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

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

CT: Underlying will matter

Student Contributor: Laura Binski

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

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

Ruling: No.

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

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

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

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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

CT: Underlying breach of contract claim

Student Contributor: Laura Binski

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

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

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

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

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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

NJ: Underlying matrimonial action

Student Contributor: Laura Binski

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

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

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

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

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

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

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

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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

NJ: Underlying legal malpractice action

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

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

RULING: NO.

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

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

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

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

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

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

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

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

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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

TX: Underlying divorce action

Student Contributor: Megan Diodato

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

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

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

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

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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

MS: Underlying medical malpractice claim

Student Contributor: Laura Stein

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

Issue: Was there proximate cause?

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

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

• Email This
• Print
• Comments
• Trackbacks
• Share Link