Legal Ethics

Fact pattern

After graduating from law school three years ago, Attorney took a job handling personal injury claims as an associate in a law firm. She later left the firm and opened her own solo practice, intending to focus on personal injury matters. To attract clients, Attorney placed the following advertisement on selected websites: “Injured in an accident? You may be able to claim compensation. Our expert and experienced lawyers are recognized specialists in personal injury claims. We have achieved excellent results for our clients. Tell us about your injury, and get free advice, at www.getme$.com.”

Patient saw the advertisement and visited the website. He filled in a text box, which invited the user to give a brief statement of the nature and circumstances of the injury, and promised a quick email response. Patient wrote: “I had a pain in my stomach. The doctor said it was indigestion, but I have now found out that it was cancer, and it has spread.” Attorney read the message that day and replied by email: “Your doctor may have misdiagnosed your illness, so you may have a claim for medical malpractice. You should definitely pursue this. Call our office to arrange a consultation.”

Patient did not immediately get around to calling, so the consultation took place two weeks later. During the consultation, Attorney learned that the original indigestion diagnosis had occurred two years and one week earlier. The state’s statute of limitations for medical malpractice claims is two years from the alleged professional negligence (the possible misdiagnosis), irrespective of when the alleged negligence or injury was discovered.

Therefore, the limitation period on any malpractice claim here had run between Attorney’s email response to Patient and the consultation. Attorney told patient that she could not help him and would, therefore, not take his case, because his claim had already expired. Patient was upset, because he never knew that a claim might become unenforceable after a period of time.

Questions

1. Does Attorney’s advertisement comply with the American Bar Association Model Rules of Professional Conduct (Rules)? Explain.
2. Did Attorney violate any Rules in her handling of this matter? Explain.
3. Has Attorney committed malpractice, and would Patient need to establish any additional facts to prevail in a malpractice suit against Attorney? Explain.