II. Considerations on: 1) whether you should handle a legal malpractice case at all; and 2) in evaluating a case against the lawyer who handled the underlying file has these issues.
A. Ethical considerations.
1.6 confidentiality.
1.7 conflict of interest.
Board of Commissioners on Grievances and Discipline, Opinion 2009-3, 2009 Ohio Griev. Discip. LEXIS 3 (June 12, 2009).
Unethical to negotiate withdrawal of disciplinary grievance as a part of a settlement of a civil claim for legal malpractice. Board of Commissioners on Grievances and Discipline, Opinion 2010-3, 2010 Ohio Griev. Discip. (June 11, 2010).
B. You have conflict of interest if:
1. There is a substantial risk that the lawyer’s ability to consider, recommend or carry out an appropriate course of action for that client will be materially limited by the lawyer’s responsibilities to another client, former client, or a third person or by the lawyer’s own personal interest.
2. You are bringing a claim against a firm or lawyer who commonly represents adverse interests in cases you handle.
3. Your own personal hesitations as to how or the fact the you’re bringing the claim may/will affect the lawyer or firm.
4. How would it affect an already existing client
5. You need to give each effected client informed consent confirmed in writing. 1.7(b)(2).
6. Each of the above are issues to consider in reviewing a file.
C. Practical considerations.
1. How do you perceive it will affect your referrals from lawyers who provide you cases.
2. What percentage of your practice do you intend it to be? If you intend it to be a significant percentage, how are you going to get the clients? The more clients you have, the more lawyers you sue, the more firms that may not send you any work and the more firms that you are likely to have a problem with in the future if you should happen to oppose them in a case.
3. What were these considerations, if any, for the case you are reviewing? It probably is not in the file, but it needs to be part of your discovery.
