Question

Sam, a prospective client comes into your office and brings with her a copy of a summons and complaint she was just served with. The papers were hand delivered to her by a process server seven days ago. You and the attorney discuss the merits of the case and determine that you will take her on as a client and prepare an answer. The answer is due in thirteen days. You prepare the answer, the attorney reviews it and gives it to the secretary to file and serve. The answer is now due in three days.

You take off on vacation the following week. Two days later, the attorney runs into a client in Court who mentions the $10k in cash he dropped off last week to the secretary. The attorney never received the money and suddenly realizes why his bank accounts have been short for the past few months. He calls the secretary and fires her. When he gets back to the office later that afternoon, the secretary is gone.
Three months later, Sam comes into your office irate that she was turned down for a car loan because she has a judgement against her. The bank tells her the judgment is from the same person who is named as a plaintiff in the lawsuit she hired you to defend her in. You use your crafty paralegal skills that you honed in your Civil Litigation class and discover that the answer was never filed or served and a default judgement was entered against your client.
The attorney now asks you to research whether the "law office failure" statute will cover him for this, or should file a claim with his malpractice carrier.

Answer 1

As per the given scenario, Sam was served with the summons and complaint seven days ago and your team prepared the answer and submitted it to the court to meet the deadline of 13 days. Later, when the attorney discovered that the secretary stole the client's cash and left the job, he came to know that the answer was never filed and served. As a result, a default judgement was entered against your client, Sam.

Now, the attorney has asked you to research whether the "law office failure" statute will cover him for this or whether he should file a claim with his malpractice carrier.

As a skilled paralegal, it is essential to understand that the law office failure statute provides a mechanism for attorneys to claim relief from certain deadlines, but only in situations where no party's substantive rights are compromised. However, in this case, due to the negligence of the secretary and the attorney's failure to exercise reasonable care in supervising the secretary, the substantive rights of the client were harmed.

Therefore, it is unlikely that the Law office failure statute would cover the attorney in this situation. Instead, the attorney should consider filing a claim with his malpractice carrier as a viable option to pay for damages to the client.

As a paralegal, it is your responsibility to present the research thoroughly to the attorney to help him make an informed decision and advise the client accordingly.