Bowen Buchbinder Vilensky

Archive for the ‘Negligence’ Category

A Jack-of-All-Trades Lawyer is a Master of None
Friday, November 28th, 2014

By Morgan Solomon, Director at Bowen Buchbinder Vilensky Lawyers

28 November 2014

From time to time we hear horror stories of how badly lawyers let down their clients.  But few seem to be on the scale of a Kansas-based lawyer, Dennis Hawver, who the Kansas Supreme Court unanimously ruled to disbar earlier this year.

By way of illustration, during a 2005 murder trial, attorney Dennis Hawver described his client as ‘an experienced and highly street-smart and intelligent criminal,’ as well as ‘a professional drug dealer,’ and ‘a shooter of people.’  He chose to run an argument that if his client had already killed two women in 2003, he would not have left the third alive to be the sole witness at the trial. With representation like that, who needs a prosecutor?

In closing arguments on the same case, Hawver tried using ‘reverse psychology’ and suggested the killer should be executed!

Hawver’s client was found guilty and sentenced to death.  Fortunately for his client, the murder conviction was subsequently overturned and a retrial ordered on the grounds that (unsurprisingly) Hawver had failed to represent his client properly.

It turned out that Hawver had never previously tried a capital murder case, was unfamiliar with court guidelines and, in essence, had no idea how best to represent his client.  At a subsequent disciplinary hearing seeking to disbar him, Hawver appeared in a white, powdered wig and costume dressed as Thomas Jefferson, an American Founding Father.  He had previously said the idea of losing his license to practise law left him untroubled as he had planned to grow vegetables in an aquaponics garden.

This is an extreme example, no doubt, but there is a moral to the tale:  when seeking legal advice, choose someone who specialises in the relevant practice area.  Before engaging a lawyer, make sure they have a track record in successfully representing clients.  And that they are currently active in the required practice area.  There are reasons why lawyers specialise – a jack of all trades, when it comes to the law, is a master of none.

For more about the Dennis Hawver story, click here:

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How Routine Form Filling can Become a Legal Issue
Saturday, January 25th, 2014

By Leslie Buchbinder, Director at Bowen Buchbinder Vilensky Lawyers

25 January 2014

Many companies delegate the filling in of ‘routine’ paperwork to junior staff.  This includes firms such as accounting practices, financial planners and others who may have comprehensive quality control policies, targeting complex and financially significant matters. Ironically, the more mundane matters can sometimes cause the greatest heartache.

One matter which came to the attention of an Australian court concerned a situation where accountants miscalculated the amount of depreciation allowable as a deduction and the mistake was then carried through in succeeding years.  The error resulted in an overstatement of the tax payable and no refund could be obtained for taxes that were paid more than 3 years ago because they were statute barred.   The client successfully sued the accountants, who were  found not only to have been negligent but also to be in breach of their contract. A significant amount of damages were awarded against them.

In a different case, a client provided a partially completed handwritten insurance proposal form which needed to be submitted to the insurance company.   It was later entered by his financial planner via an online platform.  In undertaking this task and providing answers in all the required fields, the employee of the financial planner who filled in the form inadvertently failed to notice  that the client had in the previous 2 years been declined by a number of other insurers.   A subsequent investigation revealed that the insurance policy that was issued to the client by the insurer was in fact based on material non-disclosure.  Instead of being paid out by the insurer, the client found himself being pursued by it for money they had already paid to the client on the grounds of material non-disclosure and fraud.   His response, in turn, was to take steps to recover the losses suffered from his advisers for negligence, breach of contract and potentially misleading and deceptive conduct,  because of the way they dealt with his proposal form.

While most professional service companies are aware of their duty of care obligations to avoid claims of Professional Negligence, it’s also helpful to bear in mind potential exposure to breach of contract. In particular, remember that your exposure to legal or disciplinary action does not always arise from the most complex or financially sophisticated aspects of your work.  Proper quality control processes are critical to ensure that routine form filling does not expose one to legal liabilities.

Click here for the full article in the BBV Media page.

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