Legal Malpractice Law Review : Professional Responsibility Case Summaries & Commentary : Bennett J. Wasserman : LegalMalpractice.com : Lawyer Malpractice & Legal Ethics

Sandford v. Metcalfe, 110 Conn. App. 162, 954 A.2d 188 (Conn. App. 2008)

CT: Underlying estate  matter

Student Contributor: Laura Binski

Facts: Five days before her death, the client called her friend and lawyer, who was licensed to practice in New York, to visit her in Connecticut. The lawyer and client were not relatives. The client insisted that the lawyer draft her a new will to replace the one she had executed in 1962. The lawyer was reluctant, but eventually agreed to draft a handwritten will. The client specified that her estate be divided equally between the lawyer and the client’s handyman. The will did not make any provisions for residual beneficiaries. After the client died, the 1962 will and the handwritten will were submitted to Probate. The heirs at law tried to prevent the handwritten will from being admitted on the basis that the lawyer’s drafting of a will that would give her inheritance constituted the unauthorized practice of law, violated the Rules of Professional Conduct, and was contrary to public policy. The handwritten will was admitted, and the heirs at law appealed unsuccessfully. The court now considers the case to determine if the lawyer’s actions violate public policy.

Issue: Should there be a forfeiture of the bequest to a lawyer who drafted a will on the basis of public policy?

Ruling: No. The law governing descent and distribution is purely statutory, but the legislature has carved out exceptions to these statutes to deprive a supposedly rightful heir, falling within the ambit of those exceptions, of an otherwise unlawful inheritance. There is no statute barring a lawyer who drafted the will from inheriting by the will she drafted. Although the court finds that this lack of statutory exception is ill advised in terms of public policy, there is no bar against the lawyer in this case from inheriting under the client’s estate because the statutory provisions do not prohibit it.

Lesson: The court makes a point that this appeal considers only public policy issues, not violations of the Professional Rules of Conduct. When it comes to matters of public policy, the court will defer to the legislature and take on the view that if the legislature had intended an exception from the statutes, it would have said so. Thus, the court will not “create” an exception to conform to with the judge’s conception of right and wrong.

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Leavenworth v. Mathes, 38 Conn. App. 476, 661 A.2d 632 (Conn. App. 1995)

CT: Underlying will matter

Student Contributor: Laura Binski

Facts: The client hired the lawyer to draft her will. The client wished to distribute $40,000 to one son; $25,000 to her daughter; and two houses to her other son. After the client died, it was discovered that the assets of her estate were insufficient to satisfy the specific bequests of her will. The client’s beneficiaries sued the lawyer alleging several counts of negligence including failure to inquire into the amount and nature of the client’s assets and failure to address conflicting provisions in the will. The lawyer filed a motion for summary judgment on the basis that he owed no legal duty to the beneficiaries to ascertain the assets of the client’s estate. The trial court upheld the summary judgment motion. The beneficiaries appealed, arguing that the lawyer is liable for his failure to inquire into the nature of the client’s assets and his failure to make a provision in the will to fund specific bequests in the event the client’s assets were insufficient.

Issue: Does the lawyer owe a legal duty to the beneficiaries other than to prepare the will as requested by the client?

Ruling: No.

“It is the lawyer’s obligation to use the care, skill, diligence, and knowledge that a reasonable, prudent lawyer would exercise in order to draft the will according to the wishes of the client.”

Lawyers are generally not liable to persons other than their clients for the negligent rendering of services. In this case, the beneficiaries have provided no support for the theory that a lawyer owes a duty to beneficiaries to ensure the existence of testamentary assets when drafting a will. Thus, the lawyer is not liable for failure to ensure the assets were available and does not have to pay for the assets himself.

Lesson: A lawyer’s principle obligation in drafting a will is to draft in accordance with the client’s wishes, keeping in mind the best interests of the client. Claims of malpractice in will cases generally focus on errors in the drafting and execution of wills. Here, the lawyer drafted the will according to the client’s wishes, and thus is not liable to the beneficiaries simply because he did not ensure that the client actually possessed the assets she bequeathed to them. 

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Celentano v. Grudberg, 76 Conn. App. 119, 818 A.2d 841 (Conn. App. 2003).

CT: Underlying breach of contract claim

Student Contributor: Laura Binski

Facts: The client was a principal and owner of a corporation that operated landfills. The client and the dumping company had entered into a contract in 1985. Specifically, the client believed that the trucks operated by the dumping company were dumping trash at times not allowed in their contract. The client hired the lawyer to represent him in a breach of contract claim against a company that was dumping refuse into the landfills at improper times. Since the 1985 contract contained an arbitration provision, the lawyer strategically decided to institute an action against individuals who were not parties to the contract so that he could gain information through discovery procedures. The lawyer encountered many obstacles and delays, and the arbitration was never completed. The client sued the lawyer for malpractice. The court granted the lawyer summary judgment because the client failed to present expert testimony as to whether the lawyer’s conduct met the standard of care for lawyers doing similar work.

Issue: Were the clients required to present expert testimony to prove their breach of contract claim?

Ruling: Yes. In the absence of an express contract to see the claim through to its conclusion, a lawyer is only liable if his performance fails to comply with the applicable standard of care. If the determination of the standard of care requires knowledge that is beyond the experience of an ordinary fact finder, expert testimony is required. The only exception to the expert testimony rule is when the lawyer’s performance constituted an obvious and gross want of care and skill, or “doing nothing when something was required.” The lawyer in this case did not act with gross want of care or skill because there was considerable evidence at trial regarding the strategies that the lawyer used, the obstacles he encountered, actions that he took, and reasons behind those actions. Thus, the expert testimony exception does not apply here, so the jury would need to hear expert testimony to determine if the lawyer acted with the appropriate standard of care.

Lesson: The rationale behind the expert testimony rule is that “in most cases, determination of an lawyer’s standard of care, which depends on the particular circumstances of the lawyer’s representation, is beyond the experience of the average layperson, including members of the jury and perhaps even the presiding judge.” In addition, a lawyer-client relationship does not include an implied promise to see a case through to conclusion. The fact that the lawyer did not see this case through to its conclusion is not necessarily evidence that he acted with gross disregard of the case while he was representing it.  

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Aykan v. Goldzweig, 238 N.J. Super. 389, 569 A.2d 905 (N.J. Super. L. 1989).

NJ: Underlying matrimonial action

Student Contributor: Laura Binski

Facts: The client hired the lawyer to represent her in a matrimonial action, specifically a property distribution agreement and divorce by reason of extreme cruelty and battery. Two weeks after the property settlement agreement was signed in 1981, the client attended a divorce law seminar and learned that other effective dates could have been used on the equitable distribution. She told the lawyer about this and he told her not to worry. On August 13, 1982, the client hired a new lawyer who suggested that the first lawyer may have committed malpractice in (1) handling the equitable distribution agreement; and (2) not filing a separate tort claim for battery. Without extension, the statute of limitations would have run on August 2, 1982 for the equitable distribution claim and April 26, 1982 for the marital tort claim.

Issue: At what date should the statute of limitations begin to run on each of the client’s malpractice claims against the lawyer?

Ruling: The court must use the discovery principle to determine the statute of limitations period.

“The discovery principle modifies the conventional limitations rule only to the extent of postponing accrual of the cause of action until client learns, or reasonably should learn, the existence of a state of facts which may equate in law with a cause of action. Accrual will not further be delayed until client learns from a lawyer the legal effect of those facts.”

Burd v. New Jersey Telephone Company, 76 N.J. 284, 291, 386 A.2d 1310 (1978).

As to her first claim, the client was aware in 1981 of all facts relevant to the effective date of equitable distribution. Thus, “discovery” occurred when she attended the divorce law seminar in 1981, not in 1982 when she met her new lawyer. As to her second claim, she may proceed because she had not “discovered” the claim until 1982.

Lesson: The court reasoned that the two claims were not “single and continuous,” but rather “plural and discrete.” The information regarding equitable distribution was of no use to the client in her separate claim for marital tort. Thus, the statute of limitations on the other claim does not attach and the client may use her August 13, 1982 meeting with her new lawyer as the “date of discovery.” 

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Reilly, Supple & Wischusen, LLP v. Malcolm Blum v. Michael P. Ambrosio (NJ App. Div. March 9, 2011 UNPUBLISHED)

NJ: Underlying legal malpractice action

FACTS:  Attorney Blum was sued by a former client   in an underlying legal malpractice action,   which was dismissed on summary judgment eventhough plaintiff had a legal malpractice expert report.  Blum was represented by the Reilly Supple law firm, which now  sues him for unpaid legal fees.  Apparently seeking contribution from another source to help pay those outstanding legal fees in his successful defense,   Blum filed a third party complaint alleging legal malpractice  against the plaintiff’s legal malpractice expert in the unsuccessful  underlying malpractice case-- Michael P. Ambrosio, a law professor, who had issued the report which could not pass the muster of the summary judgment motion.

ISSUE: 1)  Does the successful defendant in a legal malpractice case have a  right to sue the opposing expert  for legal malpractice where the  opinions expressed by the expert   were rejected by the Court?

RULING: NO.

1. Under NJ law, for a non-client to sue a lawyer, even when that lawyer is on the opposing side, there must be "an invitation to rely and reliance,  [which] are the linchpins of attorney liability to third parties." Petrillo v. Bachenberg, 139 N.J.472, 483-4 (1995); Banco Popular, N.A. v. Gandi, 184 N.J. 161,181 (2005). 

"Far from relying on Ambrosio, Blum successfully opposed Ambrosio's opinion in the underlying malpractice case."

2.  In NJ, the expert witness is protected by the absolute litigation privilege and cannot be sued for the opinions expressed in his expert report.

The court based its decision on  Hawkins v. Harris,  141 N.J. 207 (1995), which adopted California’s  formulation of the litigation privilege, where "the undelrying principles are substantially the same as those underlying the New Jersey privilege":

 The absolute privilege applies to "any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action." Id. at 369. Whether a defendant is entitled to the privilege is a question of law.  

LESSON:  The absolute privilege now applies to the expert witness in legal malpractice cases. Although there are a few cases in other states that appear to offer a different view, the Court  pointed out that there are controls that justify granting the expert witness the absolute privilege which are germane to the legal malpractice expert. Here’s what the Hawkins decision also said: 

Because of their extraordinary scope, absolute privileges "have been limited to situations in which authorities have the power both to discipline persons whose statements exceed the bounds of permissible conduct and to strike such statements from... the record." ... The absolute privilege "does not extend to statements made in situations for which there are no safeguards against abuse." ... ("[I]n strictly judicial proceedings the potential harm which may result from the absolute privilege is somewhat mitigated by the formal requirements such as notice and hearing, the comprehensive control exercised by the trial judge whose action is reviewable on appeal, and the availability of retarding influences such as false swearing and perjury prosecutions * * *.");  

Editor's Note: For examples of where the Court remedied the  broad scope of the absolute privilege of a legal malpractice expert by striking the expert's report or testimony as a "net opinion" see:  Celucci v. Bronstein, 277 NJ Super 506 (1994) and Kaplan v. Skoloff  & Wolfe, 339 N.J. Super. 97 (2001).  

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Ayre v. JD Bucky Allshouse, PC, 942 S.W.2d 24 (Tex. App. Houston 14th Dist. 1996)

TX: Underlying divorce action

Student Contributor: Megan Diodato

Facts:  The malpractice suit arises from a divorce action. The client hired an attorney to enforce a court order against her husband and enjoin his firm in action. The attorney instead negotiated a settlement agreement, which the client approved. However, before the court rendered the divorce final the client requested that the attorney withdraw her consent to the agreement. The attorney failed to do so and client was bound by her consent. The client hired a new attorney and filed a motion for a new trial, which was denied. The client sued former attorney for legal malpractice for failing to withdraw her consent and precluding her from receiving a just division of the marital estate. The former attorney argued that the client’s claim should have been brought during the new trial stage of the underlying divorce action or were issues already litigated during the motion for a new trial. The court ruled in favor of attorney and client appealed.

Issue: Whether the client’s malpractice claims are barred because they should have been brought in previous suit or were issues previously litigated?

Ruling: No. A party cannot bring a second action based on matters previously litigated and on claims that arise out of the same subject matter that could have been litigated in the first suit. Parties may not re-litigate identical issues already resolved in a prior suit. To prevent suit, a party must establish that the parties were adversaries in the first action. There is no evidence that the parties were adversaries during the new trial stage. The party barring suit must also have been a party or connected to a party in the prior litigation. The attorney was not a party, nor in privy during the hearing on her motion for a new trial and withdrew from representing the client after the court entered the final divorce decree. The mere fact that the client based her motion on the attorney’s negligent conduct did not make the attorney an adversary. The client directs the complaint at the attorney’s negligence in failing to withdraw her consent and not on the fairness of the underlying action. The issues decided in the first action, her consent, are not identical to the issue in the present action, her legal representation. The client’s negligence claims did not need to be asserted in previous litigation. When an attorney is alleged to have committed malpractice during the representation of a matter in litigation, there is no injury to client until the underlying suit becomes final. The client did not appeal the underlying divorce decree and therefore her malpractice suit accrued when the trial court denied her motion for a new trial.

Lesson: A malpractice action will not be precluded where the party was unable to raise claims in previous litigation. 

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Byrd v. Bowie, 992 So.2d 1202 (Miss. Ct. App. 2008)

MS: Underlying medical malpractice claim

Student Contributor: Laura Stein

Facts: After attorney-Byrd failed to timely designate a medical expert, in the Bowie’s wrongful death/medical malpractice action, the trial court granted summary judgment for the defendants (against his clients). On appeal, Mississippi Supreme Court affirmed. Clients (Bowies) filed a legal malpractice action and also served requests for admission, upon Byrd, that the negligence of Byrd in the action resulted in their sustaining damages in the amount of $2,000,000. Byrd failed to answer the requests within thirty days as required by Mississippi Rules of Civil Procedure and then Bowie filed a motion for partial summary judgment, which was granted as to the issue of negligence. The judge's order granting partial summary judgment as to Byrd's negligence was reviewed by the Mississippi Supreme Court via an interlocutory appeal and they affirmed. Following the supreme court's affirmance on the negligence issue, Bowie filed a motion for summary judgment with the trial court, arguing that they “established their claim of negligence against the Byrd defendants in this case in its entirety, including actual damages proximately caused thereby, in the amount of $2,000,000.” The trial court agreed and entered a final judgment against Byrd for two million dollars.

Issue: Was there proximate cause?

Ruling: The question became whether Bowie's claim of legal malpractice calls for expert testimony in order to establish that the Defendants breached their duty of care. An attorney who fails to designate an expert by a court-mandated deadline and does not provide any reason for doing so, is negligent as a matter of law. Therefore, Bowie was entitled to partial summary judgment as to the Defendants' liability. For the proximate cause of damages, though, the Court has stated that to recover for legal malpractice, the plaintiff must prove by a preponderance of evidence proximate cause of the injury. The plaintiff must show that, but for his attorney's negligence, he would have been successful in the prosecution or defense of the underlying action. The case was proven through Byrd's admittance that his legal error was the proximate cause of Bowie's damages, albeit the admittance of such proximate cause was established by Byrd's failure to answer or deny the requests for admission. Any matter admitted under this rule is conclusively established, unless the court on motion permits withdrawal or amendment of the admission. The admissions served to establish such proximate cause. The Dissent argued that the majority erred in concluding that Byrd's default admissions, regarding the extent of Bowie's damages, eliminates Bowie's obligation to prove Bowie's medical malpractice case within the legal malpractice case that Bowie instituted against Byrd.

Lesson: An attorney who has a legal malpractice action filed against him should take the proper steps, within the required time, to respond, regardless of what merit the attorney believes the plaintiff has or lacks, to avoid any default rulings.
 

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Smith v. Sneed, 638 So.2d 1252 (Miss. 1994)

MS: Underlying Murder Charge

Student Contributor: Laura Stein

Facts: Smith sued his appointed lawyer, Sneed, alleging he committed malpractice during his representation on a charge of murder. Smith pled guilty to manslaughter and was sentence to 20 years in prison. 3 years later, through a new lawyer, Smith obtained a copy of the autopsy of his alleged victim that showed the victim died of natural causes so Smith’s conviction was set aside and a new trial was ordered and Smith signed a release and was released from prison. Smith alleges his lawyer was negligent in failing to obtain a copy of this autopsy report before advising him to enter a guilty plea to the lesser charge of manslaughter. Sneed moved for summary judgment saying the 6-year statute of limitations had run and also that the release Smith signed released Sneed and others from any and all claims arising out of the case. The trial judge granted summary judgment to Sneed. Smith appealed.

Issue: Whether the Circuit Judge erred in ruling that the statute of limitations ran from the time Smith entered his guilty plea and whether the Release signed by Smith was freely and voluntarily executed was a question of fact, not law and so it was error to grant summary judgment on the issue.

Ruling: Reversed and Remanded for further proceedings as if the motion for summary judgment had been denied. The statute of limitations does begin to run on the date the client learns or should learn of the negligence of his lawyer and this raises factual questions here and questions of material fact existed with regard to the voluntariness of the waiver executed by Smith. Sneed argued at the latest, the statute of limitations period began to run when he was told about the missing autopsy report by a constable at the prison; Smith argued it did not begin to run until he was released from prison because the full extent of his damages was not ascertainable until that date, or at the earliest, when he received a copy of the autopsy report. The court agreed with the trial judge in rejecting the “continuing injury” principle which applies only in situations where the defendant commits repeated acts of wrongful conduct, not where harm reverberates from a single, one-time act or omission. Alternatively, Smith urged the Court to adopt a “discovery” standard for matters of legal malpractice. The Court held that whether the Constable conveyed the contents of the autopsy report in a sufficient manner to put Smith on notice that Sneed was negligent was a factual question for jury determination, not summary judgment. The court also held that regarding the release signed by Smith, he presented facts which could lead a reasonable juror to conclude that the release was not entered into voluntarily and with a full understanding of his legal rights (he denied ever reading it and only signed it to be released from jail). It was inappropriate to grant summary judgment.

Lesson: A client who signs a release stating that he will not file a lawsuit against state defense lawyers must do so knowingly, intelligently and voluntarily. Some states impose a  discovery window to permit a client to discover the lawyer's malpractice note. 

Note: The release of a lawyer by a client for the lawyer's malpractice is prohibited by the Rules of Professional Conduct in most states. 

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Today, we celebrate the 2nd anniversary of “going live”. At the same time, we just  welcomed the 200,000th visitor to our blog. The Legal Malpractice Law Review has become the #1 site for everything you need or want to know about legal malpractice.

We are grateful to all the Lawyers, litigants, Judges, Professional Liability Insurance professionals, law students, law professors, law clerks, even lay people who have come to visit and utilize our resources. While the overwhelming welcome we have received has been wonderful, we would love to receive your comments to help celebrate this landmark event. Just click the "Comments" button on the lower left of this post and send us a few nice words.

In our short history,  the American Bar Association’s Lawyers Professional Liability Committee took note of us and showcased this blog at its conference for 500+ legal malpractice lawyers and insurance industry executives, underwriters, brokers and claims professionals.

One guru of the legal malpractice bar-- whose treatise we would all would recognize, commented that when it comes to educating law students and practicing lawyers, the way we’re doing it at the Legal Malpractice Law Review, is now “the way to go”. A senior New Jersey Law Journal reporter called us “cutting edge.”

We are a totally web based blog, whose goal is to build an easily searchable archive of all of the most important sources and resources in the law governing lawyers. Over the past two years, we have become the “go to” place for law students, law clerks, judges and lawyers conducting legal research in the field.  We post  case summaries, hyperlinked to a copy of the full text court decision. Case summaries are researched and written by senior law students who are focused on studying legal malpractice law in a full semester law school course in the subject. Experienced legal malpractice practitioners and law professors edit the student’s work before posting.

Our archive of  legal malpractice cases covers the entire country and is easily accessible without any cost to our visitors, at any time, day or night, 24/7. All you need is an internet connection, from your PC, Mac, iPhone, iPad, Blackberry, Droid or other smartphone. Our advanced word search engine on the left hand column will get you right to the cases or other resources you’re looking for. In court, in the law library, in your office or on the go, day or night, you know where to find us. We’re here. For you.

So, from the Editorial Board: Thanks for making this 2nd year so successful! And watch for even more in the coming year. 

Legal Malpractice Law Review

Ben Wasserman

Editor-in-Chief

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Bank of New York v. Sheff, 382 Md. 235, 854 A.2d 1269

MD: Underlying Bond Issuance

Student Contributor: Vanessa L. Wachira

Facts: In a complex sale of nearly $50 million tax-exempt revenue bonds held by Prince George’s County involving numerous borrowers, Bondholders (represented by The Bank of New York (“Trustee”)), underwriters and attorneys, Piper & Marbury (“Attorneys”) was assigned the duty of drafting several critical documents. Among these, the Loan Agreement and the Trust Indenture each provided that Borrowers—the health care providers receiving the bond proceeds—would be responsible for filing all financing statements. Financing statements were needed to perfect a lien that Bondholders had placed on Borrowers’ assets as part of a security for repayment. Because the Borrowers included health-care providers located in both PG County and DC, filing was required in both locations. However, Attorneys drafted and circulated only the financing statements for filing in Maryland. Prior to the closing, a binder of all documents relating to the transaction was circulated to all parties; the binder did not contain any financing statements for DC. In 1997, Borrowers agreed to sell certain accounts receivables, which should have been subject to Bondholder’s 1993 lien, to Daiwa-Healthco-2 LLC (“Purchaser”). At some point between June and September of 1998, an analyst with one of the municipal bond funds holding the 1993 bonds became aware of and expressed concern to Trustee about Borrowers’ agreement with Purchaser. On November 20, 1998, he discovered that there were no financing statements on file in DC and that, consequently Bondholders did not have a perfected lien on the assets sold to Purchaser. On November 23, 2001, Trustee filed suit against Attorneys in DC. Finding that Maryland had a substantial interest in having the case litigated there, the DC court dismissed the action. Trustee re-filed in PG County on August 28, 2002.

Issue: Whether Bondholder were barred by the statute of limitations from asserting claims against Attorneys for their failure to perfect a lien on Borrower’s assets.

Ruling: Yes. In Maryland, a claim for legal malpractice must be brought within three years of the date upon which it accrues. Under Maryland’s “discovery rule,” an action is held to accrue, and the statute of limitations begins to run, at the moment a “plaintiff has knowledge of circumstances which would cause a reasonable person in the position of plaintiff to undertake an investigation which, if pursued with reasonable diligence, would have led to knowledge of the alleged cause of action.” Here, Attorneys argued that Trustee had knowledge of the alleged cause of action as early as 1993 when it received the binder of documents which lacked the DC paperwork. The Court, however, determined that, although the claim was statutorily barred, the statute of limitations began to run at some point between September and November 20, 1998 when Trustee was explicitly informed of the missed filing.

Lesson:  Not all states give plaintiffs the benefit of a "discovery rule" to prolong the time period for bringing claims. Check the applicable jurisdictions' rules and cases carefully to make sure. 
 

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Marcus v. St. Paul Fire and Marine Insurance Co., 651 F.2d 379 (1981).

AL: Underlying action based on a professional liability insurance policy

Student Contributor: Farah Shahidpour

Facts: Attorney chose St. Paul, an insurance company, to protect against his professional liability in connection with his legal practice. Specifically, the policy stated that the insurer would be responsible for, “paying all sums which the Attorney should become legally obligated to pay as damages arising out of the performance of professional services for others in the Attorney’s capacity as a lawyer and caused by the lawyer…” Clients gave Attorney money for investment purposes. Attorney agreed to pay back money to clients with interest. Attorney failed to repay money, and judgments were entered against him. Attorney could not pay awards, and clients were forced to initiate parallel actions in state court against St. Paul. St. Paul was granted summary judgment since the obligations did not arise out of the performance of professional legal services as covered by the policy. Attorney filed suit in district court against St. Paul alleging breach of contract in that they wrongfully refused to defend, and did not appear in several suits filed against the former clients. The district court granted St. Paul’s motion for summary judgment against Attorney on grounds of “stare decisis and collateral estoppel, if not res judicata.” The court concluded that this policy did not cover the Attorney in a debtor-creditor relationship, even if those relationships were with former clients.

Issue: Whether there is substantial evidence probative of policy coverage?

Ruling: Yes. Substantial evidence indicated that the judgments rested on obligations arising from the attorney-client relationships rather than in a debtor-creditor context.

Lesson: Regardless of whether summary judgment is proper under the federal standard, in certain circumstances, a summary judgment motion can be denied for policy reasons. Even if it seems that an attorney-client relationship is more like a debtor-creditor one, if that attorney-at-law acts in a fiduciary capacity his conduct can be considered as professional services as one described in the insurance policy above.

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Waldman v. Beck, 101 Conn. App. 669, 922 A.2d 340 (2007).

CT: Underlying personal injury matter

Student Contributor: Laura Binski

Facts: The client hired the lawyer to represent her in a personal injury claim. The lawyer failed to appear in court on behalf of his client on several occasions and the complaint was dismissed with prejudice. The client filed a legal malpractice claim based on the lawyer’s negligence. During a pretrial conference, the client and lawyer agreed upon a settlement of $20,000, to be paid within ninety days. The day after the conference, the lawyer contacted the client to tell her that he no longer agreed to pay the $20,000. The client then filed for the court to enforce the settlement agreement. The lawyer defended himself on the belief that the contract was unenforceable because of his communication refusing to pay the agreed upon amount. The court ruled in favor of the client and ordered the lawyer to pay the client $20,000 within ninety days.

Issue: Did the trial court properly decide against the lawyer in ordering him to pay the client $20,000 in order to enforce the settlement agreement?

Ruling: No. A trial court generally has the power to enforce a settlement agreement as a matter of law when the terms of the settlement are clear and definite and not in dispute. In this case, the trial court’s judgment award against the lawyer was directly in conflict with the terms of the settlement agreement. Thus, the court inappropriately used its discretion by rendering a judgment that contradicted the terms of the settlement agreement.

Lesson: “The court’s authority in these circumstances is limited to enforcing undisputed terms of the settlement agreement that are clearly and unambiguously before it, and the court has no discretion to impose terms that conflict with the agreement.” Janus Films, Inc. v. Miller, 801 F.2d 578, 582 (2d Cir. 1986). If the court enforced a settlement where the terms are unclear or in dispute, the court has gone beyond the scope of its power.

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Ayyildiz v. Kidd, 220 Va. 1080, 266 S.E.2d 108 (Va. 1980)

VA: Underlying personal injury action

Student Contibutor: Karen Dindayal

Facts: Plaintiff, Ayyildiz is a doctor who was sued for malpractice by his patient, Grubb, and won the suit. Thereafter, Ayyildiz filed a motion for judgment against Grubb’s counsel, Edward S. Kidd, Jr., alleging malicious prosecution, seeking damages by way of money spent to defend the medical malpractice action, loss of present and future earnings and profits in the practice of medicine and injury to Ayyildiz’s professional reputation.

Furthermore, Ayyildiz’s motion contained a second count that alleged that Kidd fell below the legal standards of the community in which he practiced and that Ayyildiz incurred damages due to Kidd’s willful or negligent acts.

The trial court sustained Kidd’s demurrer, holding that an action for malicious prosecution cannot be brought from a civil action unless the plaintiff was arrested, his property was seized or there was a special injury.

Issues:

1. Will an action for malicious prosecution in a civil case be maintained where the plaintiff was not arrested, there has been no seizure of property or special injury?
2. Do allegations of loss of earnings and profits, damage to professional reputation and money spent to defend a maliciously prosecuted medical malpractice action constitute special injury?
3. Is Kidd liable for negligence to Ayyildiz arising out of the medical malpractice case?

Rulings:

1. No. In malicious prosecution actions arising out of civil proceedings, the plaintiff must allege and prove an arrest, seizure of property or special injury incurred to maintain said action.
2. No. Ayyildiz’s allegations do not constitute a special injury to sustain an action for malicious prosecution.
3. No. Kidd was under no legal duty to Ayyildiz and was therefore not liable for negligence to him.

Lesson:  A prevailing party has no cause of action against the adverse party's attorney for malicious prosecution. Generally, an attorney’s liability for damages is only to his client,  based arising from some duty owed to the client.

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Summer v. Allran, 100 N.C.App. 182, 394 S.E.2d 689 (N.C.App. 1990)

NC: Underlying separation agreement

Student Contributor: Karen Dindayal

Facts: Plaintiff, Summer retained defendant William J. Allran to prepare a separation agreement with her ex-husband. Allran prepared three drafts of the agreement, and the parties signed the final draft on February 5, 1982.  A few months thereafter, Summer filed suit against her former husband for equitable distribution of marital property, temporary alimony and subsistence, and for the separation agreement to be set aside. The court dismissed the alimony and subsistence claims, and granted the claim for setting aside the separation agreement. In addition, Summer brought an action for legal malpractice against attorney Allran, alleging negligent legal representation, in that Summer lost alimony, reduced child support, and an inadequate share of the couple's marital property.

The trial court granted Allran’s motion for directed verdict and Summer appealed.

Issue: Did the trial court err in granting defendants' motion for directed verdict at the close of all the evidence?

Ruling: No. Allran was entitled to a directed verdict because Summer failed as a matter of law to show actionable negligence.

Lesson: In a legal malpractice action, a plaintiff must show actionable negligence by proving by the greater weight of the evidence that the attorney breached the duties owed his client, and that said negligence proximately caused plaintiff’s damages.

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