by Structured Settlement Watchdog®
Certain structured settlement experts promote the theory that a legal obligation or duty is created as the result of an attorney retaining that settlement professional. For example:
- "an expert with a legal duty to you"
- " a broker to be held accountable and legally liable to you"
- Shouldn’t your clients, with the assistance of their own qualified expert (who is legally accountable to them) and not the casualty company you have been fighting to settle their claim, be making these choices?
Yet a backhanded comment contained in a recent email between two New York City area structured settlement brokers that I respect, raises an interesting question of duty, obligation and legal liability.
In the words of the broker representing the defense in the particular case:
"And if the plaintiff is not paying you directly, you do not represent the plaintiff, nor may you be liable to the plaintiff for any advice you give him. If a broker receives pay from the commission issued from the funds used to purchase the annuity, then he represents the defense and plaintiff may not hold him liable for his advice. The only reason I am sure of this is because I was involved in a case in Queens Supreme where the plaintiff sued his attorney, his attorney brought in "his" broker into the suit, and the first thing the Court did was to let the plaintiff broker out of the suit because he was not paid by the plaintiff to represent him or to secure financial advice from him".
A copy of the Queens New York Supreme decision to dismiss the plaintiff broker from the third party action has been requested.
- Certainly if the "legal advice" of the defense representative were true would there be any need for plaintiff advisers to carry professional errors and omissions insurance?
- It would be of interest to the structured settlement industry and trial lawyers throughout New York State, to understand the context of the decision in relation to the plaintiff's suit.
- It would be interesting to identify the plaintiff broker in question to determine if the broker's advertising emphasized "legal obligation" and "legal duty" as a hook and then "high tailed it outta there" after he/she was sued by the person that brought 'em to the dance.
As someone who in the majority view, firmly believes that a plaintiff should be represented by a qualified financial professional, I also believe that the professional SHOULD be accountable in the event of negligence.
- It seems that the defense representatives perspective is the structured settlement transaction itself, not what planning leads up to it or the "meeting of the minds" that causes it to happen.
- It would be worthwhile for the National Structured Settlement Trade Association which represents all interests to obtain the decision and to provide its own legal analysis of this issue.
- It would also be worthwhile for the Society of Settlement Planners to do its own analysis.