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

Wooten v. Heisler, 82 Conn. App. 815, 847 A.2d 1040 (Conn. App. 2004).

CT: Underlying personal injury matter

Student Contributor: Laura Binski

Facts: The client was injured in a car accident and hired the lawyer to help him recover damages. After the lawyer brought a negligence action against the other driver, the client fired him and hired a new lawyer. The new lawyer settled the case for $70,000. Then, the client filed a legal malpractice action against the lawyer alleging that the lawyer had failed to tell him about medical treatment and testing he would need to help him improve his case. The client claims that if the lawyer had not been negligent, he would have been awarded $150,000. The lawyer filed a motion for summary judgment stating that the lawyers’ duties do not include advising his client about medical treatment. The trial court granted summary judgment and the client appealed.

Issue: Was summary judgment proper in this case? Does the lawyer have a duty to advise his client as to the appropriate course of medical diagnosis and treatment?

Ruling: Yes and no. Summary judgment is appropriate when there is no genuine issue of material fact. In this case, there is no issue of material fact because the lawyer produced evidence that the client had in fact obtained medical advice during the time the lawyer represented him. Thus, the client cannot claim that the lawyer’s failure to tell him to get medical advice kept him from a $150,000 award of compensation. As to the duty to advise, the Court held that “a lawyer has a duty to communicate with the client to the extent reasonably necessary to allow the client to make informed decisions . . . and to provide advice on legal and non-legal matters that are relevant to the client’s case.” (Rules of Professional Conduct 1.3 and 1.4). However, the lawyers’ duties do not extend to offering medical advice to a client for the purpose of increasing the award of damages in a negligence claim.

Lesson: In this case, summary judgment would have been proper even if the court had found that the lawyer has a duty to offer medical advice. The client would not be allowed to sue the lawyer for not advising him to seek medical advice since the client did in fact obtain medical advise during the time he was represented by the lawyer.  

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Atkinson v. Haug, 622 A.2d 983 (Pa. Super. 1993).

PA: Underlying real estate investment

Student Contributor: Laura Binski

Facts: Atkinson entered into a partnership agreement for an apartment complex with Haug, his friend and business associate. Haug was also a lawyer at Acton & Acton, P.C (“Acton”). The business investment failed, and Atkinson brought a legal malpractice action against Haug for misrepresentation and professional negligence. Atkinson also sued Acton under the theory of vicarious liability, claiming that Haug offered faulty business advice within the scope of his employment at Acton. The trial court entered summary judgment in favor of Acton and Atkinson appealed.

Issue: Did a lawyer-client relationship exist between Atkinson and Haug that would defeat the trial court’s entry of summary judgment?

Ruling: No.

“Absent an express contract, an implied lawyer-client relationship will be found if (1) the purported client sought advice or assistance from the lawyer; (2) the advice sought was within the lawyer’s professional competence; (3) the lawyer expressly or impliedly agreed to give the assistance; and (4) it is reasonable for the client to believe the lawyer was representing him”

Sheinkopf v. Stone, 927 F.2d 1259 (1st Cir. 1991). Here, there was no express legal agreement, no fee arrangement or retainer, no discussion of legal consequences of the deal, and no indication that Atkinson asked Haug for legal advice. Therefore, there was no express or implied lawyer-client relationship. A subjective belief that a lawyer-client relationship exists is an insufficient basis to defeat summary judgment. If there was no lawyer-client relationship, it follows that Acton & Acton could not be held vicariously liable.

Lesson: Acton could only be held liable under the theory of vicarious liability if Haug was shown to be acting within the scope of his employment or with apparent authority from Acton. The mere fact that Haug happens to be a lawyer does not necessarily characterize everything he says as “legal advice.” Since there was no evidence that Haug was acting within the scope of his employment at Acton, vicarious liability does not exist.  

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Lawson v. Nugent, 702 F. Supp. 91 (D.N.J. 1988)

NJ: Underlying criminal conviction matter

Student Contributor: Laura Binski

Facts: The client was indicted for robbery of a Post Office and hired the lawyer to represent him. The client claims that the lawyer encouraged him to plead guilty to all three counts of the indictment without investigating whether a factual basis existed for the guilty plea. The client was then sentenced to twenty-five years in a maximum-security penitentiary. While in prison, the client hired a new lawyer who successfully made motions to vacate the guilty plea to two aggravated counts of indictment. The client was released after serving five years of his sentence. The client then sued his original lawyer, claiming that but for the lawyer’s negligent representation, the client would have served a maximum of forty months in a correctional facility. The client seeks damages for the emotional distress he suffered during the “extra” twenty months of confinement.

Issue: May a client recover damages for emotional distress when his relationship to the lawyer was based on a liberty, rather than economic interest?

Ruling: Yes.

“A lawyer who commits malpractice is liable to his client for any reasonably foreseeable loss caused by his negligence including emotional distress resulting from the loss of liberty.”

Wagenman v. Adams, 829 F.2d 196, 222 (1st Cir. 1987). The Court reasons that deprivation of his freedom could potentially cause an individual to suffer mental distress. Therefore, the client can go forward with his claim of emotional distress due to the extra twenty months he spent in a maximum-security penitentiary allegedly due to negligent representation.

Lesson: The Court makes a point to distinguish between a loss of liberty and loss of economic interest. Typically, legal malpractice actions revolve around a loss of economic interest. Courts generally do not allow emotional distress claims when it is just loss of economic interest at stake in a legal malpractice case. Guatam v. DeLuca, 215 N.J. Super. 388, 521 A.2d 1343 (App. Div. 1987).

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Gilman v. Hohman, 725 N.E.2d 425 (Ind. Ct. App. 2000)

IN: Underlying divorce action

Student Contributor: Jeff Cain

Facts: Husband and wife divorce. Husband is a doctor who is a staff member at a local clinic. Since the husband has no ownership interest in the clinic, and his employment contract with the clinic had a non-compete clause, the wife’s lawyers conclude that the husband has no goodwill in the clinic. The property settlement agreement that the lawyers prepare for the divorce did not include a valuation for the goodwill of the husband’s medical practice. Two years later, the wife sues her lawyers for malpractice, alleging that they should have valued her husband’s goodwill in his medical practice as part of the property settlement.

Issue: Is a lawyer who does not value a husband’s goodwill in his medical practice as a part of a property settlement negligent if the husband’s goodwill is not divisible?

Ruling: There are two types of goodwill. Enterprise goodwill is the established relations that a business has with employees, customers, and suppliers, and it may be divisible in a divorce. Personal goodwill is a value attached to a business as a result of the continued presence of an individual. Personal goodwill is not divisible in a divorce, since the value only represents future earning capacity.

In this case, the wife could not have received any value from the goodwill of the husband’s medical practice as part of the property settlement. Since the husband had no ownership interest in the clinic, there was no business to which the goodwill could attach.

Lesson: To prevail on a claim of legal malpractice, a client must prove that they would prevail at trial if not for the lawyer’s breach of duty. The lawyers in this case were not negligent for failing to value something that was not divisible. Moreover, the damages claimed by the Ex-wife were not proximately caused by her lawyers since the ex-husband did not own the clinic and thus any of its good will. 
 

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Keesling v. Baker & Daniels, 571 N.E.2d 562 (Ind. Ct. App. 1991)

IN: Underlying bankruptcy action

Student Contributor: Jeff Cain

Facts: Lawyers represented clients in a Chapter 11 bankruptcy case. When the lawyers discovered that they may have a conflict of interest with one of their creditors, they had the clients hire other lawyers to represent them in that matter. After the bankruptcy court approved their reorganization plan, the lawyers withdrew their representation of the clients. Two years and twelve days later, the clients sued the lawyers for malpractice.

Issue: Is the statute of limitation for lawyer malpractice tolled for fraudulent concealment?

Ruling: The statute of limitations for lawyer malpractice is two years in Indiana. But a statute of limitations stops when a lawyer, “by deception or a violation of duty, has concealed material facts from the plaintiff thereby preventing concealment of a wrong.” This doctrine of fraudulent concealment includes instances where lawyers conceal malpractice from their clients, and when lawyers fail to disclose information from their clients. The clients in this case alleged that the lawyers actively concealed their malpractice, but they did not present any evidence to support that allegation.

Even if they did show that the lawyers concealed their malpractice, the doctrine of fraudulent concealment does not reset the statute of limitations on the malpractice action. A client who discovers lawyer malpractice has the responsibility to begin a lawsuit within a reasonable time. Since the clients did not explain why they filed a suit more than two years after their representation ended, their suit was barred by the statute of limitations.

Lesson: When a lawyer conceals his malpractice from a client, a lawyer malpractice lawsuit must be brought within a reasonable time after discovery of the malpractice.
 

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Ripper v. Bain, 253 Va. 197, 482 S.E.2d 832 (Va. 1997)

VA: Underlying real property transaction

Student Contributor: Karen Dindayal

Facts: On March 29, 1989, plaintiffs Edward H. Ripper and Phyllis O. Ripper entered into a contract to purchase a tract of land. There was a portion of the land containing a road that was maintained by the state. As a result, the contract contained provisions that granted the Rippers “to determine rights and responsibilities with respect to a road running through the property.” The Rippers were also allowed a 45-day option to conduct a feasibility study, wherein, if said study was conducted and the land was found subject to restrictions, then the plaintiffs would not be bound.
On April 4, 1989, Mr. Ripper contacted attorney, Bain to discuss the 45-day option and informed Bain that the Rippers would proceed with the purchase if Bain believed that the Rippers could restrict access to at least a portion of the road and gate it off. Ripper hired Bain to conduct relevant research on the matter.
On April 18, 1989, Bain advised Ripper that he did have a legal right to gate the road and restrict public access at the end of the state-maintained portion. Bain’s advice was based upon a title insurance policy and deed book pages. The Rippers then proceeded to purchase the land, and made a final confirmation with Bain that they had a right to gate the area and restrict public use on a section of the road. The Rippers then erected a gate on the road, thus stopping public traffic on that portion of the road.
Thereafter, the Albemarle County Board of Supervisors filed an action against the Rippers in Federal court seeking removal of the gate. In January 1992, the federal court ruled that the portion of the road was public and that the gate be removed.
The Rippers then filed suit against Bain alleging negligence. At the trial court granted Bain’s motion to strike evidence and granted summary judgment for Bain on the basis that the Rippers failed to establish that there was any negligence by Bain that caused any damage to the Rippers. The Rippers appealed.

Issue: Did the trial court err in holding that the clients failed to establish a prima facie case for negligence in the legal malpractice action?

Ruling: Yes. The Rippers established a prima facie case for negligence and proximate cause regarding Bain’s legal advice about the status of the portion of the road through their presentation of evidence that they sought Bain’s advice, and through expert testimony indicating that Bain negligently informed the Rippers that they had a legal right to restrict access to the road.

Lesson: To establish a claim for legal malpractice, a client must show that the attorney failed to exercise reasonable degree of care and skill in his performance of legal services.

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McKnight v. Dean, 270 F. 3d 513

Underlying legal malpractice action

Student Contributor: Clem Durham

Facts: A dispute then arose between McKnight and Gingras, the lawyer who had handled the case in the district court, concerning attorneys’ fees. This dispute led Gingras to sue McKnight in a Wisconsin state court. One of McKnight's defenses in that suit was that Gingras had committed malpractice. McKnight's new lawyer, Kenneth Dean, the principal defendant in the present case filed on McKnight's behalf a diversity suit against Gingras in federal court, charging Gingras with malpractice and thus essentially duplicating the defense that McKnight had raised in Gingras's suit. Gingras obtained a judgment against McKnight in Wisconsin— and then pleaded it as res judicata in the federal malpractice suit that McKnight. The district judge held that the res judicata defensewas valid  as to any claim pertaining to Gingras's handling of the trial of the  underlying discrimination suit (but not the appeal or remand), and thus wiped out any complaint about Gingras's failure at the trial to present evidence in support of reinstatement or his claimed outstanding pay, or to calculate back pay correctly. Gingras had malpractice insurance with a cap of $1 million to cover both
liability and attorneys' fees, and the insurance company had expended $235,000 on the
defense of McKnight's malpractice suit against him. The company offered to settle the case for
the difference between that amount and the $1 million cap, that is, for $765,000 ($475,000 after
Dean deducted his fee). Dean is alleged by McKnight to have told him that this was the most he could expect to obtain, and so he "must" settle for it — concealing from him the fact that any judgment against Gingras could be satisfied out of Gingras's personal assets as well as out of the proceeds of the insurance policy. So McKnight settled, thus setting the stage for this malpractice suit. McKnight claims that Dean committed malpractice in dropping the malpractice defense in the suit that Gingras had brought in the Wisconsin state court and in forcing him to settle for $765,000 rather than holding out for a larger settlement and if necessary proceeding to trial.

Issue: Can there be a malpractice claim for coercing a client to settle when the coercion does not harm the client?

Ruling: No. Although coercing a client to accept a settlement is a violation of a lawyer’s ethical duty to his client, it is sometimes harmless in the context of legal malpractice. McKnight argues that to repel summary judgment all he had to prove was that Dean's malpractice had caused him some injury, however slight — and that would be true if Dean had obtained no money for McKnight. But Dean obtained $765,000, so that his negligence injured McKnight only if, had it not been for that negligence, McKnight could have expected to obtain more than that amount in his suit against Gingras. That he has failed to show.

Lesson: Just because a lawyer’s actions are unethical, does not mean that a malpractice claim will be successful.
 

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Green v. Simmons, 919 A.2d 482 (Conn. App. 2007)

CT: Underlying premises liability: Long Arm Jurisdiction

Student Contributor: Eric B. Kang

Facts: In 2001, Albert Green hired Reginald D. Simmons & Associates, a law firm based in South Carolina, to represent him in a personal injury action in which Green was injured while he slipped on ice while making a delivery to Sam’s Wholesale Club in Manchester, Connecticut. The law firm sent two letters to Sam’s Club in Connecticut but received no responses. The law firm took no further action until two years later in 2003, when the law firm notified Green that it would no longer represent him. The following year, Green filed a malpractice action against the law firm in Connecticut, alleging that they were negligent for their failure to file suit against Sam’s Club in a timely fashion and for failing to properly pursue his claim. The law firm did not respond to Green’s complaint. The trial court granted Green’s motion for default for failure to appear against the law firm. The law firm showed up at the hearing for damages, but only for the purpose of contesting personal jurisdiction and to file a motion to dismiss on that ground. The court denied the motion and held for Green. The law firm appealed.

Issue: Whether the court properly asserted jurisdiction over the law firm pursuant to the state’s long arm statute?

Ruling: No. Connecticut’s long arm statute provides that jurisdiction may be exercised over a nonresident who “transacts any business within the state.” Conn. Gen. Stat. § 52-59b (a)(1). Since Connecticut’s long arm statute is modeled after New York’s long arm statute, the court held that New York case law provides guidance on the issue. In NY, an appellate court has held that “written communications, which generally are held not to provide a sufficient basis for personal jurisdiction under the long-arm statute, must be shown to have been used by the defendant to actively participate in business transactions in New York.” Liberatore v. Calvino, 742 N.Y.S.2d 291 (2002). Further,

 “mail contacts are...insufficient unless the defendant projected himself by those means into New York in such a manner that he purposefully availed himself … of the benefits and protections of its laws.”  

The court also noted another NY case that applied this principle and held the attorney not subject to jurisdiction where the non-resident attorney sent three faxes to NY medical care providers, attempted to obtain records from the state police, and sent two letters to the plaintiff, who lived in NY. The court in that case held that the attorney’s actions “did not amount to her projecting herself into NY or purposefully availing herself of the benefits and protections of its laws.” Green v. Simmons, 919 A.2d 482, 486. Similarly, the court here held that the two letters sent by the law firm to Sam’s Club in Connecticut did not subject them to jurisdiction in Connecticut under the state’s long arm statute.

Lesson: No matter what the result of this case, the boundaries of long arm jurisdiction vary from state to state. If a client matter requires that you become involved in the law of a different state, be familiar with those laws as they affect your client, and your prospective liability. 
 

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Alford v. Bryant, 137 S.W.3d 916 (Tex. App. 2004)

TX: Underlying  mediation

Student Contributor: Megan Diodato

Facts:  The client hired attorney to represent her in litigation against a contractor. The suit settled at mediation where the parties entered into a settlement agreement. All claims between client and the contractor were settled with the exception of attorney’s fees and costs in the underlying litigation. Attorney’s fees and costs were left to the trial court to determine. The client sued attorney for malpractice after the court ruled that the parties would be responsible for its own costs and attorney’s fees. The client alleges malpractice for the failure to disclose the risks and benefits of settlement, including that the trial court could deny attorney’s fees. The attorney claims that the client was fully disclosed the risks and benefits of settlement, including the risk that the court could deny attorney’s fees. The attorney claims that the only people privy to the discussion and disclosure were attorney, client and the mediator. The court did not allow the mediator to testify on the basis of the confidentiality provisions contained in the statute governing mediations.

Issue: Whether the mediator should have been allowed to testify to the substance of the disclosure made during mediation between attorney and client?

Ruling:  The policy of this state is to encourage peaceful resolution of disputes through mediation and confidentiality is critical to the success of the mediation process. One cannot search relief in court on the basis of privilege and deny a party the benefit of evidence that would materially weaken or defeat claims against her. Before a party may be found to have waived an asserted privilege the court must determine that: the party asserting privilege is seeking relief from the court, the privileged information sought is all likely outcome determinative of the suit, and disclosure of the confidential information is the only means by which the aggrieved party may obtain evidence. The client sought relief in the form of a money judgment from the attorney. The mediator’s testimony in this case would be crucial in establishing the advice rendered, or not rendered, by attorney to client. Finally, due to the fact that only those three were present, the mediator’s testimony is the only means attorney can obtain and present unbiased and critical information to the court. It is only fair to require the client either to abandon her claim of confidentiality or abandon her claim of legal malpractice.

Lesson: The confidentiality privilege in mediation may be waived where the testimony is outcome determinative and the only means opposing party may obtain evidence. 

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Pelletier v. Galske, 105 Conn. App. 77, 936 A.2d 689 (Conn. App. 2007).

CT: Underlying real estate matter

Student Contributor: Laura Binski

Facts: The client hired the lawyer in 2001 to help her with her purchase of a condominium. In 2006, the client brought a legal malpractice claim against the lawyer. The client claims that the lawyer breached his contractual duties by: failing to advise her that the condominium was classified as an affordable housing unit; failing to tell her that the affordable housing unit would be subject to resale price limitations for twenty years; neglecting to have her sign an acknowledgment that she understood the affordable housing terms; and failing to explain the affordable housing covenant to her. The client claims she was harmed by the lawyer’s actions because she placed large amounts of money into improving the condominium and would not be able to recover that money in a future sale. The client tried to base her claim on contract law, stating that when the lawyer accepted her fee for the purchase of the condominium, a lawyer-client contract formed. The lawyer defended on the grounds that the client’s claim sounded in tort law, and that the client was trying to bring the case under contract law only because she had missed the three-year statute of limitations that is applicable to legal malpractice claims.

Issue: May a client try to avoid the statute of limitations by basing her legal malpractice claim on breach of contract rather than negligence?

Ruling: No. In this case, the client was trying to bring her claim as a breach of contract so that the claim would be subject to a six-year statute of limitations instead of a three-year statute of limitations. However, the Court found that the complaint set forth a legal malpractice claim based on negligence. The client was harmed by the lawyer’s negligent failure to use the requisite standard of care in advising the client about the details pertinent to her condominium purchase. Therefore, the claim is time barred by the three-year statute of limitation because the client waited over four years to file.

Lesson: A client cannot seek to bring a tort claim under contract law theory just by disguising the claim in contractual language. In addition, the client cannot attempt to use the original lawyer-client contract to make this a breach of contract claim. Thus,

“where the client claims the lawyer negligently performed legal services . . . the complaint sounds in negligence, even though the client claims that he retained the lawyer or engaged his services.”

Shuster v. Buckley, 5 Conn. App. 473, 478, 500 A.2d 240 (1998).
 

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Mayer v. Biafore, 245 Conn. 88, 713 A.2d 1267 (1998).

CT: Underlying personal injury action

Student Contributor: Laura Binski

Facts: The client hired the lawyer to help him with a personal injury action involving a motor vehicle accident. The lawyer settled the client’s personal injury case for $10,000 (the limit of the tortfeasor’s liability policy), although the client’s injuries exceeded this amount. The client was insured by Aetna with a policy of up to $300,000 in underinsured motorist coverage. However, Aetna refused the client’s request for the underinsured motorist coverage. The client did not file a suit against Aetna to recover the underinsured motorist benefits. Instead, the client filed a legal malpractice complaint claiming that the lawyer’s negligence caused him to lose his rights to pursue a claim for recovery of benefits. The client further claims that this claim became ripe when he was denied the underinsured motorist coverage due to the tolling of Aetna’s statute of limitations. The lawyer claims that the legal malpractice claim will not be ripe until the client actually brings a suit against Aetna and Aetna raises the statute of limitations defense.

Issue: Did the client need to get a judge to decide the underlying case before he can bring a legal malpractice suit against his lawyer?

Ruling: No. There is an actual controversy in this case which makes it ripe for justiciability. Justiciability requires

“(1) that there be an actual controversy between or among the parties to the dispute . . . (2) that the interests of the parties be adverse . . . (3) that the matter in controversy be capable of being adjudicated by judicial power . . . and (4) that the determination of the controversy will result in practical relief to the complainant.”

Pamela B. v. Ment, 244 Conn. 296, 311, 709 A.2d 1089 (1998).

The fact that the lawyers contest the issues of causation and damages does not require the client to file action with Aetna before filing a legal malpractice claim. To require determination of the underlying case would not further the “judicial economy” and would only serve to add extra cases to the already overloaded court docket.

Lesson: All legal malpractice claims are based on an underlying dispute. A requirement that the underlying dispute be settled before a client can file a legal malpractice claim would unduly hinder the client’s ability to obtain redress against a negligent lawyer.

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Douglas v. Monroe, 743 N.E.2d 1181 (Ind. Ct. App. 2001)

IN: Underlying wrongful death claim

Student Contributor: Jeff Cain

Facts: A college freshman drowns in his school’s pool. His mother is too distraught to seek counsel, but his older brother, who is a bank security guard, sees a lawyer in the lobby of the bank. The brother asks the lawyer if there is a time limit to file a suit. The lawyer said that he had two years to file a suit, but she did not tell him about the 180-day notice to file a tort claim, or that he should not rely on her legal advice. The mother retains a lawyer several months later, and learns that she has just missed the 180-day deadline.

Issue: Did the lawyer have an attorney-client relationship with the mother, even though she never met the lawyer, because the mother relied on the lawyer’s advice?

Ruling: No. An attorney-client relationship can be implied when a client seeks advice from a lawyer, the advice sought is within that lawyer’s professional competence, and the lawyer gives the sought advice. In this case, the mother never met or spoke with the lawyer; did not attempt to contact the lawyer, schedule an appointment with the lawyer, or consent to an attorney-client relationship with the lawyer; never entered into a contract with the lawyer or pay her for legal advice; and the mother never thought that the lawyer was representing her in her son’s death.

Lesson: When giving casual legal advice, a lawyer should always tell the recipient that they must not rely on their advice.  Even better, make sure you don't give out casual legal advice. It will come back to haunt you, especially if the recipient relied on the advice and circumstances suggest that the lawyer had reason to believe he or she would so rely. 

 

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Rodgers v. Weatherspoon, 141 SW 3d 342 (Tex. App. 2004)

TX: Underlying criminal defense

Student Contributor: Megan Diodato

Facts:  The client was charged with aggravated assault and the attorney was appointed to represent him. The client filed motions to act on his own behalf and to dismiss attorney as his counsel. The attorney filed a motion to withdraw. The motion was granted that day. The client personally contacted the court multiple times and on one of his visits the client was arrested because the judge determined his bail was not sufficient. The client claims the clerk told him that if his attorney had been present in court he would have been released to his attorney and would not have to go to jail. The client filed a suit, claiming the attorney committed legal malpractice because he did not communicate with him and did not appear in court in time to allow client to avoid arrest. The client claims damages resulting from spending six days in jail and having to pay additional money for the increased bond. The attorney contends that he had no duty to the client and was not the cause of his arrest and damages. The client appeals attorney’s summary judgment that dismissed his legal malpractice claim.

Issue: Whether attorney’s breach of duty was the proximate cause of the client’s injuries.

Ruling: No.   Attorneys have a fiduciary relationship with their clients as a matter of law and summary judgment may be proper if it is shown that the attorney’s act or omission was not the cause of any damages to the client. The two components of proximate cause are cause-in-fact and foreseeability. Cause-in fact is where the defendant’s acts or omissions were a substantial factor in bringing about the injury that would not otherwise have occurred. Foreseeability does not require that the actor anticipate the particular injury that eventually occurs. In a legal malpractice case, where a lay person would ordinarily be competent to make a determination on causation, expert testimony is unnecessary. The attorney offered evidence through the trial judge’s testimony that the attorney had nothing to do with the client’s bond being held insufficient, as it was insufficient on his own. After the attorney presented this evidence, the client then had the burden of introducing his own evidence to raise an issue of material fact about causation. The client failed to meet this burden and offered no evidence that the attorney ever received word that he needed to appear at the court before the client was taken to jail. Only the county clerk said she had called the attorney’s office and left a message, but had not spoken to the attorney. There is no evidence that the client’s claimed harm would have been diminished or would not have occurred if the attorney had acted the way client contends. The attorney disproved the causation element of client’s malpractice claim as a matter of law.

Lesson: In order to win on a malpractice claim the plaintiff must prove that their harm would have been less or would not have occurred at all  if defendant acted in accordance with the standards of care. 

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Rodgers v. Weatherspoon, 141 SW 3d 342 (Tex. App. 2004)

TX: Underlying criminal defense

Student Contributor: Megan Diodato

Facts:  The client was charged with aggravated assault and the attorney was appointed to represent him. The client filed motions to act on his own behalf and to dismiss attorney as his counsel. The attorney filed a motion to withdraw. The motion was granted that day. The client personally contacted the court multiple times and on one of his visits the client was arrested because the judge determined his bail was not sufficient. The client claims the clerk told him that if his attorney had been present in court he would have been released to his attorney and would not have to go to jail. The client filed a suit, claiming the attorney committed legal malpractice because he did not communicate with him and did not appear in court in time to allow client to avoid arrest. The client claims damages resulting from spending six days in jail and having to pay additional money for the increased bond. The attorney contends that he had no duty to the client and was not the cause of his arrest and damages. The client appeals attorney’s summary judgment that dismissed his legal malpractice claim.

Issue: Whether attorney’s breach of duty was the proximate cause of the client’s injuries.

Ruling: No.   Attorneys have a fiduciary relationship with their clients as a matter of law and summary judgment may be proper if it is shown that the attorney’s act or omission was not the cause of any damages to the client. The two components of proximate cause are cause-in-fact and foreseeability. Cause-in fact is where the defendant’s acts or omissions were a substantial factor in bringing about the injury that would not otherwise have occurred. Foreseeability does not require that the actor anticipate the particular injury that eventually occurs. In a legal malpractice case, where a lay person would ordinarily be competent to make a determination on causation, expert testimony is unnecessary. The attorney offered evidence through the trial judge’s testimony that the attorney had nothing to do with the client’s bond being held insufficient, as it was insufficient on his own. After the attorney presented this evidence, the client then had the burden of introducing his own evidence to raise an issue of material fact about causation. The client failed to meet this burden and offered no evidence that the attorney ever received word that he needed to appear at the court before the client was taken to jail. Only the county clerk said she had called the attorney’s office and left a message, but had not spoken to the attorney. There is no evidence that the client’s claimed harm would have been diminished or would not have occurred if the attorney had acted the way client contends. The attorney disproved the causation element of client’s malpractice claim as a matter of law.

Lesson: In order to win on a malpractice claim the plaintiff must prove that their harm would have been less or would not have occurred at all  if defendant acted in accordance with the standards of care. 

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Aubin v. Barton, 123 Wash. App. 592 (2004)

WA: Underlying Divorce Action

Student Contributor: Ben Doyle

Facts:  Client sued  attorney for malpractice following attorney’s representation in the dissolution of marriage. Client claimed that attorney’s conduct at a settlement conference did not meet the standard of care. Client was the grantee of stock options. Attorney failed to give correct advice concerning the separate property character of the stock options. Client claims that without attorney’s mistaken advice, he never would have entered into the settlement agreement that treated the options as community property. In the malpractice action, the court found, during the trial within a trial, that, if the action had gone to court, that court would have found that client owned 60% of the options and the remaining 40% were community property. The court found in favor of client and attorney appealed.

Issue: Whether the trial court erred not permitting expert testimony to reach the conclusion that  the stock options were 60% clients separate property.

Ruling: The trial court had excluded expert testimony on the ground that only the attorney can testify at the trial within the trial. That exclusion was improper. The issue was whether the options were given for past services or for present and future services and the attorney’s expert witness, who had evidence contrary to the disposition of the court, should have been heard. The error was not harmless and the decision was reversed.

Lesson: If an attorney is being sued for malpractice, it is important to line up expert witnesses that can testify that the attorney’s conduct was not negligent. The court must determine the validity of the underlying claim and the attorney has every right to present evidence to defend his or her position.

“Where it is alleges that an attorney committed malpractice in the course of litigation, the trial court hearing the malpractice claim retries, or tries for the first time, the client’s cause of action that the client contends was lost or compromised by the attorney’s negligence, and the trier of fact decides whether the client would have fared better but for the alleged mishandling.

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