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

Pantely v Garris, Garris & Garris, PC, 180 Mich App 768, 773; 447 NW2d 864 (1989)

MI: Underlying uncontested divorce

Student Contributor: Matthew Feinbloom

Facts: A couple was getting divorced so they hired a lawyer to represent both of them in the proceeding. In the report, the woman claimed that she had been living in Livingston County for at least ten days before filing the papers. It became clear to the court that she had lied about this fact and now they attempted to have this modified to show the truth. Because she lied about this, the court that filed the divorce did not have jurisdiction and the divorce was set aside. The woman then filed a malpractice claim against their attorney claiming that he counseled her to testify falsely and then after to have her hire an incompetent lawyer. The first lawyer claimed that she was also at fault and should not be able to profit on the grounds of her on perjury. The newer attorney claims that he had nothing to do with this case because at the time of the perjury he was not even her legal representation. The lower courts agreed and held for the attorneys.

Issue: Can a client who perjures herself recover damages caused by the failed deceit from the lawyer who counselled the lie?

Ruling: The court agreed with the lower court concluding that a client who perjures herself cannot recover damages caused by the failed deceit from the lawyer who counseled her to lie. The court used the maxim, in pari delicto potior est conditio defendentis (in cases of equal fault, the position of the defendant is stronger). The woman was at equal fault here because she knew the truth of the matter and told the lie anyway. The court did not find it right that she should be able to profit from her own lie.

Lesson: If you perjure yourself in court at the counsel of an attorney, you cannot sure him for malpractice afterwards.

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LeBanc v. State Farm Insurance Corporation, 930 So. 2d 296 (La. App. 2006)

LA: Underlying personal injury claim

Student Contributor: Laura Stein

Facts: Clients were husband who was injured in a car accident and his wife. The clients and their hired lawyer, Toce, attended mediation and the matter was settled. After mediation, clients contested the validity of the settlement because they were threatened, coerced and intimidated by their lawyer into accepting the settlement and alleging that he committed malpractice. The defendants in that settlement filed a motion to enforce it and that was granted. After the clients fired Toce, he intervened to collect his fees and expenses. Plaintiffs answered saying he committed malpractice which caused them damage. Toce filed motion for summary judgment which trial court granted and ordered the clients to pay as per their contract. The amount was ordered to be paid from the settlement funds that were deposited into the registry of the court immediately. Clients appealed on the grounds that Toce failed to demonstrate absence of any issue of material fact and failed to controvert their opposition to his motion.

Issue: Does termination of an attorney’s services for cause after he settled his client’s claims affect his rights to payment of attorney fees and expenses according to the contract when they asserted a claim of malpractice against him?

Ruling: Plaintiffs claimed the trial court erroneously held lawyer was entitled to his full contingency fee for representing them, despite the fact that he was fired for cause. He argued that since he was fired after the settlement was reached, he was entitled to the fee provided in his contract with them. This was a matter of first impression. Because the plaintiffs did not present evidence in opposition to Defendants’ enforcement of the settlement and it was enforced, so there is no basis for withholding his fees and expenses. Any amounts they may recover from him for remaining claims are not presently due and so do not serve as a basis for preventing disbursement of the settlement funds.

Lesson: If the underlying case is settled before a lawyer is discharged and then sued for malpractice, he is still entitled to his fee and expenses pursuant to the contract. 

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Oliver v. Towns, 738 So.2d 798 (1999).

AL: Underlying personal injury action

Student Contributor: Farah Shahidpour

Facts: Client hired Attorney to represent her in a personal injury action after being involved in an automobile accident. She signed a contingency fee contract that provided for the Attorney to receive 40% of any settlement, in return for Attorney’s legal services. Attorney settled the case for $12,000. Client filed a legal malpractice action against Attorney alleging breach of contract, fraud, deceit, and misrepresentation. Attorney allegedly failed to inform Client of the settlement, cashed the settlement check without Client’s consent, and failed to transfer any of the settlement proceeds to Client. The trial court awarded Client $500,000 in compensatory damages and $1 million in punitive damages. Attorney made a motion that the judge recuse himself from the case and another motion for a thorough review of the damages and award for excessiveness. The trial court denied both motions. Attorney appeals.

Issue: Whether the trial court erred in refusing to review the question of excessiveness of the damages?

Ruling: Yes. Attorney properly challenged the amounts of compensatory and punitive damages. Under Ala. Code 1975 § 6-11-20, the court must address whether evidence supporting the punitive award is “clear and convincing.” The court has the duty “to require the trial courts to reflect in the record” the reasons for interfering with an award of damage, on the grounds of excessiveness, or refusing to do so. Hammond v. City of Gadsden, 492 So.2d 374 (Ala. 1986).

Lesson: The trial court must hold a hearing to determine whether a damages award is excessive, upon a timely motion including a request for a hearing on a claim that damages awards are excessive. On remand, the trial court will hold a hearing to consider whether the compensatory award is excessive, whether clear and convincing evidence supports a punitive award, and if so whether the punitive award is excessive. 

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Jones Motor Co. v. Holtkamp, Liese, Beckemeier & Childress, PC, 197 F. 3d 1190 (7th Cir. 1999)

7th Cir. IL: Underlying personal injury lawsuit

Student Contributor: Clem Dunham

Facts: The underlying suit had been filed in a state court in St. Clair County and assigned to a judge who we are told, and accept for purposes of deciding this appeal, has the reputation of favoring plaintiffs in personal injury suits. Jones's lawyers negligently failed to make a timely effective request for a jury because they failed to accompany the request with payment of the fee for a jury trial. As a result the case was tried to the judge, who entered a judgment of $2.8 million for the plaintiff; the suit was then settled for $2.5 million. In the present case, the malpractice case, Jones tendered the opinion of an experienced lawyer in St. Clair County that had the case been tried to a jury, the verdict would have been in the neighborhood of $500,000. Jones and its insurer, which paid a part of the $2.5 million settlement, are suing for the $2 million difference.

Issue: Can the loss of a procedural advantage give rise to a malpractice suit even if the advantage was not essential to the protection of the client's substantive rights?

Ruling: No. A malpractice plaintiff cannot prevail merely by showing that his claim which his lawyer booted, though baseless, had some nuisance value. To impose malpractice liability for booting a nuisance suit would—like deeming a plaintiff who obtains a nuisance settlement a prevailing party for purposes of entitlement to an award of attorneys' fees, which courts also refuse to do, simply encourage nuisance suits, of which we have enough already. There is a difference, however, between saying that a claim can be meritorious without its being certain to prevail at trial and saying that one of the parties would have done better than the other, had it not been for the negligence of his lawyer, regardless of the relative merits of the parties' positions. We hesitate to rule out the possibility of convincing an Illinois court to allow a malpractice suit to go forward on the basis of an argument that the plaintiff lost a procedural entitlement even though it was not an entitlement necessary to avert an unjust outcome. But given the uncertainty of harm we think the plaintiff in such a case must do more than the plaintiffs have done here to show that they can prove damages to a reasonable certainty.

Lesson: Even though a client may be correct in asserting that an advantage was lost by its lawyer’s failure to capitalize on a procedural entitlement; courts in Illinois will not permit a malpractice claim to go forward on this theory unless, the plaintiff can prove damages to a reasonable certainty. 

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Trinity Mortgage Companies, Inc. . v. Dreyer, USDC, N.D. Oklahoma, Jan. 7, 2011

Facts: Dennis Junker filed suit against Trinity and others alleging, among other things, breach of contract, fraud, and conversion. Ultimately, the parties entered into a Settlement Agreement whereby Trinity assigned its right to a claim of legal malpractice against its attorneys to Junker. 

Issues: Was the assignment of Trinity's claim for legal malpractice valid and enforceable? 

Ruling: No. 

Under Oklahoma law, the assignment of tort claims is prohibited...the Court finds that the Settlement Agreement results in a de facto transfer of such claims...As evidenced by the clear language of the Settlement Agreement, Junker was assigned a fifty-percent ownership interest in Trinity, which provides him with the authority to vote on corporate matters and make decisions insofar as they pertain to this lawsuit. Specifically, Junker has the "sole decision-making authority" with respect to this lawsuit, including the choice of counsel...Further, Junker's authority is expressly limited to this lawsuit, as he is precluded from making any other corporate decisions for Trinity. Junker's ownership interest also comes without Junker having to assume any of Trinity's existing liabilities. Thus, it is clear from the language of the Settlement Agreement that Trinity gave Junker an ownership interest for the specific and sole purpose of permitting Junker to litigate Trinity's claims against Defendants.

The Settlement Agreement also reflects the fact that Junker has control over the proceeds of this case, as such proceeds will be used by Junker to recover on the $150,000.00 confessed judgment articulated therein...Further, Junker is expressly prohibited from sharing in any other source of income that is potentially developed by Trinity, making this lawsuit his only means to receive money from Trinity...The Settlement Agreement therefore gives Junker control over not only the claims asserted in this lawsuit, but also the proceeds derived therefrom.

The Court held that such an agreement was against public policy, and therefore, void as a matter of law. 

Lesson: The assignment of legal malpractice claims, and arguably even the proceeds therefrom, are prohibited under Oklahoma law. 

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Healy v. Finz & Finz PC, 2011 NY Slip Op 1616, App. Div. 2nd Dept., 2011. 

Facts: The plaintiffs retained the defendant law firm to represent them in the underlying medical malpractice action, in which they alleged that the doctors should have delivered plaintiffs' surviving babies immediately after learning that one of the three fetuses had died, and that the delay caused injury to one surviving child.

The plaintiffs' expert medical witnesses were unable to testify as to when the injury occurred, however, and the trial court held that the plaintiffs could not establish the proximate cause element of medical malpractice. The appellate court affirmed. Shortly thereafter, plaintiffs filed suit against their former attorneys. 

Issues: Were plaintiffs' former attorneys liable for the consequences of the experts' inability to testify to key information? 

Ruling: No. 

The defendant attorneys presented affidavits from medical experts in the legal malpractice action alleging that the injury would have occurred immediately upon the death of one fetus in any event - a position directly adverse to that of their former client in the medical malpractice action. The Court allowed this, and in support of its decision to grant summary judgment to the defendants, provided: 

Attorneys are free to select among reasonable courses of action in prosecuting clients' cases without thereby exposing themselves to liability for malpractice...[T]he firm demonstrated that it could not have proven proximate cause in the underlying medical malpractice action, and [] the plaintiffs failed to raise a triable issue of fact in opposition...

Lesson: In New York, the professional judgment rule can serve as a defense to a claim for legal malpractice alleging negligent selection of experts. Further, the Courts will allow the defendant attorneys to submit expert testimony in the legal malpractice action that is directly at odds with the position they advanced on behalf of their client in the underlying action. 

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Fincher v. Phillips, 2011 Ohio 968, Court of Appeals of Ohio, March 4, 2011.

Facts: Phillips represented Fincher in the negotiation of a plea in the underlying criminal matter. Phillips charged Fincher $15,000. After the plea was entered into and Fincher was sentenced to eight years in prison, he sued Phillips for legal malpractice and alleged that his fee was unreasonable. 

In an affidavit, Phillips provided an expert opinion that his representation had not breached the standard of care, and that the $15,000 retainer was a reasonable fee that was based on his specialized knowledge, professional skill and judgment. Fincher filed a brief in opposition to the motion, but failed to furnish any contrary expert testimony in support of his claim of unreasonable legal fees.

The trial court ruled in favor of Phillips in light of FIncher's failure to produce an expert report. 

Issues: Was expert opinion necessary to contest the reasonableness of Phillips' attorney's fees.

Ruling: Yes. 

The Court of Appelas ruled: 

The determination of legal fees involves several factors including the time and labor required, the difficulty of the issues involved, and the requisite skill needed to provide the legal service. Prof.Cond.R. 1.5. This is not within the ordinary knowledge of laymen. Establishing malpractice for charging excessive fees clearly necessitates expert testimony.

In his motion for summary judgment, appellee provided expert testimony that the $15,000 retainer was reasonable. Appellant's brief in opposition provided no expert testimony or other evidence refuting this claim. Unopposed expert testimony is sufficient to determine that there is no genuine issue of material fact.

Lesson: In Ohio, the former client will not be able to successfully contest the reasonableness of a claim for unpaid attorney's fees without expert testimony. 

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Morrison Cohen LLP v. Parrish, Supreme Court, New York County, February 9, 2011. 

Facts: The Plaintiff law firm filed an action to recover unpaid fees for legal services allegedly performed for the benefit of Defendant Parrish. Parrish argued that plaintiff seeks fees that were not authorized, fees that were excluded from plaintiffs proposed "litigation plan," fees "for activities not required nor requested," and that plaintiff engaged in unnecessary discovery which "generated well over half of what Plaintiff has billed." Defendant argues that the "activities covered by the fees sought by Morrison Cohen constitute negligence," and that he is entitled to a hearing to determine whether the fees "constitute fraud."

Issues: Did the Defendant have any valid affirmative defenses to Plaintiff's claim for unpaid legal fees? 

Ruling: No. 

First, the Court held that Parrish did not have a bona fide defense or counterclaim for legal malpractice, since New York's three year statute of limitations for that claim had run. The Court further provided: 

The law is well settled that to defeat a motion for summary judgment on an account stated cause of action for legal fees, defendant client must make a sufficient evidentiary showing that he objected within a reasonable time to the invoices he received from plaintiff, and self-serving, bald, conclusory and unsubstantiated allegations of oral protests or objections do not satisfy this standard...As the court previously determined, defendant's conclusory and unsubstantiated allegations that he objected to and complained about plaintiffs services and fees, are insufficient to raise a triable issue as to whether he in fact disputed plaintiffs statement of account.

Lesson: Failure to timely raise a malpractice claim or object to an attorney's billing practices, preferably in writing, may bar the client's right to defend against a later action for unpaid legal fees in New York. 

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Kopulos v. Scott, Court of Appeals of Michigan, February 2011 

MI: Underlying consultation for Personal Injury Claim; declined representation

Facts: In October or November 2003, Kopulos contacted the defendants attorneys about a potential claim against her landlord for carbon monoxide poisoning. During the consultation, plaintiff referred to a December 2002 motor vehicle accident in which she was involved. After investigating the potential carbon monoxide claim, defendants ultimately declined to represent plaintiff. In September 2008, plaintiffs filed this action for legal malpractice, alleging that defendants failed to advise plaintiff, during the discussions concerning the potential carbon monoxide claim, of her right to pursue, and the time limit for seeking, no-fault benefits for injuries she sustained in the earlier motor vehicle accident. The trial court concluded that plaintiff could not pursue the malpractice action on the ground there was no attorney-client relationship between plaintiff and defendants. Accordingly, the court granted defendants' motion for summary disposition.

Kopulos appealed. 

Issue: Did the Defendant attorneys enter into an attorney-client relationship with Kopulos? Did the Defendant attorneys have a duty to provide any advice with regard to the motor vehicle accident? 

Ruling: No. 

[The Defendant attorney's] recommendation that plaintiff obtain a medical evaluation to differentiate the causes of her ailments was not a "rendering of legal advice" from which this Court can conclude that an attorney-client relationship existed. The parties' conduct in this case was consistent only with a consultation and investigation, not an agreement that defendants would represent plaintiff. Moreover, to the extent that the evidence supports the existence of an attorney-client relationship, it establishes that the scope of that relationship was limited to a potential claim against plaintiff's landlord for carbon monoxide poisoning, not any claims arising from a motor vehicle accident. Although plaintiffs emphasize that defendants were aware of the accident, defining the scope of an attorney's representation and duty by the attorney's mere knowledge of facts that may give rise to a claim is both unworkable and contrary to the contractual nature of the attorney-client relationship.

Lesson: While an attorney-client relationship is not always dependent on a formal contract, the relationship will not be created merely by way of an informal discussion concerning a potential claim regarding which no legal advice/services are ever provided. 

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Higgins v. Mary Thurber NJ Supreme Court (Mar. 16, 2011)

affirming 413 N.J. Super. 1 (App Div. 2010)

NJ: Underlying estate accounting

FACTS: The underlying matter was a probate proceeding where the beneficiaries challenged an accounting filed by the Executor. The challenge sought to contest the Executor’s sale of 2 New York Mercantile Exchange seats in order to pay attorneys fees, which were also contested. During the underlying proceeding there were allegations that the sale of the seats came about as a result of the bad advice of the Executor’s lawyer, Mary F. Thurber, who was primarily interested in seeking to have her fees paid notwithstanding that the value of the seats were experiencing rapid appreciation of value. Their sale to pay her fees, when other arrangements for payment could have been made, was allegedly malpractice and caused enormous financial damage to the beneficiaries. On the eve of trial in the estate matter, the Executor’s attorney moved to intervene in the proceeding to defend herself against the malpractice claim, believing she could prevail. (At the time she was being considered for appointment to the judiciary, which, though delayed, ultimately came about.). The beneficiaries withdrew their malpractice claims and the accounting proceeding was  settled. Then, the beneficiaries filed this legal malpractice action. Thurber moved to dismiss the malpractice action on the grounds that the entire controversy doctrine would bar the re-litigation of the claims. The trial court granted Thurber’s motion to dismiss. The Appellate Division reversed. The Supreme Court affirmed the reinstatement of the malpractice claims against Thurber, who is now a sitting Superior Court Judge.

ISSUE: Does the entire controversy doctrine bar the re-filing of a subsequent legal malpractice action where the malpractice claims had been asserted in an underlying probate accounting action, which then gets settled?

RULING: No. The underlying accounting proceeding addressed the conduct of the executor, not the conduct of the Executor’s attorney. Here, the claims actually pled and prepared for the probate proceedings did not encompass a legal malpractice claim. No affidavit of merit was submitted in support of such a claim. The expert reports that were submitted in the accounting action were framed to address the Executor’s actions, not to support a malpractice claim against the Estate’s attorney.   Plaintiffs did not have a “full and fair opportunity to litigate those claims .” Therefore, it would not be equitable to bar the subsequent malpractice action against the Executor's attorney.

LESSON: The entire controversy doctrine requires the joinder of all claims and parties in a single lawsuit at the pain of any claim not brought being barred in a subsequent action.  Legal malpractice claims, however, are an exception to the doctrine. See, Olds v. Donnelly, 150 NJ 424 (1997).  This malpractice case clarifies that the exception applies to underlying accounting claims in probate proceedings. 

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In re PRB Docket No. 2006-167, 925 A.2d 1026 (Vt. 2007)

VT: Underlying criminal defense

Student Contributor: Eric B. Kang

Facts: Lawyer represented client in a criminal matter and after a jury convicted client, the court imposed a prison sentence. Client then asked lawyer to file an appeal. Lawyer filed the appeal five days after the deadline, and the court dismissed the appeal as untimely. Thereafter, the Prisoners’ Rights Division of the Defender General’s office filed a petition for post-conviction relief alleging that lawyer’s untimely filing of the appeal constituted ineffective assistance of counsel. Lawyer cooperated in that proceeding as a potential witness. Client received another chance to file an appeal and did so. Nevertheless, the court denied client’s appeal on the merits. Client then filed a professional conduct complaint against lawyer, alleging that in filing the appeal, he failed to act diligently and promptly, as per Vermont Rules of Professional Conduct. The Hearing Panel of the Professional Responsibility Board held that missing the deadline to file the appeal did not violate the applicable rule of professional conduct. After the Board dismissed the complaint, the Disciplinary Counsel appealed.

Issue: Did lawyer’s failure to file a timely appeal constitute a violation of the rules of professional conduct?

Ruling: No. The court agreed with the Hearing Panel, which found that “a single isolated act of negligence did not constitute misconduct under the rules.” In re PRB Docket No. 2006-167, 925 A.2d 1026, 1028. Further, the rules are “intended to protect the public from persons unfit to serve as attorneys and to maintain public confidence in the bar.” Id. (quoting In re Berk, 602 A.2d 946, 950 (Vt. 1991)). Here, after realizing he missed an important deadline, lawyer worked to remedy his error with client and subsequent counsel. Eventually, client was afforded his appellate rights. The court took note of lawyer’s efforts to fix his mistake and the availability of remedies to correct the error. Although, depending on the seriousness of the error, a single negligent act or omission may constitute misconduct, the court held that the totality of the circumstances in this case did not raise lawyer’s act to misconduct under the rules. “Attorneys are held to a high standard of conduct, but absent injury or other factors, a single mistake does not show a lack of reasonable diligence or promptness.” Id. at 1029.

Lesson: Everyone makes mistakes, even/especially attorneys. However, if the attorney makes an effort to correct the error and the client does not suffer irreparable harm, the attorney is likely to avoid a violation of misconduct under the rules of professional responsibility.
 

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Great Am. Ins. Co. v. Dover, 456 F.3d 909 (8th Cir. Ark. 2006)

AR: Underlying wrongful death

Student Contributor: Meghan Jean

Facts: Darren O’Quinn and David Couch represented Advocat Inc. in the wrongful death of Margaretha Sauer at Rich Mountain Nursing and Rehabilitation Center. Great American Insurance Company insured Advocat. Although O’Quinn and Couch had estimated a potential verdict of $400,000 and $600,000 in compensatory damages and $1.8 million in punitive damages, the trial court awarded the plaintiffs of the suit a total of $26 million in both compensatory. Great American sued the attorneys for inadequate representation.

Issue: Whether a third party, in the state of Arkansas, may bring a malpractice suit against an attorney with whom he or she does not share a privity relationship.

Ruling: No. Under Arkansas law §16-22-310, only those with direct privity with attorneys may file legal malpractice actions. However, there are two exceptions in which case a third party might bring a suit against an attorney:

1. If the attorney’s conduct is fraudulent and intentional; or
2. If the third party is a beneficiary of the attorney’s services.

In asserting the above exceptions, it is imperative that in order for the third-party to recover from a malpractice suit against an attorney with whom he does not have a privity relationship, the attorney must identify him or her either personally, to the client, or in writing, that the third party was entitled to rely on his or her professional services. There was no such intention shown in this case.
In addition, while “equitable subrogation works to prevent the unjust enrichment of parties, including cases such as these where one becomes liable for the debt of another,” it is inapplicable in this case. Because public policy shields attorneys from legal malpractice suits from third parties, the allowance of an equitable subrogation claim for one with whom the attorney owed no privity would undermine the law.

Lesson: Under Arkansas law, an attorney must make clear and certain to whom his or her privity relationship lies. The merging of the lines between a client and third-party and the duty owed to one over the other, may in fact lead to a heightened duty of care to those whom the attorney might not otherwise have a privity relationship. Here, the insurance carrier sued its designated defense counsel who allegedly defended the carrier's insured inadequately.  

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Hedinger & Lawless, LLC v. Betal Enterprises, Inc., Superior Court of New Jersey, App. Div., March 10, 2011. 

Facts: Defendants sued Hedinger & Lawless for legal malpractice for, among other things, failing to file an answer and third-party complaint. Defendants claimed that as a result of this alleged failure, a default judgment was entered against them which prohibited them from obtaining loans for new business ventures. 

In support of their theory against their former attorneys, Defendants submitted an expert report of William H. Micheslon, Esq. The expert opined, in part, that Plaintiff attorneys "should have filed an answer, and on the eve of expiration of the ninety day period, file[d] the third-party complaint...to slow [the adversary's] case down and to [] improve bargaining power." The expert conceded, however, that had Defendants' former attorneys followed this course of action, the adversary in the underlying action would have eventually succeeded on a motion for summary judgment. 

The trial court rejected the opinion as a net opinion because it was based solely on "personal opinion of strategy."

Issues: Was the trial court correct in excluding the expert report as a net opinion? What must an expert rely upon in opining on a claim for legal malpractice? 

Ruling: The Appellate Division agreed with the trial court. First, it explained the need for an expert report in certain legal malpractice cases:

Expert testimony is required in cases of profesional malpractice where the matter to be addressed is so esoteric that the average juror could not form a valid judgment as to whether the conduct of the professional was reasonable.

***

Strategic decisions tend to be an area where expert testimony is required. 

With regard to the inadequacy of the report proffered by Defendants' expert, the Court noted: 

The burden of proving the causal relationship rests with the client and cannot be satisfied by mere conjecture, surmise or suspicion. 

***

An expert's opinion must be based on facts, data, or another expert's opinion, either perceived by or made known to the expert, at or before trial...An expert is required by this rule to give the why and wherefore of his or her opinion, rather than a mere conclusion. 

***

Not only was [the expert's] opinion not based on standards accepted by the legal community, but his strategy of delay for the sake of delay is diametrically opposed to the duties of an attorney set forth in Rule 1:4-8 and thus cannot support a claim of breach."

Consequently, the Appellate Division affirmed the trial court's Order barring Defendants' expert report as net opinion. 

Lesson: In New Jersey, an expert report must rely upon facts in the record, reference case law, treatises, and/or rules of professional conduct, and identify particular departures in the former attorneys' conduct as compared to the acceptable standards of practice. 

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Rathblott v. Levin, 697 F. Supp. 817 (D.N.J. 1988) 

NJ: Underlying dispute over a will

 Student Contributor: Laura Binski

Facts: Albert Rathblott (the client) died on October 19, 1979. He was survived by his two adult children and his third wife, Elizabeth. Rathblott created his first will in 1963, and in 1973 added a bequest of $10,000 to Elizabeth. In the last week of his life, Rathblott made several changes to his will with the help of his lawyer, Jay Levin. Mr. Rathblott’s final will (executed two days before his death) was challenged by his children  on the grounds that Rathblott lacked testamentary capacity and free will in the last days of his life when the will was executed. His wife Elizabeth, the beneficiary of the will, now sues Mr. Levin for negligence. Elizabeth asserts that although she was successfully granted the $10,000 bequeath, she has lost significant amounts of money defending the contest of the will.  In response, the lawyer moved for the case to be dismissed, saying that he owed no duty to the Elizabeth because there was no privity between them.

 Issue: Should a lawyer be able to use a lack of privity defense when a beneficiary who did not lose her rights under the will but did lose money defending the will sues him for negligence in the drafting of the will?

Ruling: No. Under New Jersey law, a lawyer may be held liable to the beneficiary of a will (even when there is a lack of privity between the two) for negligent drafting when it caused the beneficiary to spend considerable money defending the contest of the will. The Court recognized that in this case, there was a possibility of privity through reliance, which would need to be determined in a trial. As a result, the lawyer’s motion for summary judgment was denied.

Lesson: There is no real difference between a person who loses her rights to half of her estate and a person who loses half her estate defending her rights. A lawyer must take all reasonable measures to avoid the risk of causing economic harm to any person he has a reason to know may suffer as a result of his actions.

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Carney v. Finn, 367 A.2d 458 (1976)

NJ: Underlying Workmen’s Compensation case

Student Contributor: Laura Binski

Facts: In June of 1972, a lawyer handled three claim petitions for the client in the Division of Workmen’s Compensation. The client alleges that the lawyer’s poor handling of the case resulted in the client receiving a lower reward. In January of 1975, the client filed a claim of legal malpractice against the lawyer. The lawyer’s reply to the client’s complaint asserted that the claim was prohibited by N.J.S.A. 2A:14-2, a two-year statute of limitations. The trial judge sided with the lawyer and dismissed the client’s complaint for failure to meet the two-year statute of limitations.

Issue: What is the applicable statute of limitations in this legal malpractice claim?

Ruling: The trial court was incorrect to dismiss the complaint under the two-year statute of limitations. N.J.S.A. 2A:14-1, a six-year statute of limitations, is appropriate in cases of “tortious injury to the rights of another… or for recovery upon a contractual claim or liability.” N.J.S.A. 2A:14-2, the two-year statute of limitations that the trial court relied upon, is only appropriate for “an injury to the person caused by a wrongful act, neglect, or default of any person.” The court reasoned that the two-year statute is only applicable to complaints of physical or emotional injury to the person. Since the client’s complaint is not one of personal injury, but rather of negligent handling of his Workmen’s Compensation claim, the six-year statute should have been applied.

Lesson: This case shows the importance of applying the appropriate statute to a particular complaint. It is necessary to carefully read the language of each statute in order to interpret its meaning. A plain reading of both statutes easily shows that there was no need for the client’s complaint to be dismissed for failure to meet the two-year statute of limitations.  

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Veneri v. Pappano, 424 Pa. Super. 394, 622 A.2d 977 (1993).

PA: Underlying felony conviction case

Student Contributor: Laura Binski

Facts: The client was convicted of two related robberies and sentenced to twenty-five to fifty years in prison. The lawyer was a public defender assigned to the client’s case. The client claims he informed the lawyer that wanted to file a petition for allowance of appeal to the Supreme Court of Pennsylvania. The lawyer did not file the petition, so the client filed it by himself. The client then filed a complaint against the lawyer for negligence in failing to file the petition. The trial court dismissed the complaint and the client appeals.

Issue: Does the client’s complaint state a cause of action in negligence against the lawyer?

Ruling:  No. The three elements for a cause of action for negligence are (1) employment of the lawyer, (2) failure of lawyer to act with ordinary skill and knowledge, and (3) that the lawyer’s negligence was a proximate cause of harm to the client. A client must also show that he likely would have won the underlying dispute. Here, the client did not suffer any real harm. The only harm he might have suffered as a result of the lawyer’s failure to file the petition was his right to habeas corpus relief. Since the client did file the petition, he suffered no real damage as a result of the lawyer’s conduct. As a result, his claim against the lawyer is speculative and does not meet the requirements of an action for negligence. In addition, the client did not make any showing that his claims were likely to be successful. Thus, the client’s case was properly dismissed.

Lesson: Speculative claims of future harm are not enough to rise to a viable cause of action. A client will not succeed in legal malpractice claims when he only asserts a possibility that he might be harmed as a result of the lawyer’s conduct. Also, a client must not forget to assert the likelihood that he would have prevailed in his underlying dispute if not for the lawyer’s malpractice. 

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Reed v. Glynn, 724 A.2d 464 (Vt. 1998)

VT. Underlying Criminal Defense

Student Contributor:  Eric B. Kang

Facts: Lawyer had a contract with the Windsor County defender general to provide representation to indigent defendants in cases in which the public defender was disqualified because of a conflict of interest or was otherwise unavailable. The contract explicitly stated that he would act in an independent capacity, and not as an employee of the state. Lawyer represented client in a probation revocation proceeding. After the court found the client guilty of violating the terms of his probation and sentenced him to 3-5 years in jail, the client sued lawyer because he was dissatisfied in part for not exploring a favorable plea agreement with the probation officer and the state’s attorney. The trial court granted lawyer’s motion for summary judgment, in which the lawyer argued that he was a state employee and thus could not be sued. Client appealed.

Issue: Whether lawyer contracted to provide representation for indigent clients for the state is considered a state employee.

Ruling: No. The court here looked at the definition of “state employee” in Vermont statute, which defined a state employee to include “any elective or appointive officer or employee within the legislative, executive or judicial branches of state government or any former such employee or officer.” 3 V.S.A. §1101(b). Looking at the plain meaning of the statute, the court held that the lawyer did not fit within the definition of a “state employee,” and was neither an “officer” nor an “employee” of state government. The court then noted that under common law, if “the party for whom the work is being done … specif[ies] the result only, and the [party performing the work] may adopt such means and methods as he chooses to accomplish that result, then the latter is not an employee, but an independent contractor.” Reed v. Glynn, 724 A.2d 464, 466 (quoting Kelley’s Dependents v. Hoosac Lumber Co., 95 Vt. 50 (1921)). Here, the court noted that the defender general had no control over the means and methods by which the lawyer provided representation to indigent clients.

Lesson: When lawyers contract for employment with the state, that relationship alone will not convince courts to recognize that the lawyer is a “state employee.” Rather, like any other employment relationship, the courts will look at the nature of the employment and assess whether this was an employee-employer relationship, or the lawyer is an independent contractor.

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Alvarez v. Casita Maria Inc., 269 F. Supp. 2d 834 (N.D. Tex. 2003)

TX: Underlying conviction for illegal reentry into the U.S.

Student Contributor: Megan Diodato

Facts:  The clients, illegal aliens, contacted Casita Maria, Inc. to arrange for immigration counseling services. In the course of that counseling, the clients met with multiple Casita employees, who counseled them to file certain forms and fees with the Immigration and Naturalization Service (INS). An employee of Casita filled out these forms for the clients and afterward an attorney reviewed the forms and opined that they were complete and ready to be filed. Upon advice of another Casita employee, the clients mailed the documents to their local district’s INS. Once the INS became aware of the client’s whereabouts, the INS scheduled an interview with them, which a Casita employee attended. At the interview, the clients were notified that his application to register for permanent residence would likely be denied. The client was later arrested, charged with illegally reentering the U.S., and sentenced to prison. The client alleged that the attorney is liable for legal malpractice in failing to counsel him to submit the correct INS forms and but for this negligence he would not have been imprisoned.

Issue: Whether claims of legal malpractice may be brought where the conviction has not been overturned?

Ruling: No  Under Texas law, claims of malpractice and negligence based on a criminal conviction may not be brought unless that conviction has been overturned. Peeler v. Huges & Luce, 909 S.W.2d 494 (Tex. 1995). In Peeler, the Court held that “as a matter of law, it is the illegal conduct rather than the negligence of a convict’s counsel that is the cause in fact of any injuries flowing from the conviction, unless the conviction has been overturned.” Id. at 498. Although the client’s claims of negligence and malpractice arise from representation in an administrative law setting rather than criminal, the harm to him is the same. Client seeks damages for his incarceration. Convicts may not shift the consequences of their crime to a third party. The client was incarcerated here because he plead guilty to a charge of illegal re-entry, not because of any action or inaction on part of attorney. Attorney’s motion to dismiss granted.

Lesson: Claims of legal malpractice seeking damages due to incarceration, including administrative law settings, may not be brought unless the conviction has been overturned. 

Editors Note: See our post on Padilla v. Kentucky for an update on the US Supreme Court's view of ineffective assistance of counsel. 

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Levy & Craig v. D.S. Sifers Corp., 147 P.3d 163, Kan. App. Div., Dec. 8, 2006

Facts: Defendants brought suit against their former clients for unpaid legal fees. Defendants served their former clients with a set of requests for admissions, which were deemed admitted after plaintiffs failed to answer.  Defendants then proceeded to file a motion for summary judgment. The trial court granted the motion, and Plaintiffs appealed.

On appeal, Plaintiffs argued that the admissions did not establish "that Levy and Craig provided competent legal services and that the fees charged by Levy and Craig were reasonable: 

[Plaintiffs argue] that since the contract was for professional services, the element of performance must incorporate [Defendants'] ethical obligations. Therefore...if [Defendants'] failed to present any evidence that [they] performed the contract competently and charged a reasonable fee, [they] did not establish a prima facie case for breach of contract. 

Issue: Does an attorney have an affirmative burden to establish that services were competently performed for a reasonable fee prior to seeking a judgment awarding unpaid legal fees? 

Ruing: No. 

The contract between [the parties] set forth hourly fees that would be charged...for [the] legal services. [Defendants] provided those legal services to Plaintiffs and billed accordingly for the services provided. [It is not necessary] that in an action to recover for attorney fees under a written agreement, the attorney must establish that the fees were reasonable...[W]hen there exists an express fee agreement for legal services and such legal services have been rendered, the contract establishes the amount of compensation owed to the attorney. An express contract fixing the compensation for an attorney's service is usually conclusive, even if the contract did not bring the results the client had anticipated. 

The Opinion acknowledged that a while a claim for negligence or legal malpractice would impact the Court's determination, it had not been timely raised by Plaintiffs. 

Finally, the Court noted that in an instance where no written retainer existed between attorney and client, the attorney would still be entitled to a "reasonable" fee for services rendered. 

Lesson: In Kansas, a plaintiff would be hard pressed to argue about the "reasonableness" of a fee where a written retainer exists, unless there is a claim for negligence and it is timely raised. 

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Beatty v. Wood, 204 F. 3d 713 (7th Cir. 2000)

Underlying claim: Age discrimination case

Student Contributor: Clem Durham

Facts: Plaintiff, Robert Beatty, was employed with the FAA, Department of Transportation from 1962 until his retirement in September 1996. He was an Air Traffic Manager of Willow Run Tower at Detroit Metro from 1987 to 1995, and in 1992 Dennis Ragle became his supervisor. In 1995, Ragle issued Beatty a performance rating of "unacceptable" for the period from August 1993 to March 1995, and on April 10, 1995, Ragle reassigned him to the position of Program Specialist at Detroit Metro. That position was the same pay and grade as Air Traffic Manager, but Beatty contends that in contrast to the Air Traffic Manager position, it was a much lower profile position with no management responsibilities and no possibility for promotion. Beatty refused to report to the reassigned position when it commenced in June 1995, and claimed medical leave for a year. When the FAA sought further proof of eligibility for medical leave after the year, he chose instead to voluntarily retire. During that same time period, Beatty challenged the reassignment and was represented by his attorney, defendant, Wood. Beatty has brought a legal malpractice action against Wood for failing to timely appeal an EEOC dismissal for age discrimination. The age discrimination claim was determined to be meritless.

Issue: Can a claimant receive damages for demonstrating not that his case was meritorious, but by showing that he could have obtained settlement for the nuisance-value of the suit?

Ruling: No. A legal malpractice cause of action is meant to provide a litigant with damages that he would have been entitled to under law had the case been properly handled. It is not a vehicle for compensating a litigant for the damages that could have been extracted by pursuit of a
meritless case. Under Illinois law an element of a legal malpractice claim is the requirement that plaintiff demonstrate that "but for" the attorney's negligence, he would have prevailed in the underlying action. Lucey, 234 Ill.Dec. 612, 703 N.E.2d at 476. We have already held that the thrust of that requirement is that "a malpractice plaintiff cannot prevail merely by showing that his claim which his lawyer booted, though baseless, had some nuisance value."

Lesson: If the underlying claim does not have merit, plaintiffs  cannot prove proximate cause and damages of the cause of action for legal malpractice.

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Draper v. Brennan, 142 N.H. 780 (1998)

N.H.: Underlying  Employment Litigation

Student Contributor: Jason W. Hake

Facts: A former client commenced a legal malpractice action against the law firm that had previously represented him against a bank. Although the law firm had facilitated a settlement agreement in the underlying litigation, the former client alleged that the loss of his health insurance coverage under the settlement agreement was due to the law firm’s negligence in negotiating and attempting to have the settlement agreement enforced. In particular, the former client had expressed concerns over certain language and ambiguities in the agreement and believed that he and his family would be provided with free medical insurance until he reached the age of sixty-five (65) under the same. However, when the law firm had attempted to enforce the settlement agreement, the Court held that the bank could require the former client to pay a portion of his own medical insurance premiums. Although the client was notified in 1991 that he would be required to pay a portion of his own medical insurance premiums, he waited until 1994 to commence a legal malpractice action against his former attorneys. The trial court determined that the former client’s claims were barred by the applicable statute of limitations and the former client appealed.

Issue: Was the former client’s legal malpractice claims barred by the applicable statute of limitations?

Ruling: Yes. The former client’s claims that arose from the date of the settlement in 1998 were barred by the applicable six-year statute of limitations found in the pre-1986 New Hampshire statute. The latest possible date for the accrual of the former client’s claims was when he was advised that he would have to pay a portion of his medical insurance premiums. However, this claim was barred by the amended three-year statute of limitations found in the applicable amended New Hampshire statute. As a result, the determination of the trial court was affirmed.

Lesson: This is a basic statute of limitations scenario. Do not rely upon ambiguities in the law to bolster your time to commence an action. Seek legal assistance as soon as you feel you have been wronged. 

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Lickteig v Alderson, Ondov, Leonard, & Sween, P.A. 556 N.W.2d 557

MI: Underlying damages for emotional distress in a claim for legal malpractice

Student Contributor: Meghan Jean

Facts: Attorneys were admittedly negligent in the handling of the client, Lickteig’s case. At arbitration, Lickteig was awarded $45,000 in general damages, and $45,000 in emotional distress damages. The attorneys appealed the arbitrators judgment on the award of emotional distress.

Issue: Whether in a legal malpractice suit, a judgment for emotional distress is proper.

Ruling: Not generally. The award for emotional distress is narrow. In order to be awarded under this complaint, it must be shown that the attorney acted negligently or in breach of contract. Extra-contractual damages, including those for emotional distress, are not recoverable for breach of contract except in those rare cases where the breach is accompanied by an independent tort. Where the crux of the complaint is the breaching of a contract or the negligent representation of a client, unless some willful malicious act is done against the client, an award for emotional distress is not justified. Because the client, Lickteig, did not allege any willful or wanton act against her by the attorneys, the trial court’s award of emotional distress damages was improper.

Lesson: Willfully harming your client will not only create a claim for legal malpractice, but will also give rise to damages for emotional distress.

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