NJ Courts Set the Bar Low for Solos – But Will Technology Change All That?

Call New Jersey solo attorney Mark Rinaldi one lucky fellow. Rinaldi narrowly escaped a legal malpractice claim after the New Jersey Appellate Division absolved him of liability for failing to file a timely personal injury suit for a former client who called the office to retain Rinaldi’s service and spoke with a secretary who gathered information but never informed Rinaldi about the call, reports the New Jersey Law Journal. The New Jersey court ruled that the client should have realized that the firm did not intend to take her case when she never heard back from them.  And the court also determined that Rinaldi’s office procedures – which consisted of “requiring his secretary to gather basic information [from a caller] and put the call through to the attorney if he is in the office, or provide him with a typed memorandum about the case if he is unavailable – “are reasonable for a solo practitioner,” and that it “is unrealistic to expect more in such a law practice.”

This case doesn’t make much sense on several levels. First, the firm’s oversight is even worse than the NJ Law Journal piece lets on. According to the actual  appellate decision, the Rinaldi’s secretary asked the prospective client to email photos of the pothole that cause the injury. The prospect sent the photos via four separate emails and sought and received confirmation of receipt from Rinaldi’s secretary and an assurance that she would receive a call.  Moreover, the prospect hardly sat on her rights – she was after all, promised a call – and she waited only  three months for a response from Rinaldi before visiting another attorney where she learned that the 90-day notice for suits against a municipality had expired. Certainly, there are many situations where a client is to blame for a missed deadline – for instance, a client who returns a representation agreement six months late or who calls to schedule a meeting about a PI matter, skips out and then brings a malpractice suit when the lawyer failed to file a claim.  But given the facts – the transmission of photos and confirmation of receipt and promise of a call, combined with a relatively short follow up period, it’s hard to say that this prospect was unreasonable to believe that an attorney client relationship had formed or that Rinaldi was in the process of investigating her case.

Still, even assuming that the court wanted to give Rinaldi a pass, did it have to lower the bar for all clients in the process?  After all, the court essentially established a different – and lower – standard of care for solos. Come on.   In 2016, is it really reasonable for solos to ask their secretary to print out an email with information about a potential client and leave it on the lawyer’s desk?  Is it honestly unrealistic to expect a solo or small firm practice to invest in practice management tools that automate the process of client intake and create levels of redundancy between the attorney and admin staff?  At a time when solos and smalls have the technical capability to do more, why would the court give a pass to solo based on a protocol that was reasonable in 1916, not 2016?

Even beyond existing practice management and CRM tools, there are other technologies on the horizon that could help avoid situations like these. Coincidentally, on the day I learned about this case, I also came across Lee Rosen’s  post about an artificial intelligence powered virtual personal assistant from a company called x.ai that will schedule meetings for users. If Rinaldi had employed Amy (the AI bot) instead of Nancy (the human), he might have been able to speak or meet with the prospective client.

But New Jersey solos have no reason to keep abreast of these kinds of advancements, or invest in tech to streamline their practice because it’s perfectly reasonable for them to rely on quill pens, dumbwaiters and the pony express. Too bad that future generations of clients will suffer because New Jersey judges have their eyes on the past.