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Can absents of a nondisclosure agreement let an Elder-law of MI,firm off the hook, for there employee's abuse of their clients?

Westland, MI |

Legal Malpractice? Elder law of Mi had an intake specialist who had first contact with their client's/victim's. This woman than used that privileged info to seek out & prey on the elderly. In discovery this law firm claimed they didn't have a non disclosure agreement. In the woman's deposition, she stated otherwise, Can this one document let the firm off the hook?

Attorney Answers 5


  1. Best answer

    Absolutely not! Whether a non-disclosure document was signed as a condition of employment, or not, there is a duty of confidentiality between the lawyer, the law firm and any employee or outside person/company that has access to the client's information.

    The "cause of action" (an act which creates the legal right to sue) may be malpractice, provided the damage (loss) to the individual occurred as the result of "advice", received from any of the above, which influenced the individual to do, or not do, something that caused the damage/loss.

    It doesn't sound like the lawyer/firm suggested that the individual allow access to the woman, for example to help pay bills, therefore, under the description above it does not appear to be "malpractice", in the strict sense of the word.

    However, employers are liable (responsible) for damages caused by their employees, although they may not be liable (to blame) for crimes committed by their employees.

    If the woman's actions meet MI's definition for a crime, such as fraud, theft, elder abuse, etc., and the lawyer/law firm knew, or should have known, that she was not trustworthy and yet allowed actual, or negligent (unintended), access to the private information of the client, then the lawyer (including other individual owners of the partnership) 'may' also be charged with the same (or a lesser included form) crime as the woman.

    The situation you describe includes many variable answers to your question, depending upon the facts, and the relationships between each of the parties to each other, i.e., are you a relative, has the woman been inappropriately involved in the lives of other elderly individuals, were her alleged criminal actions reported to the authorities, etc.

    Rather than focusing on the malpractice question, it would seem that your attention might be more appropriately directed at the possible criminal questions you present. Were the actions of this woman reported to the police or the state bar association? Was the individual competent to make decisions, or would his decision be considered "elder abuse" due to the influence of the woman?

    If formal "discovery" is in process, then it would seem unusual if the attorney(s) involved did not already address/report any crime(s) or ethical transgression. And, if you are a damaged party/relative, it seems odd that you are not asking for clarification from the attorneys on your side.

    As a caveat, be careful to use restraint when discussing your opinions about the "alleged" wrong-doings of another. Otherwise, in the future, you may find yourself reading answers pertaining to defamation.

    Barbara Bangs is a licensed attorney, in California, who also earned a Masters Law Degree in Taxation. Any legal information contained in this answer is specific to individuals who are seeking (or have) Medi-Cal and may not be applicable in other State-specific situations, or to other areas of law. Anyone reading this answer should seek the advice of an attorney in their own State or in the area of law applicable to their question.


  2. Legal malpractice occurs when a lawyer doesn't provide at the least the minimum standard of legal work to be expected of other similarly situated lawyers in the applicable locale and the client suffers damages as a result. To determine whether a particular set of circumstances constitutes legal malpractice, many factors must be considered. If you've had discovery, you must have a lawyer so consult your lawyer for specifics. I don't see where a firm would not have committed malpractice merely because there was no non-disclosure agreement.

    Lawrence Friedman, Bridgewater, NJ. Certified as an Elder Law Attorney by the ABA approved National Elder Law Foundation, former Chair NJ State Bar Association Elder and Disabilities Law Section, Member Board of Consultors of NJSBA Real Property, Trusts & Estates Law Section, Vice Chair Special Needs Law Section of National Academy of Elder Law Attorneys, and Master of Laws (LL.M.) in Taxation from N.Y.U. School of Law. Visit SpecialNeedsNJ.com for articles and Q&A on elder law, special needs, wills, trusts, estates, and tax. Visit SpecialNeedsNJ.com/blog and subscribe for free timely updates to be delivered to your inbox. Information on both Avvo and SpecialNeedsNJ.com does not constitute legal advice, as it is general in nature and may not apply to your situation or be subject to important changes. No attorney client relationship exists unless set forth in written engagement terms.


  3. Attorneys are bound by certain ethical rules when it comes to client information. One of the principal duties of an attorney is to keep their client's secrets. That duty applies to their employees as well. Under the ethical rules, non-disclosure agreements aren't needed. In fact attorneys generally need a client's permission to disclose confidential information. The first questions would be whether there was an attorney/client relationship and whether there was a reasonable expectation of confidentiality. Whether a breach of an ethical duty constitutes malpractice is a different issue. It is difficult to tell from your fact summary what actually.

    Responses provided on Avvo are for general informational purposes only, based upon the limited information that is provided, and do not constitute legal advice. As such you should consult with your own attorney for specific advice. No attorney/client relationship exists with Kelly S. Davis unless set forth in a written engagement letter. The Wyoming State Bar does not certify any attorney as a specialist or expert. Anyone considering a lawyer should independently investigate the lawyer's credentials and ability, and not rely upon advertisements or self-proclaimed expertise.


  4. Elder Law of Michigan, Inc., is not a law firm. Elder Law of Michigan, Inc. (ELM), a 501(c)(3), is a nonprofit charitable organization.


  5. Since you specifically discuss what was allegedly turned over in discovery, I am wondering why you aren't posing this question to your attorney rather than making what might be considered allegations of serious wrongdoing on a public forum such as this? I'm always troubled when people want to state the identity of a party online when there is no need to do so IF you are genuinely asking a question and I think that you may want to carefully consider how this posting...easily discoverable if you are a litigant against "elder law of mi" might be used by opposing counsel. Just my $0.02.

    It is impossible to give specific answers to questions without meeting and fully discussing all of the potential issues that may not be addressed by your question. The answer(s) provided should be considered general information and are not legal advice. Only after a thorough personal consultation could specific legal advice be given. Viewing this information is not intended to create, and does not constitute, an attorney-client relationship. To enter such a relationship you and I would need to consult in person and form a mutually agreeable written contract of engagement. The answer(s) provided in this forum is intended to educate you and point to issues for you to raise in a consultation with a lawyer of your choosing who is appropriately competent in the field of law that your question concerns and who is duly licensed to practice in the jurisdiction where you live and/or where the events giving rise to your question occurred. You should not take any action that might affect your claim(s) without first seeking the professional opinion of a licensed attorney. There are often strict deadlines for filing suit, responding to a suit or making an appeal and you need to personally consult with an attorney to make sure that you understand and meet those deadlines.

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