading to negative results for clients and malpractice claims. These claims could have likely been avoided with proper care, understanding ORPC 1.2(b) (limited scope representation) and clear communication by the attorneys to their clients. These situations frequently arise when the attorneys (1) do not have an engagement agreement, (2) have a broad and ambiguous scope in an engagement letter, (3) have an outdated engagement letter, (4) field questions on the fly that are outside of the scope of the engagement or (5) take on additional items for clients without taking into consideration the full scope of any new issues. As natural problem-solvers, rather than staying within the original scope of engagement, setting forth a new, limited scope engagement or declining to provide advice altogether, because it may be outside of their general practice area, attorneys tend to dabble by answering these questions in a limited way in an effort to be helpful. But this can commonly lead to differing expectations regarding what the attorney is handling. “A lawyer-client relationship need not arise from an explicit contract but rather ‘may be inferred from the circumstances and conduct of the parties.’” Lahn v. Vaisbort, 276 Or App 468, 477 (2016) (quoting In re Wyllie, 331 Or 606, 615 (2001)). A subjective, uncommunicated intent or expectation of a client, accompanied by “evidence that the lawyer acted in a way that would induce a reasonable person in the client’s position to rely on the lawyer’s professional advice” can create an attorney-client relationship. See In re Weidner, 310 Or. 757, 768-70 (1990). If the attorney answers client questions and gives “limited advice” they must comply with ORPC 1.2(b) and receive “informed consent” from the client. In the above example, the attorney took on an estate matter for the client, failed to limit the scope of representation, and, therefore, is charged with fully advising the client. Failure to advise of potential disinheritance if the will has an in terrorem clause — or if it is unclear whether the will has one to craft a letter that avoids challenging anything — is material and necessary information for the client to make an informed decision. Where the attorney may look at the situSee Legal Questions p 10
10 Trial Lawyer • Fall 2023 Legal Questions Continued from p 9 ation as a scrivener, the client is looking for advice and guidance. The client did not ask me to do that It is important for attorneys not to assume a limited role simply because a client asks basic questions or for simple tasks to be performed. The recent trend in asserting a “limited scope” of representation as a defense to legal malpractice claims based on nothing more than the fact that a client only asked a couple of questions about a particular topic ignores the plain language of ORPC 1.2(b) and ORPC 1.0(g) because a client needs to know the material risks of any limitation before it is considered “reasonable” under the ORPC. “‘Informed consent’ denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to a proposed course of conduct.” ORPC 1.0(g). Thus, answering several “discrete” legal questions for a client opens the door to an attorney-client relationship on that entire topic, which is not limited unless and until the client understands the risks related to the limitations and what else can be done. In other words, the attorney cannot simply answer the questions presented, knowing that there are dozens of other issues that need to be analyzed to fully advise the client without explaining the inadequate nature of the advice and the risks of reliance. So, in the above scenario, if the attorney wished to limit the scope of the representation to only sending a letter with the client’s stated grievances without additional research, document review (i.e., the will), and explanation of overall risks, it was imperative that the attorney explain all of the risks of such limitations (including lack of knowledge as to whether there was a no contest clause) and “reasonably available alternatives.” Commonly overlooked in the limited scope analysis, however, is that any limitations must also be reasonable. This means that just because the attorney and client agree to a limitation does not mean that the attorney is in compliance with the ORPC or meeting the applicable standard of care if a malpractice action arises. The comments to ABA Model RPC 1.2 provide some direction pertaining to when limitations are not reasonable. Comment [7] states in pertinent part: If, for example, a client’s objective is limited to securing information about the law the client needs in order to handle a common and typically uncomplicated legal problem, the lawyer and client may agree that the lawyer’s services will be limited to a brief telephone consultation. Such a limitation, however, would not be reasonable if the time allotted was not sufficient to yield advice upon which the client could rely. Although an agreement for a limited representation does not exempt a lawyer from the duty to provide competent representation, the limitation is a factor to be considered when determining the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. Thus, non-compliance with the ORPC may provide context for the standard of care in a legal malpractice action. For example, if an attorney argues that they were not negligent because their representation was limited, evidence of how an attorney limits the scope of representation, and what limitations may be reasonable under the circumstances is appropriate. See, e.g., Kidney Ass’n of Oregon v. Ferguson, 315 Or 135, 142 n.12 (1992) (summarizing the common rule across the country “that a lawyer’s violation of disciplinary rules does not, in itself, establish the lawyer’s negligence” but the Rules of Professional Conduct
11 Trial Lawyer • Fall 2023 can potentially be used to educate a fact finder on the standard of care or duties owed by the attorney). Clients generally go to attorneys for what they do not know about a legal situation and may not even know what questions to ask, which is precisely why attorneys are required to have informed consent to limit the scope of representation. Simply because a client did not explicitly ask the attorney to perform a task, does not mean it is not within the scope of representation. It is incumbent on the attorney to define, and if necessary, limit the scope of representation consistent with the ORPC, otherwise the attorney may be responsible for harm to a client from an unintended relationship. If all else fails, blame the client Many legal malpractice defendants also seek to blame their former clients for the poor result by alleging that the client was comparatively at fault for the harm. However, many of the purported “comparative fault” defenses are simply allegations of a failure to mitigate damages in disguise. The importance of the distinction between these defenses cannot be understated, especially in the context of a legal malpractice case. For example, a client seeks their attorney’s representation on terminating a lease agreement because the client does not want the lease to renew. The attorney determines that the client must give notice of termination at least six months prior to the end date or it automatically renews for another five years. The attorney sends the notice of termination only five and a half months prior to the end date. The client is harmed because they are required to buy out the remainder of the renewed lease term. To support a comparative fault (or contributory negligence) defense in the context of a professional malpractice case, the aggrieved client must (1) be negligent and (2) cause or contribute to the negligence of the attorney (and the resulting harm to the client). See Son v. Ashland Cmty Healthcare Servs., 239 Or. App. 495 (2010).1 The Court of Appeals explained what kind of conduct may lead to comparative fault in Son in the context of a medical malpractice case, [A] plaintiff’s negligent conduct can form the basis of a comparative fault defense when it relates and contributes to the negligent treatment at issue in the malpractice claim. We recognized examples of such conduct, including (1) failing to follow medical instructions, (2) refusing or neglecting prescribed treatment, or (3) intentionally giving erroneous, incomplete, or misleading information which is the basis for the medical care or treatment. Id. at 290-91. Applying these principles to the above example, if the client failed to give their attorney a copy of the lease or instructed the attorney that the lease ended three See Legal Questions p 12 We are thrilled to extend our heartfelt congratulations to Johnston Law Firm’s Senior Counsel, Rob Kline, on his well-deserved election as President of the Oregon Trial Lawyers Association (OTLA). Rob’s dedication and exemplary service to the legal community shines brightly, making this new leadership role a fitting recognition. Here’s to a successful tenure as President! CONGRATULATIONS, ROB! www.johnston-lawfirm.com Attorneys Marc Johnston (left) and Rob Kline in Johnston Law Firm’s mock courtroom Johnston Law Firm has proudly served injured Oregonians for 14 years. When you work with us, you have a tenacious personal injury trial team with a combined 43 years of experience that is seasoned and prepared to maximize client and case results. Bicycle Crashes Personal Injury Pedestrian Injuries Workplace Injury Wrongful Death Motor Vehicle Collisions Trucking Collisions
12 Trial Lawyer • Fall 2023 months later then it did, that could support a comparative fault defense. There must be some negligent action by the client that caused or contributed to the negligence of the attorney. In contrast, if after the attorney missed the deadline to send the notice of termination, the client could have bought out the lease for $500,000, but chose to litigate the matter, leading to various litigation costs of $300,000 and a $1,000,000 verdict. The attorney could argue in the subsequent malpractice action that the client failed to mitigate their damages because they could have resolved the issue for $500,000 in contrast to $1,300,000. The importance of properly identifying and correcting the defense can be instrumental in avoiding juror confusion and potential reversible error. If a comparative fault defense is allowed, a verdict form requires the jury to determine the damages, then apportion fault between various parties (including the plaintiff). In contrast, if the jury is considering a failure to mitigate defense, this simply goes to the determination of total damages. There is no apportionment between parties. In the example above, imagine if the jury is instructed on comparative fault rather than failure to mitigate damages. The client’s conduct did not cause or contribute to the initial injury, but if the total damages are alleged to be $1,300,000 and the attorney argues that the client is “comparatively at fault” for $800,000 of that amount it could lead to an improper defense verdict because the plaintiff would be considered 62% “at fault.” This concept goes beyond legal malpractice and professional malpractice generally, in that it could be utilized improperly in nearly any negligence case. Conclusion As attorneys, we are always looking to provide the best representation Legal Questions Continued from p 11
13 Trial Lawyer • Fall 2023 possible for our clients. But more is not always better. Just as an attorney should not be giving medical advice, a personal injury attorney may not want to answer questions about taxes or bankruptcy and vice versa. But if you do dabble, it is imperative to be clear on the boundaries of any advice given and to make sure the client is fully informed of the risks. Kirc Emerson represents plaintiffs in legal malpractice cases and specializes in figuring out complex legal issues on all kinds of matters. He is a partner in the firm Allegiant Law, 100 SW Main St., Ste. 400, Portland, OR 97204. Emerson contributes to OTLA Guardians at the Rising Star level. He can be reached at 503-517-8202 or kirc@richardsonwang.com. 1 Most of the case law in Oregon surrounding comparative fault defenses professional malpractice relate to medical malpractice actions. See, e.g., Son v. Ashland Cmty Healthcare Servs., 239 Or App 495 (2010); See also Gardner v. Oregon Health Sciences Univ., 299 Or App 280 (2019).
14 Trial Lawyer • Fall 2023 By Rob Wilkinson OTLA Guardian My client, Jane, bought a newer house in a small town outside Salem. She thought she would be spending her days taking care of her family, home and garden. As it turned out, she was wrong. Instead, Jane had to take a deep dive into construction defect litigation. And she had to spend way too much time with me. What Jane did not know was the house she bought, and a lot of the homes in the same neighborhood, had been constructed on clay soil. The clay soil would expand when it was wet and then shrink when it dried out. That meant Jane’s house rode this clay wave through the seasons. Parts of the house would go up at times, and parts would go down. For example, a level survey would show Rob Wilkinson one corner of the house three or four inches higher than the opposite corner. Doors would stick, and windows wouldn’t open or latch. The sheetrock of the walls and ceilings was covered in cracks. The concrete porch and steps separated from the house, and the driveway and garage floor developed deep fissures. Jane’s house could be fixed, but it was not an easy process. The repair involved underpinning the foundation so the house was no longer supported on the clay soil, and demolishing and repouring the concrete steps, driveway and garage floor. It was expensive and disruptive for those living in the home. Who was responsible for this problem? Jane and I talked a lot about this question. We consulted experts, and we determined this was a problem caused by both construction contractors and geotechnical engineers. Once we figured out who might be responsible, we had to work through the steps needed to prove professional negligence. We would have to prove the defendants conducted themselves in a way that fell below the standard of care for similar professionals. Although this is in many ways like bringing a negligence claim against any other kind of professional, there are some special factors that apply only to construction defect negligence cases. Because Jane did not purchase her home directly from the builder of the home, she did not have any kind of contract claim available to her. Instead, her only claim against the original builder had to be a negligence claim. Similarly, Jane did not have any kind of contract with the original geotechnical engineer signing off on the development and construction of the home. That claim too had to be negligence. The Oregon advantage Luckily, the house is in Oregon. Unlike many other states such as Washington, a homeowner in Oregon can allege a claim for negligent construction against anyone, regardless of privity or contract. It took a while to cement this into law in Oregon, but with cases such as Abraham v. T. Henry Construction, and Harris v. Suniga, the law is now clear that privity is not required for a construction defect PROFESSIONAL NEGLIGENCE IN RESIDENTIAL CONSTRUCTION DEFECT CASES
15 Trial Lawyer • Fall 2023 See Residential Construction p 16 negligence case so long as the damage is something other than “pure economic loss.” Since the Bunnell v. Dalton case, it is even possible for an owner to sue a contractor or architect for negligent construction despite having knowledge of the defects at the time of purchasing the home. So, for Jane, the law allowed for a negligence claim, but we still had to prove the claim. That meant showing that a defendant, whether the contractor or geotechnical engineer, or both, violated a standard of care. What is that standard of care for these defendant professionals? In general, case law instructs us that the contractor or design professional must exercise reasonable care to avoid foreseeable harm by performing work in a workmanlike manner and in compliance with the building codes and other applicable laws. Unfortunately, it is not always easy to establish what the standard of care really is for construction. Proving the standard The standard of care can be established by showing the approved practice in the industry. Sometimes this is shown by reference to trade publications, published industry standards, and sometimes manufacturer installation instructions are used. Most commonly, the workmanlike standard is proven through the use of expert witnesses. I retained an expert in Jane’s case just as I do on every construction defect case. For my client, that meant having the home inspected by an expert, and having the expert ready to testify as to the standard of care and the breach of that same standard. The expert can then refer to various publications and standards. For example, if my expert is ready to testify about the defective installation of masonry, they may refer to installation guides of the Brick Industry Association. Because Jane was looking at geotechnical engineering issues as well as “standard” construction defects, it meant having two experts in her case. The building exterior could be assessed by an expert knowledgeable in that field, but the geotechnical engineering issues had to be reviewed by an engineer qualified to do that sort of analysis. The discussion of the standard of care is not cut and dry. In fact, the experts on the defense side of my client’s case were not automatically going to agree with my experts as to the standard building practices at issue. It is very common for the experts on each side of a construction defect case to cite different practices, printed materials and building standards to support their arguments about the standard of care. The code The building code can be really useful in construction defect negligence claims. Although the building code may not specifically address every kind of construction issue, it can provide the framework to allege a negligence per se claim against a contractor or design professional. A negligence per se claim is just a way to prove negligence using a statute or ordinance to establish a rebuttable standard of care. It does not have to be a cause of action distinct from a traditional negligence claim. To set up this claim for my client, I was able to allege that the defendant contractor violated specific provisions of the building code, the plaintiff was injured due to the violation, the plaintiff was meant to be protected by the code (a homeowner fits the bill), and the injury was of a type the code is meant to prevent (damage to a home and homeowner). This type of negligence per se claim also works for tenants, such as in Eduardo v. Clatsop Cmty. Res. Dev. Corp. There, a tenant had a negligence claim against the landlord for the tenant’s personal injuries and successfully used the violations of the building code to establish unreasonable conduct and negligence per se. Economic losses Unlike personal injury cases, negligence claims in construction defect matters have to contend with the economic loss rule. Generally, for cases without any injury damages to the person, these claims require some element of property damage or deterioration, absent a special relationship or heightened duty of care. Because my client was a stranger to the builder, there was no “special relationship” or “heightened” duty of care. I had to explain to my client it was really important to identify “damage” resulting from construction defects in order to make the negligence claim. The line between property damage and economic loss is not always clear in construction disputes, and it also blends into the issue of insurance coverage. Luckily for Jane, the defects in construction had caused some property damage including the cracking of walls and ceilings, and the concrete separation and cracking. One extra hurdle Compared to other types of negligence claims, construction defect negligence claims are subject to an extra process. For Jane, we had to comply with the statutory notice of defect process described in ORS 701.565. The statute requires that Jane send the contractor a specific letter, or notice of defect, that must comply with certain rules, and it must be sufficient to put the contractor on notice of the defects. If the owner does not follow the notice of defect statute, the court must dismiss the lawsuit without prejudice. The notice of defect, inspection requests and written reports might be used as evidence in court. Once a contractor receives a notice of defect, the contractor can request an inspection, offer a repair or a settlement, or reject the whole thing. The contractor is also supposed to put subcontractors and others on notice of the claim via “secondary” notices. Under this statutory scheme, the owner is not required to accept any settlement or repair offer
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