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

Russo v. Griffin, 510 A.2d 436 (Vt. 1986)

VT: Underlying commercial transfer

Student Contributor: Eric B. Kang

Facts: Joseph Russo had a paving business in Rutland, Vermont that he wanted to turn over to his sons, Tony and Frank. Lawyer Griffin was hired to help them with the process of incorporation, and he drew up the corporate charter, filed it with the Secretary of State, and arranged the necessary transfer of assets. Further, the annual meetings were held at Griffin’s office. Then, Frank wanted to purchase a laundromat and spoke to Tony about selling his interest in the corporation. The two, along with the elder Russo, met in Griffin’s office to discuss the arrangements. At the meeting, Tony gave a $6,000 promissory note to Frank in exchange for Frank’s resignation as president and transfer of his stock to the corporation. Three months later, Frank went back into the paving business in direct competition with his brother’s corporation. Tony then sued Griffin, arguing that a properly drafted noncompetition covenant would have prevented this from occurring. At trial, Tony introduced expert witnesses who testified that Griffin’s failure to advise the corporation to draft a covenant not to compete deviated from the standard of care required of attorneys practicing in Vermont at that time. Griffin introduced expert witnesses who testified that his conduct did in fact comport with the standard of care expected of attorneys practicing in Rutland, Vermont at that time. The trial court found for Griffin, holding that “those attorneys whose practice primarily was conducted in the Rutland, VT area prior to and during 1978 are more familiar with the standard of care then required of lawyers"..

Issue: Whether the standard of care is based on the  local  community, the state or is it a national standard?

Ruling:  The Court noted that “the ability of the practitioner and the minimum knowledge required should not vary with geography.”  Thus, the Court held that “in selecting a territorial limitation on the standard of care … the most logical is that of the state.”  In Vermont, the rules governing the practice of law is consistent throughout the state, and all attorneys must complete the requirements for admission as established by this Court and administered by the Vermont Board of Bar Examiners in order to practice law.  

“the appropriate standard of care to which is held in the performance of professional services is ‘that degree of care, skill, diligence and knowledge commonly possessed and exercised by a reasonable, careful and prudent lawyer in the practice of law in this jurisdiction.’”

Id. (quoting Cook, Flanagan & Berst v. Clausing, 438 P.2d 865,867 (Wash. 1968). 

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Floyd v. Massey & Stotser, P.C., 807 So.2d 508 (2001).

AL: Underlying business transaction

Student Contributor: Farah Shahidpour

Facts: Client alleged that the firm had breached its duty to Client and had acted negligently in preparing and drawing six checks that were supposed to have been payable to Client. Client also alleged that the firm had failed to discover alterations to the checks in a timely manner and had failed to notify Client of the alternations until one year after the checks had already been issued. In 1997, the firm issued a letter to Client informing Client that the checks had been altered. Client made a written demand for the checks to be reissued. The firm’s reply was made in 1998. Client filed suit in 2000. The firm asserted that Client’s claim was subject to a two-year statute of limitations provision of the Alabama Legal Services Liability Act §6-5-574(a). The firm argued that this provision barred Client’s suit. The trial court ruled in favor of the firm and granted the firm’s motion to dismiss. Client appeals, asserting that his cause of action had accrued in 1998, not 1997.

Issue: Whether the applicable two-year limitations period had expired before Client filed the lawsuit?

Ruling: Yes. Under the accrual approach, the statute begins to run when some injury occurs which gives rise to a maintainable cause of action. The court notes that Client could have sued the firm in 1997 after receipt of the firm’s letter. Client should have known from the firm’s letter that his property rights had been damaged.

Lesson: The time limits imposed by §6-5-574(a) are to be measured from the date of the accrual of a cause of action and not from the date of the occurrence of the act or omission. The cause of action “accrues” and the statute of limitations begins to run when and only when the damages are sustained. This is known as the accrual approach.
In the lead opinion Ex parte Panell, 756 So.2d 862, 865 (1999), Chief Justice Hooper and Justice Maddox advocated the “occurrence” approach. The lead opinion stated that a legal malpractice cause of action accrues and the statute of limitations period begins to run when the act or omission or failure giving rise to the claim occurs, and not when the client first suffers actual damage. 

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Dennis v. Northcutt, 923 So.2d 275 (2005).

AL: #1 Underlying employment discrimination action; #2 underlying legal malpractice action regarding #1.

Student Contributor: Farah Shahidpour

Facts: Client retained Attorney #1 to represent him in an employment discrimination action in federal district court, however, that action was dismissed. Client subsequently retained Attorney #2 to pursue a legal malpractice action against Attorney #1 (“the first malpractice action”). Attorney moved to withdraw himself as Client’s counsel in the first malpractice case. Client pursued the malpractice action against Attorney #1 pro se. The first malpractice action was dismissed. Client then filed another malpractice action against Attorney #2. Attorney #2 filed a motion for summary judgment. The trial court granted Attorney #2’s motion for summary judgment. The appellate court reversed, holding that the discovery exception applied and that Client had filed the legal malpractice claim against Attorney #2 within the six-month window provided by that exception. Attorney #2 filed another motion for summary judgment, which was granted.

Issue: Whether the lower court correctly granted Attorney #2’s second motion to dismiss?

Ruling: Yes, because plaintiff was unable to provide sufficient proof to overcome summary judgment. Client had failed to produce substantial evidence indicating that, but for Attorney #2’s alleged breach of the standard of care, he would have prevailed in either his first malpractice action against Attorney #1 or the employment discrimination action itself.

Lesson: In a legal malpractice case, the plaintiff must show that but for the defendant’s negligence he would have recovered on the underlying cause of action. McDuffie v. Brinkley, Ford, Chesnut & Aldridge, 576 So.2d 198, 199 (1991). To overcome a summary judgment motion in a legal services liability action, a plaintiff must introduce evidence that in the absence of the alleged negligence, the outcome for the underlying case would have been different.
If the liability to damages of a legal services provider is dependent upon the resolution of an underlying action, the court shall upon the motion of the legal services provider, order the severance of the underlying action for separate trial. Ala. Code §6-5-579(a). 

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Bourke v. Conger, US Ct. of Appels, 7th Circ., April 19, 2011. 

Facts: Bourke was convicted of murder in Illinois state court, and after the conviction was turned over on appeal, filed malpractice claims against his defense attorneys. Bourker alleged that defense counsel's voire dire of the jury fell below acceptable standards of care.

Bourke's former attorney's argued that even if they breached their duty to Bourke, he could not establish proximate cause. 

Issue: Did Bourke set forth a valid cause of action for legal malpractice? 

Ruling: No. 

First, the Court stated the elements of a cause of action for legal malpractice: 

A plaintiff asserting a legal malpractice claim based on Illinois law must prove: (1) the defendant attorney owed the plaintiff client a duty of due care arising from an attorney-client relationship, (2) the attorney breached that duty, (3) the client suffered an injury in the form of actual damages, and (4) the actual damages resulted as a proximate cause of the breach.

The Court then explained why Bourke failed to establish proximate cause: 

Bourke depended exclusively on Thomas's expert report to establish the causation element of his claim. While expert testimony is one of the types of evidence that a plaintiff like Bourke could normally rely on to ward off summary judgment, it is well established that an expert report that lacks foundation and depth will be given little consideration by courts. In order for an expert report to create a genuine issue of fact, it must provide not merely ... conclusions, but the basis for the conclusions. As the district court noted, the Thomas report does not support its conclusion that the Appellees' performance during voir dire caused the jury to find Bourke guilty with analysis, facts or reasoning. While the report discusses various ways in which the Appellees could have better represented Bourke's interests (e.g., by using their peremptory challenges, by questioning jurors for their opinions regarding the use of alcohol), this discussion only goes towards establishing that the Appellees breached their duty to Bourke, not causation. The Thomas report fails to identify facts that support its conclusion that the Appellees' alleged errors had any role in causing the jury to find Bourke guilty. This shortcoming prevents the Thomas report from creating a genuine, disputed issue of fact concerning causation.

Lesson: Plaintiff must establish proximate, in Illinois, by showing that "but for" his attorney's negligence, he would not have sustained the actual damages complained of. One way to do it is by expert opinion. However, the opinion must be supported by the "whys and wherefores" of the causal connection between the attorney's breach and the injury or damage complained of. 

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McLeod v. Bankier, Fla. Dist. Ct. of App., 4th Dist., 2011

Facts: McLeod hired Attorney Tew to file a claim against Fidelity for allegedly executing a wrong margin call which led to the liquidation of his account. The case settled and McLeod signed a release in favor of Fidelity. His account balance, however, was never restored. 

In December, 2002, McLeod hired Attorney Bankier who represented him in an unsuccessful NASD arbitration against FIdelity. In November, 2003, Bankier advised McLeod to pursue a malpractice action against Tew and referred him to another attorney who advised that he had no valid action against Tew. 

In 2004, McLeod consulted Attorney Isenberg who again recommended a claim against Tew. McLeod ignored this advice, but ultimately filed a claim against Bankier in 2008 for, allegedly, negligently allowing the two-year statute of limitations for a claim against Tew to expire. 

Issues: Was McLeod's claim against Bankier valid? 

Ruling: No. 

The Florida Supreme Court recognize[s] that "[g]enerally, a cause of action for negligence does not accrue until the existence of a redressable harm or injury has been established and the injured party knows or should know of either the injury or the negligent act.

This case presents three possible scenarios, any one of which results in McLeod's claim for legal malpractice against Elk Bankier being barred. Under the first scenario, if the claim against Tew accrued at the point when he advised McLeod he was no longer going to represent him (March 2000), then McLeod had two years from that date to sue Tew (March 2002). McLeod did not retain Elk Bankier until December 2002, which was beyond the two-year statute of limitations period. Therefore, no malpractice claim against Elk Bankier for failure to file an action against Tew can be shown as a matter of law.

Under the second scenario, the limitations period to file an action against Tew potentially began to run in 2003 when the NASD decision became final. Under this scenario, McLeod would have had until 2005 to sue Tew, and, in fact, he was advised of his potential claim against Tew by at least two attorneys before the expiration of the limitations period in 2005. As such, any action against Elk Bankier based on its failure to commence a proceeding against Tew would have expired in 2007. McLeod did not file his action until 2008.

Finally, even if one assumes that Elk Bankier had an obligation to advise McLeod of his potential malpractice claim against Tew, despite the fact that the firm was retained solely to pursue a claim against Fidelity, McLeod's action against Elk Bankier accrued no later than 2004, which is the latest date that McLeod was definitively advised of the potential claim against Tew. McLeod did not commence his action against Elk Bankier until almost four years later, well beyond the two-year limitations period when he knew or should have known of his claims against his former attorneys.

Lesson: The Florida Statute of Limitations requires that a legal malpractice claim be brought within two years of the time the former client knows or should know of the injury or negligent act on the part of the attorney. 

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Stone v. Greenberg Traurig, LLP, USDC, Arizona, March 21, 2011

Facts: Plaintiff's counsel allegedly filed briefs with the Court and misstated certains facts and conclusions of law. Apparently, Plaintiff's counsel also made misrepresentations at oral argument. Although the Court warned Plaintiff that further misrepresentations could result in sanctions, the misrepresentations apparently continued. 

Further, the Court noted that Plaintiff improperly attempted to voluntarily dismiss its case after Defendants had already made a substantial commitment of time and money. 

Plaintiff maintained that all of the objectionable conduct "lies at the feet of [its attorney], and that it was "affirmatively misled by [it's attorney]."

Issue: Did the Court have the inherent power to sanction Plaintiff or its counsel for their continuous misrepresentations? 

Ruling: Yes. 

The Court explained: 

Federal courts have the inherent power to assess attorney's fees against counsel in response to abusive litigation practices...A district court may impose sanctions if it specifically finds bad faith or conduct tantamount to bad faith...Sanctions are available for a variety of types of willful actions, including recklessness when combined with an additional factor such as frivolousness, harassment, or an improper purpose.

***

[A]ttorney fees and sanctions are by nature collateral to the merits [of a case] and therefore properly within a district court's jurisdiction even after a dismissal under Rule 41(a).

Specifically with regard to Plaintiff, the Court noted that it was a sophisticated business that had previously been involved in litigation. Significantly, the Court further noted: 

In addition, Summit employs in-house counsel. Yet despite this level of business and legal sophistication, Summit argues, incredibly, that it relied entirely upon Mr. Goodman's representations regarding the good faith basis for the allegations in the pleadings and therefore should be held blameless. Summit, however, cannot shift the blame for what it admits is "objectionable conduct" entirely onto counsel. The Court finds that Summit had an obligation to make at least a cursory inquiry into Mr. Goodman's representations in the pleadings and its failure to do so does not excuse it but rather suggests bad faith. Further, at oral argument, Summit stood by and allowed its counsel to make blatant misrepresentations of both the facts and the law.

Consequently, the Court assessed attorney's fees against Plaintiff and its counsel. 

Lesson: Attorneys and their clients may be subject to the Court's inherent power of sanctions for repeated, blatant misrepresentations and other conduct tantamount to bad faith. 

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Oasis West Realty, LLC v. Kenneth A. Goldman, Supreme Court of California, May 16, 2011

Facts: Goldman, and his law firm Reed Smith, represented Plaintiff Oasis in a redevelopment plan involving a nine-acre parcel in Beverly Hills on which Oasis was to build a hotel and luxury condominiums. After two and one-half years, Defendants ended their attorney-client relationship with Oasis, and thereafter, Goldman participated in a referendum that would allow voters to overturn the city council's approval of the project. Oasis asked Goldman to withdraw from this activity, and ultimately sued Goldman and Reed Smith for, allegedly, violating their duties of loyalty and confidentiality. 

Issue: Did Goldman violate any duties to his former client by participating in a civic organization to promote his personal beliefs and interests? 

Ruling: According to the Supreme Court of California-- Yes. 

The Court first explained that an "attorney may not do anything which will injuriously affect the former client in any matter in which the attorney formerly represented the client nor may the attorney at any time use against the former client knowledge or information acquired by virtue of the previous relationship." 

The Court held that "a lawyer's right to freedom of expression is modified by the lawyer's duties to clients...The requirement that a lawyer not misuse a client's confidential information [] applies to discussion of public issues." 

This, in spite of the California Anti-SLAPP statute which protects attorneys (and others) from "lawsuits against public participation...freedom of speech and petition for the redress of grievances."

In support of its holding, the Court reasoned that Oasis had presented a prima facie case that Goldman did use confidential information. The Court didn't answer how, but presented this analysis: 

For example, an attorney may discover, in the course of the representation of a real
estate developer, that city officials are particularly concerned about the parking
and traffic impacts of a proposed development, or that an identifiable population
demographic is especially disposed to oppose the proposed development. Under
the interpretation proposed by defendants and adopted by the Court of Appeal, the
attorney would be free to terminate the representation of the developer and use this
information to campaign (quite effectively, one would imagine) against the precise
project the attorney had previously been paid to promote.

Lesson: Until and unless the United State Supreme Court hears and overturns this case, a California lawyer may be at risk for a malpractice/breach of fiduciary duty suit for exercising his right to freedom of speech in support of his personal civic interests if it is in conflict with the interests of his former client. 

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Robbins v. McGuinness, 178 Conn. 258, 423 A.2d 897 (Conn. 1979)

CT: Underlying real estate matter

Student Contributor: Laura Binski

Facts: The client entered into a contract to purchase land in 1966. The client hired a lawyer to represent him in all aspects relating to the land purchase. The land conveyed was said to contain approximately 9.5 acres. In 1971, the lawyer bought land north of the client’s property. The survey indicated that the land to be bought included about 4.5 acres of the previous client’s land. However, by various transactions, the title to the land bought in 1966 came into the ownership of the client. The client then filed a legal malpractice action in 1972 for negligence and breach of contract. The case was dismissed for failure to meet the statute of limitations. The client also instituted an action to establish boundary lines. That action showed that the plaintiff had received 9.04 acres, which was within the amount of land he bargained for in 1966. The client now seeks to recover his expenses from the prior action that proved that the lawyer was not in error in the title search or description. The client alleges that the lawyer had a continuing duty to warn him that there might have been an issue with the boundary lines of his land.

Issue: Does the continuing duty to warn rule apply to this case in order to overcome the tolling of the statute of limitations?

Ruling: No. The continuing duty to warn rule provides that the statute of limitations may be extended if the lawyer continually failed to notify the client that there was some question about where the boundary line lay and the amount of land transferred. In this case, the negligence claims all pertained to the completed act of the title search that occurred on or before December 16, 1966. Thus, the allegations do not reasonably include claims of continuing conduct on the part of the lawyer after the title search. The continuing duty to warn rule does not apply here because after the property purchase was made, a warning that the boundary was indefinite or that the amount of land was inaccurate would not have affected anything.

Lesson: The client’s breach of contract claim would also fail under the continuing duty to warn rule. Again, since the indefinite or inaccurate title search could not have affected anything, the lawyer had no continuing duty to the client after the transfer of property. Since the lawyer had completed the task for which he was hired (conducting the title search), and had no continuing duty, the breach of contract claim will fail as well. 

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Wright v. Rinaldo, 279 Mich App 526, 533 n 3; 761 NW2d 114 (2008)

MI: Underlying IP

Student Contributor: Matthew Feinbloom

Facts: In August 2000, Mr. Rickie Wright hired  Ronildo as his attorney in a patent case against the United States Patent and Trademark Office. Three years after hiring Ronildo, Wright was unsatisfied with her work. Wright met with other patent attorneys and on December 18th, 2003 Wright signed a document that revoked Ronildo’s power of attorney. At this time Wright also signed the power of attorney over to another lawyer who then took over the case. Wright also instructed the Patent Office that all correspondence was to go through his new counsel. After key errors were made in the pursuit of this patent, Wright filed a legal malpractice suit against Ronildo on February 16, 2006. The lower court granted summary judgment for Ronildo holding that the attorney/client relationship ended on December 18th, 2003 thereby barring Wright’s action due to the two-year statute of limitations.

Issue: Does the attorney/client relationship end once the client revokes the power of attorney, hires new counsel and reassigns the power of attorney?

Ruling: Yes. Under Michigan law it does not have to be the court that effectively terminates the attorney/client relationship. If Wright had truly wanted Ronildo to stay on as co-counsel there would be no need to revoke her power of attorney. This revocation, along with the hiring and transfer of power of attorney to a new lawyer affirmatively communicated to Ronildo that she had been replaced and the attorney/client relationship had ended. Under MI law, “The client's action for malpractice is time-barred unless it is brought within two years from the date the claim accrued or arose (i.e., the date that services were discontinued), or within six months of the date that "the plaintiff discovers or should have discovered the existence of the claim, whichever date occurs later.” MCL 600.5805(6); MCL 600.5838(2); Kloian v. Schwartz, 272 Mich. App. 232, 237, 725 N.W.2d 671 (2006). Therefore Ronildo’s motion for summary disposition was properly granted because two years had passed since the claim arose.

Lesson: Revoking the power of attorney, hiring a new lawyer, and giving that new counsel power of attorney is enough to terminate the attorney/client relationship. Once this relationship is over the statute of limitations begins to run on the amount of time the client is permitted to sue for malpractice.

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Krawczyk v. Stingle, 208 Conn. 239, 543 A2d 733 (1988).

CT: Underlying estate distribution matter

Student Contributor: Laura Binski

Facts: Prior to his death, the client had hired the lawyer to make arrangements for the distribution of his estate. The client was clear that he wished for his estate not to go through probate, so the lawyer suggested they set up a trust. The lawyer and client had a meeting planned for March 19, 1983 to finish execution of the will. On March 17, the lawyer found out that the client had a heart attack and was in intensive care. The lawyer did not proceed to complete the documents. On March 18, the lawyer was instructed to bring the trust instruments to the hospital. When the lawyer finally arrived at the hospital, she was not permitted to see the client because of his weakening condition. The client died shortly after without signing the trust documents. The intended beneficiaries of the client’s estate sued the lawyer on grounds that she had negligently delayed the completion of the will by either or: (1) not finishing the trust documents and presenting them to the client for signature on March 17, (2) not hastily arriving to the hospital on March 18 with the hand-written documents or a simple will for the client to sign immediately.

Issue: Is a lawyer liable to the intended beneficiaries of a will for negligent delay in completing and delivering estate planning documents for signing by the a client?

Ruling: No. “Imposing liability to the intended beneficiaries does not comport with the lawyer’s duty of undivided loyalty to the client.” The lawyer’s devotion remains entirely with the interests of the client, not any other third parties with whom the lawyer is not in privity. The lawyer’s obligation to the client would be undermined if the lawyer had to be concerned that whatever actions he or she took in the interest of their client might lead to a legal malpractice suit from a third party.

Lesson: Determination of a lawyer’s liability to those they are not in privity with is a question of public policy. The Court is concerned that imposition of liability to third parties could create a conflict of interest that would disrupt the lawyer’s duty of loyalty to the client. In specific, the Court reasoned “these potential conflicts of interest are especially significant in the context of the final disposition of a client’s estate, where the testator’s testamentary capacity and the absence of undue influence are often central issues.” 

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Robbins v. McGuinness, 178 Conn. 258, 423 A.2d 897 (Conn. 1979)

CT: Underlying real estate matter

Student Contributor: Laura Binski

Facts: The client entered into a contract to purchase land in 1966. The client hired a lawyer to represent him in all aspects relating to the land purchase. The land conveyed was said to contain approximately 9.5 acres. In 1971, the lawyer bought land north of the client’s property. The survey indicated that the land to be bought included about 4.5 acres of the previous client’s land. However, by various transactions, the title to the land bought in 1966 came into the ownership of the client. The client then filed a legal malpractice action in 1972 for negligence and breach of contract. The case was dismissed for failure to meet the statute of limitations. The client also instituted an action to establish boundary lines. That action showed that the plaintiff had received 9.04 acres, which was within the amount of land he bargained for in 1966. The client now seeks to recover his expenses from the prior action that proved that the lawyer was not in error in the title search or description. The client alleges that the lawyer had a continuing duty to warn him that there might have been an issue with the boundary lines of his land.

Issue: Does the continuing duty to warn rule apply to this case in order to overcome the tolling of the statute of limitations?

Ruling: No. The continuing duty to warn rule provides that the statute of limitations may be extended if the lawyer continually failed to notify the client that there was some question about where the boundary line lay and the amount of land transferred. In this case, the negligence claims all pertained to the completed act of the title search that occurred on or before December 16, 1966. Thus, the allegations do not reasonably include claims of continuing conduct on the part of the lawyer after the title search. The continuing duty to warn rule does not apply here because after the property purchase was made, a warning that the boundary was indefinite or that the amount of land was inaccurate would not have affected anything.

Lesson: The client’s breach of contract claim would also fail under the continuing duty to warn rule. Again, since the indefinite or inaccurate title search could not have affected anything, the lawyer had no continuing duty to the client after the transfer of property. Since the lawyer had completed the task for which he was hired (conducting the title search), and had no continuing duty, the breach of contract claim will fail as well. 

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Wilkins v. Safran, 185 N.C.App. 668, 649 S.E.2d 658 (2007)

NC: Underlying Construction Litigation

Student Contributor: Vanessa L. Wachira

Facts: After Rennie L. Wilkins (“Client”) was named as a defendant in a construction lawsuit in 1998, he retained the services of Perry Safran (“Attorney”). Over the next five years, Attorney represented Client in connection with this litigation. In February of 2003, Attorney suffered a heart attack. In April, Attorney submitted a letter to the court seeking to schedule litigation of the construction action for September 22, 2003. During the month of July, several lawyers who had been assisting Attorney in his representation of Client, including the associate who had been in charge of Client’s case, resigned from his firm. Believing his poor health would not allow him to continue alone in the representation of Client, Attorney served Client with a motion to withdraw on July 31. Attorney’s motion was granted by an order of the court, which was served on Client on August 4. Client retained new counsel who promptly submitted a motion for continuance of the September 22 trial and a motion to have Attorney’s withdrawal set aside. The court denied both motions, but ordered them eligible for reconsideration on the day of trial. Prior to trial, however, Client and new counsel settled the construction suit by agreeing to pay $22,500 in exchange for a dismissal of the suit with prejudice. Client commenced a malpractice action against Attorney asserting claims for negligence, breach of fiduciary duty, constructive fraud, and punitive damages.

Issue: Did Attorney’s conduct violate the standard of care with regard to the requirement to give reasonable notice to the client and to allow client to retain new counsel?

Ruling: No. Attorney’s conduct complied with the states Rules of Professional Conduct and thus, did not violate the standard of care due to Client. Rule 1.16(a)(2) states that an attorney “shall withdraw from the representation of a client if: the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client[.]” Here, by seeking to withdraw after suffering from a heart attack, Attorney’s actions complied with the rule. Additionally, Attorney filed his motion for withdraw more than seven weeks prior to the scheduled trial—a time frame deemed reasonable by the court. Client had no claim for constructive fraud because there was no evidence to suggest that Attorney gained a personal benefit by withdrawing.
In NC, punitive damages, which are intended “to punish a defendant for egregiously wrongful acts and to deter the defendant and others from committing similar wrongful acts,” may be assessed only when an attorney is guilty of fraud, malice, or willful or wanton conduct. Suffering from poor health does not fall into any of these categories.

Lesson: Although attorneys may be held liable for many things, having to withdraw from a case after suffering from a heart attack isn’t one of them.

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Vogel v. Touhey, 151 Md.App. 682, 828 A.2d 268 (2003)

MD: Underlying Divorce Proceeding

Student Contributor: Vanessa L. Wachira

Facts: In 1999, following the couple’s separation, Dr. Harold Alfert and attorney Karen Vogel (Client) entered into a property settlement agreement that provided for the equal division of their marital assets (valued at approximately two million dollars). After apparently discovering that her husband had failed to fully disclose the true value of the couple’s assets, Client retained T. Joseph Touhey (Attorney) to represent her in her divorce proceeding and to renegotiate the property settlement agreement. Dissatisfied with Attorney’s services, Client discharged Attorney and settled the dispute on her own for $50,000—a sum she agreed at the time was “fair and equitable.” Several months later, Client brought a malpractice action against Attorney, alleging that because he had failed to properly request and review documents pertaining to her husband’s finances, she had been forced to settle for an inadequate sum.

Issue: Was Client judicially stopped from asserting a malpractice claim against Attorney for his negligent representation in connection with her divorce after representing to the court that the settlement agreement in which she was entering was “fair and equitable”?

Ruling: Yes. Client’s decision to accept the settlement award prevented her from being able to later assert a claim for legal malpractice. The doctrine of judicial estoppel bars an individual from making inconsistent statements to the court. Having fired Attorney for his negligent conduct, Client was aware that the settlement agreement he had proposed was drafted without full knowledge of the facts of the case. Client was under no obligation to either agree to its terms or assert to the court that its terms were “fair and equitable.” Having done so, however, she was judicially estopped from later claiming that Attorney’s negligence caused her to accept an award that was inadequate. As the appellate court had stated:

“when a person who is particularly knowledgeable as a lawyer stands up, after being dissatisfied with her own lawyer and says, after having the documents in her hands that she later is going to use as the basis of a malpractice action, [] that everything is fair and equitable, I don’t see how this can proceed in violation of the judicial estoppel rule.”

Lesson: In Maryland, a client will be judicially estopped from asserting a claim for malpractice if she first conveys to the court that she is satisfied with the actions of, or the settlement produced by, her attorney. (And no, coercing your client into making such statements on the record is not a good idea.)

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Sebree v. Schantz, Schatzman, Aaronson & Perlman, 963 So.2d 842 (2007).

FL: Underlying action seeking to recover attorney fees

Student Contributor: Farah Shahidpour

Facts: Client failed to pay Attorney fees claimed to be due. The law firm, acting self-represented, filed suit against its former client. The firm obtained a default judgment for the full amount of the sum claimed. During the next two months, the law firm located and garnished the funds in two of Client’s personal bank accounts. Client made a motion to set aside the default judgment on the ground of insufficiency of service of process. Agreeing with this procedural error, the firm joined Client in an “Agreed Order for Disgorgement of Garnished Funds, etc.” Client filed a legal malpractice counterclaim, and filed a motion to dismiss the action for failure to prosecute. This motion was denied.

Issue: Whether the trial court erred in denying an earlier-filed motion to dismiss the action for failure to prosecute?

Ruling: Yes. If the failure of counsel to properly discharge the duties owned to him by his client results in damage or loss of the cause of action sued upon, the injured party may seek recourse against his attorney. This should not work to the unjust prejudice of the opposing party. Because the law firm represented itself, it has no one else to blame.

Lesson: A party cannot be excused for failing to prosecute his cause of action as required by the spirit and intent of the law merely because his attorney failed to file necessary pleadings or take such action as was necessary to constitute affirmative steps in the prosecution of the
 

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Elliott v. Van Kleef, 830 So.2d 726 (2002).

AL: Underlying personal injury action

Student Contributor: Farah Shahidpour

Facts: Client was injured when he was exposed to hazardous chemicals while working in Arkansas. Client hired an Alabama attorney to represent him in a personal injury action in Arkansas. Attorney was not licensed to practice law in Arkansas, so he contacted an Arkansas Attorney by telephone and requested that he serve as local counsel in Arkansas. This action was voluntarily dismissed. Attorney filed a second action, arising from the same injury. This action was involuntarily dismissed because Attorney allegedly failed to serve the defendant in that action within the time allowed by the Arkansas Rules of Civil Procedure. Client filed an action under the Alabama Legal Services Liability Act §6-5-570 in the Jefferson Circuit Court alleging that the Attorney failed to properly represent him in a personal-injury action filed in Arkansas, resulting in the action being dismissed with prejudice. Attorney made a motion to dismiss for lack of personal jurisdiction. Client appeals, stressing his belief that Arkansas attorney would travel to Alabama to represent him.

Issue: Whether the trial court correctly dismissed Client’s action for lack of personal jurisdiction?

Ruling: Yes. Attorney is licensed to practice law in Arkansas and Texas. He is not licensed to practice law in Alabama and has never applied for a license to practice law in Alabama. Exercise of either general or specific in personam jurisdiction over the Arkansas attorney would violate the Due Process Clause, Rule 4.2, Ala. R. Civ. P. and it does not permit the extension of Alabama’s in personam jurisdiction over the Arkansas Attorney. Telephone calls, fax transmissions, and letters sent from the Alabama attorney & client to the Arkansas attorney are not relevant since they were the, “unilateral activity of another person.” Burger King v. Rudzewicz, 471 U.S. 462, 475 (1985). The Arkansas Attorney did not purposefully avail himself of jurisdiction in Alabama merely by receiving telephone calls, fax transmissions, or by opening mail sent from Alabama.

Lesson: The Due Process Clause of the 14th Amendment permits a forum state to subject a nonresident defendant to its courts only when that defendant has sufficient “minimum contact” with the forum state. If an Attorney merely receives telephone calls and fax transmissions or opens mail from another jurisdiction, he is not “purposely availing himself of jurisdiction from that State.”

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