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

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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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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Beese-Munoz v. Barbone, Esq., N.J. App. Div.  (per curiam) Decided May 20, 2011).

NJ Underlying Work Place Discrimination Claim

Facts: In this legal malpractice case, plaintiff appeals from the order granting defendant's summary judgment motion and dismissing her case. Plaintiff retained defendant to pursue her discrimination claims against the Lakehurst Naval Station and others. Her lawyer drafted and filed a complaint on plaintiff's behalf. The Department of the Navy moved to dismiss on three grounds; two procedural--failure to effect proper service of process and one substantive--failure to state a cause of action. The Judge  granted the motion to dismiss  without prejudice on the basis of improper service of process. Defendant lawyer forgot to notify his client of the dismissal for 13 months.  Plaintiff  alleges defendant's failure to notify her of the  Court's decision in a timely fashion deprived her of the opportunity to cure the procedural deficiency, and thus precluded her from prosecuting her cause of action against the Navy. Now, the defendant lawyer moves for summary judgment dismissing the malpractice complaint for claiming that the client would have been unable to establish proximate cause--that she had no meritorious underlying claim.

Issue: If the client's underlying claim was dismissed without prejudice because of the lawyer's negligence, can the lawyer move to dismiss the malpractice complaint on other grounds?  

Ruling:  Yes

Notwithstanding  the  negligent failure to notify plaintiff of the dismissal, plaintiff cannot prevail in this legal malpractice case because her complaint against the Navy was substantively without merit and procedurally barred by her failure to exhaust administrative remedies in that she failed to cooperate with the administrative processing of her discrimination claim. 

Lesson:

The trial court correctly found that defendant's negligence was not a proximate cause of plaintiff's inability to successfully prosecute [the underlying case]. Rather, it was plaintiff's failure to cooperate...This lack of cooperation amounted to failure to exhaust administrative remedies, thus creating an independent procedural bar to the prosecution of her [underlying] claim. The fact that [the Judge in the underlying action] based his decision on a different discrete issue does not preclude the trial court [in the malpractice action] from determining a different and independent basis for dismissing plaintiff's case [in the underlying action]. 

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Viola v. O’Dell, 108 Conn. App. 760, 950 A.2d 539 (Conn. App. 2008)

CT: Underlying zoning action

Student Contributor: Laura Binski

Facts: The client operated a landscaping business in the downtown business district zone. The client’s business involved the sale of landscaping equipment, but no retail sales occurred on site. Instead, customers would place orders over the phone and the equipment would be delivered directly to the customer. Zoning enforcement officials ordered the client to cease and desist the business. The client then hired the lawyer to represent him in challenging the zoning order. The zoning board held a meeting and denied the clients appeal of the zoning order. The client then filed in Superior Court to appeal the board’s decision. However, the lawyer failed to timely file the appellate brief and the client’s appeal was dismissed. The client then filed a legal malpractice action. The court granted summary judgment in favor of the lawyer on the basis that there was no genuine issue that the lawyer’s negligence had caused any harm to the plaintiffs.

Issue: Was there a genuine issue that the lawyer’s negligence had caused harm to the clients?

Ruling: No. To prevail in this case, the clients would need to show that there was no substantial evidence to support the zoning board’s determination. Analysis of the zoning regulation indicated that the client’s business was similar to that of a greenhouse or nursery, both of which are prohibited in a downtown business area. In addition, the business did not meet the downtown business district purpose to “encourage high density, pedestrian-oriented commercial development” because all sales were conducted by telephone. Thus, substantial evidence existed to support the board’s determination that the client’s business was engaging in non-permitted use. The case would have lost on the merits, so the lawyer’s failure to file a timely appeal does not amount to causation of the harm.

Lesson: Evidence that the client would have won their underlying case is required in legal malpractice actions. In order for the client to show that the trial court improperly decided that there was no genuine issue of fact as to the element of causation, he needed to persuade the court that he could have likely prevailed in their underlying appeal. Since the client would have lost the underlying case, the lawyer’s negligence in timely filing the appeal does not amount to a genuine issue on causation. 

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Suder v. Whiteford, Taylor & Peston, LLP, Court of Appeals of Maryland, April 9, 2010. 

Facts:  Suder filed an action for legal malpractice against her former attorneys, alleging failure to timely file a request for a fifth extension which, ostensibly, caused her to receive approximately $270,000 less under a will than she otherwise would have.  The defendant attorneys admitted that they failed to timely request an extension, but argued that that omission was not the cause of Suder's alleged damages.  

The defendant attorneys argued that even if they had timely filed a request for a fifth extension, Suder would not have collected her statutory share because of the invalidity of her original request for extension at which time she was not represented by the defendant attorneys.  Accordingly, the attorneys contended that their "mistake" did not place Suder in a worse position, and that Suder could not prove proximate cause under the "case within a case" doctrine. 

Suder argued that the "case within a case" doctrine constitutes a "hypothetical...rewrite of history," and even if it is to be used, the defendant attorneys must be limited by the underlying defendants' waiver of their right to challenge a previous extension. 

Issue:  Must Plaintiff establish proximate cause by proving the underlying case in the malpractice case?  If so, are the former attorneys limited to only those defenses previously raised by the underlying adversary?

Ruling:  Suder must show proximate cause under the "case within a case" doctrine.  The defendant attorneys were not limited to only those defenses raised previously by Suder's adversary in the underlying action. 

The trial-within-a-trial doctrine is "the accepted and traditional means of resolving issues involved in the underlying proceeding in a legal malpractice action. It should be applied where there is no bright line malpractice... The trial-within-a-trial doctrine exposes "what the result `should have been' or what the result `would have been'" had the lawyer's negligence not occurred.

Accordingly, the Court held that the "case within a case" method was the appropriate way to determine whether Suder's adversary in the underlying litigation would have successfully challenged her requests for extensions, had the defendant attorney timely requested a fifth extension.  In that regard, the Court noted that Suder's adversary in the underlying litigation was permitted to challenge the validity of any extension throughout the appellate process, up until close of the estate administration.  

Moreover, the Court noted that the defendant attorneys were limited to those defenses Suder's adversary "would have" raised in the underlying action upon the filing of a fifth extension, rather than only those defense that had been raised previously:

Here, [the defendant attorneys are] given the chance to present the defense as merely the knife that severs the causal link between its own negligence and Suder's damages in this malpractice action. Relitigating the underlying action for the purposes of a malpractice suit is simply a tool by which the litigants are able to wind back the clock to determine whether the attorney proximately caused the injury.

To ascertain what defenses Suder's adversary would have raised with regard to a fifth extension, "the trier of fact should examine the record of the underlying controversy and hear testimony from the parties and counsel."

Lesson:  The "case within a case" method continues to be the golden test for proximate cause in legal malpractice matters.  In defending against malpractice actions, attorneys will be limited to those defenses the underlying adversary "would have" raised -- a fact sensitive determination. 

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Guyton v. Hunt, Court of Civil Appeals of Alabama, July 23, 2010.

Facts:  Guyton was convicted of sexually abusing a minor.  After his conviction, he retained Hunt to prepare and file a motion for new trial, and if that was denied, file an appeal.  Hunt's motion for a new trial was denied, but he never advised Guyton or Guyton's family members.  Shortly thereafter, Guyton filed an action against Hunt alleging fraud and legal malpractice, arguing that the delay in learning his motion had been denied caused a delay in filing his notice of appeal.  Guyton further argued that he incurred damages by paying another attorney to handle his appeal even though Hunt had already been paid to do so.  

The lower court dismissed the complaint against Hunt for failure to produce an expert report. Guyton appealed.

Issue:  

1. Could Hunt pursue a fraud claim separate and apart from a legal malpractice claim against Guyton?
2. Was Hunt's negligence a blatant error, or was expert testimony necessary to establish a breach of the duty of care? 
3. Was Hunt's negligence the proximate cause of any damage sustained by Guyton? 

Ruling: 

Alabama's Legal Services Liability Act provides, in pertinent part, as follows: 

(1) Legal service liability action. Any action against a legal service provider in which it is alleged that some injury or damage was caused in whole or in part by the legal service provider's violation of the standard of care applicable to a legal service provider. A legal service liability action embraces all claims for injuries or damages or wrongful death whether in contract or in tort and whether based on an intentional or unintentional act or omission. A legal services liability action embraces any form of action in which a litigant may seek legal redress for a wrong or an injury and every legal theory of recovery, whether common law or statutory, available to a litigant in a court in the State of Alabama now or in the future.

Accordingly, Guyton's claim for fraud was subsumed by his claim for legal malpractice.  

The Appellate Court, however, disagreed with the lower court and held that "failure to notify a client of a ruling on a motion in time for the client to timely file an appeal constitutes a breach of the standard of care that is so apparent that expert testimony is not required for a layperson to understand that breach."  Nevertheless, the Appellate Court affirmed the lower court's dismissal of the malpractice action, since: 

Any delay, if indeed there was a delay, in filing Guyton's notice of appeal that may have been caused by Hunt's failure to "timely" notify Guyton of the denial of his postjudgment motion obviously did not preclude Guyton from timely filing his notice of appeal or prevent the Court of Criminal Appeals from considering his appeal. Guyton has not demonstrated that Hunt's delay, if any, caused Guyton harm. Furthermore, we conclude that based upon the record before us, Guyton failed to demonstrate that the outcome of his criminal case, i.e., his conviction and sentence, would have been any different had Hunt notified him of the denial of his postjudgment motion.

Moreover, with regard to damages, the Appellate Court noted that there was no evidence "Guyton himself contributed to [attorneys' fees].  Because Guyton did not pay any portion of the attorneys' fees in the underlying criminal action, he cannot claim he was damaged as a result of any allegedly unnecessary payments incurred because of Hunt's conduct."

Lesson:  In Alabama, multiple claims against a legal services provider will be subsumed under the "legal malpractice" umbrella.  Even where an attorney commits blatant negligence, the claim will be dismissed unless the former client is able to establish that he sustained damages as a result of the attorney's errors and omissions. 

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Schorsch v. Moses & Singer LLP, 60 A.D.3D 557, 876 N.Y.S.2d 367 App. Div. 1st Dep’t 2009).

NY: Underlying insurance claim

Student Contributor: Nicole Milone

Facts: M.R.S. Antiques was a family-owned business that sold art and antiques. The business was run by Margaret Schorsch, her brother David Schorsch, their mother Marjorie Schorsch, and two other unrelated employees. M.R.S. Antiques had an insurance policy through Utica Mutual Insurance Company (Utica). On September 23, 1995, M.R.S. Antiques was robbed. Their inventory, valued at roughly $2 million dollars, was missing. M.R.S. Antiques reported the theft to the police and filed a claim of loss with Utica. Margaret Schorsch believed that her brother David had committed the theft. Based on this belief, she retained Moses and Singer, LLP (Moses) to represent her and the company in an action against her brother. Moses also came to represent M.R.S. Antiques in the Utica insurance claim regarding the theft. In 1997, Utica denied M.R.S. Antiques’ claim due to the “dishonest acts exclusion” of their policy. The policy denies coverage for a loss caused by dishonest acts committed by anyone with an interest in the property. Utica mistakenly quoted the wrong policy in their letter informing M.R.S. Antiques that they were denying the claim. However, the policy quoted in the letter is materially the same as the policy that covers M.R.S. Antiques in this claim.

Issue: Whether the lower court erred in dismissing the client’s case where the attorney did not pursue a legal action against an insurance company who mistakenly cited an incorrect policy when denying client’s insurance claim?

Ruling: No. The error made by the insurance company and the lawyer’s failure to pursue a cause of action against them for their mistake would not have changed the outcome of the underlying matter. The policy incorrectly cited by the insurance company was only slightly different than the policy that actually covered M.R.S. Antiques. The “dishonest acts exclusion” still applies because Margaret Schorsch claimed David Schorsch, an employee with an interest in the company, committed the theft. This clearly applies as an exclusion under the insurance policy, proving that coverage was properly denied.

Lesson: Even if an error was committed in the underlying matter by opposing counsel which goes unnoticed by their adversary, that does not guarantee a legal malpractice claim. A client must prove their attorney’s negligence was the proximate cause of their damages.

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Brock v. Owens, 532 A2d 1168 ( PA. 1987).

PA: Underlying employment discrimination case

Student Contributor: Laura Binski

Facts: Brock (client) was a professor at Lincoln University. She believed she was the victim of race and gender discrimination, so she hired a lawyer. She first hired Kalemjian, but he withdrew from the case. Next, the client hired Wusinich. She replaced Wusinich with Owens. The client sued all three of the lawyers for legal malpractice after the court dismissed her case for lack of subject matter jurisdiction. The client represented herself in the lawsuit against the lawyers, and asserted that all three handled her case negligently. At a jury trial, the lawyers filed a motion for non-suit. The motion was granted and the client now appeals.

Issue: Did the trial court properly grant the motion for non-suit in favor of the lawyers?

Ruling: Yes. To avoid non-suit in the case, the client had to show (1) the employment of the lawyers as a basis for their duty to her, (2) the lawyer’s failure to exercise ordinary skill and knowledge in handling the case, and (3) that the lawyer’s failure to handle the case diligently was a cause of the damage to the client. Here, the client presented no evidence to show that the lawyers failed to exercise ordinary skill or knowledge in handling the case, or that she would likely have prevailed in her suit against Lincoln, or that the lawyers handling of her case was a proximate cause of her failure to win the lawsuit against Lincoln. Thus, the client did not meet the requirements to establish her malpractice claim.

Lesson: The client here failed to prove malpractice because she did not show that the lawyers handled her case with less than the requisite ordinary skill and care or that their handling of the case was a proximate cause of her failed claim against Lincoln. She also did not present any evidence to show that it is more likely than not that she would have won her underlying lawsuit if not for the lawyers’ negligence. If the client does not present any evidence that the lawyers failed to exercise ordinary skill and knowledge or evidence that she would likely have won her case against Lincoln University, the client cannot prevail in the legal malpractice claim.
 

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Walker v. Burnett,  241 Ga. App. 105,526 S.E.2d 109 (1999)

Underlying Action: Discrimination Action (Georgia)

Student Contributor: Candice L. Deaner

Facts:  Legal malpractice action against attorney who represented Plaintiff in federal employment discrimination action, in which summary judgment was entered in favor of Plaintiff's employer. The Superior Court, granted summary judgment for Defendant attorney. Client appealed.

Issue: Whether an Attorney is permitted to pursue a claim of malicious prosecution against a former client who brought a legal malpractice case against them?

Ruling: The Court of Appeals held that client failed to present any evidence to raise jury issue on element of proximate causation.
1) Plaintiff failed to show that he would have prevailed in underlying racial discrimination action against his employer but for Defendant's alleged negligence.
2) The order granting summary judgment for employer was based not on counsel's legal representation or alleged lack thereof, but rather, on client's failure to show that any discrimination had occurred.
3) Plaintiff failed to present any specific evidence to rebut Defendant attorney's assertion that there was no deposition testimony that court could consider due to attorney's failure to ensure that such depositions had been filed in record; plaintiff's few references to allegedly favorable evidence were vague and unsupported by specific evidence in record.

Lesson: When clients sue their attorneys for legal malpractice, courts require them to prove that, but for their attorneys’ negligence, their claims would have been resolved more favorably. This standard has come to be known as the 'case within a case.' When a showing cannot be made that the client’s attorney ruined an otherwise successful claim, the courts will grant summary judgment on the issue of causation. If a Plaintiff had lost their case due to the merits (or lack thereof) of the cause of action and not due to the actions of the attorney, then a subsequent legal malpractice action will be dismissed. Only if the Plaintiff lost their case based on the attorney’s actions would the Plaintiff have been successful.

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Williams v. Bashman, 457 F. Supp. 322 (E.D. Pa. 1978)

 PA: Underlying  tort action.

Student Contributor: Colleen Gaedcke

Facts: The plaintiff retained the defendant, a partner at the defendant law firm, to represent her in her personal injury case against the a homeowner and the city of Philadelphia. A year passed without any communication between the plaintiff and the defendant, until the plaintiff sent the defendant a letter inquiring about the status of her case. The plaintiff received a letter from another attorney at the defendant law firm stating that he was representing her in her case against the City. Plaintiff did have one conversation with the defendant partner where he assured her that the case was in court. Another year passed and the defendant partner left the defendant law firm. The defendant law firm never filed the plaintiff’s case. The plaintiff claimed that the “defendant firm failed to exercise within the scope of their employment reasonable professional care and diligence in their representation of the plaintiff.” As a result of this failure the plaintiff claims that she was unable to recover compensation for her injuries and that her claim was barred by the statute of limitations.

Issue: Whether the plaintiff defendant law firm was liable for legal malpractice?

Ruling:  Yes.

1.) “When a plaintiff alleges that the defendant lawyer negligently provided services to him or her as a plaintiff in the underlying action, he or she must establish by the preponderance of the evidence that he or she would have recovered a judgment in the underlying action in order to be awarded damages in the malpractice action, which are measured by the lost judgment.”

2.) Here, the court found that the defendant law firm was responsible for her case, including conducting discovery to determine the merits of her case and proving the elements if necessary at trial.

3.) The defendant law firm owed the plaintiff a duty to exercise reasonable profession in the prosecution of her claim and they negligently breached that duty which was the proximate cause of the plaintiff’s loss of damages.

Lesson: An attorney who signs a retainer agreement with a client has a duty to exercise reasonable care in representing that client. A breach of this duty may be the proximate cause of the client’s damages and thus the attorney will be liable for legal malpractice.

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Yousian v. Eisenberg, 34 A.D.3d 228 (2006)

NY Underlying Medical Malpractice Action

Student Contributor: Ally Shuster

Facts: Plaintiff went to hospital complaining of gastrointestinal pain. Over the next few months, Plaintiff underwent a series of tests in order to diagnose his condition. He underwent a sonogram, the results of which showed that he had stones in his gallbladder. Subsequently, he underwent surgery and was left with debilitating pain that he alleges to be a result of the surgery. Plaintiff retained Defendants and sued for medical malpractice. The Defendant attorneys failed to timely re-calendar the case, which is the  basis for this legal malpractice claim.

Issue: Is there a valid legal malpractice claim?

Ruling: No. There is no issue of fact as to whether the treatment Plaintiff received at the Hospital constituted medical malpractice.

Lesson: In order to win a legal malpractice claim, a Plaintiff MUST prove that he could win the underlying case. Although it was troubling that Defendant attorneys failed to timely re-calendar the case, Plaintiff did not prove that he would have been successful in the underlying case but for the Defendant attorneys’ negligence.

“In order to prevail in a legal malpractice suit, the clients must prove that their former attorneys were negligent and that they could have prevailed and recovered a judgment but for that negligence.” Tanel v. Kreitzer & Vogelman, 293 A.D.2d 420
 

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Michael Viner et al. v. Charles A. Sweet et al. 30 Cal. 4th 1232 (Cal. 2003)

CA Underlying corporate transaction

Student Contributor: Evan Michael Hess

Facts: Plaintiffs retained Defendant and his law firm for a corporate transaction. After negotiating an employment termination agreement, the Plaintiffs brought a legal malpractice suit alleging seven claims, encompassing and array of agreements stemming from negligent representation / misrepresentations by the Defendants to the Plaintiffs. A jury awarded the Plaintiffs damages on all seven claims, with the Court of Appeals reducing the damages award. On appeal, the Defendants contend that in a transactional
malpractice action, the plaintiff must show that but for the alleged malpractice, a more favorable result would have been obtained, and that the Plaintiffs would not have entered into the transaction (a “no deal” scenario).

Issue: Must the plaintiff in a transactional legal malpractice action prove that a more favorable result would have been obtained but for the alleged negligence?

Ruling: Yes. The Supreme Court of California held that:

1) there is “nothing distinctive about transactional malpractice that would justify a relaxation of, or departure from, the well-established requirement in negligence cases that the plaintiff establish causation by showing either (1) but for the negligence, the harm would not have occurred, or (2) the negligence was a concurrent independent cause of the harm”;
2) “Determining causation always requires evaluation of hypothetical situations concerning what might have happened, but did not. In both litigation and transactional malpractice cases, the crucial causation inquiry is what would have happened if the defendant attorney had not been negligent”;
3) There must be investigation into what would have happened but for the lawyer’s alleged negligence.

Lesson: Plaintiffs seeking damages in an action for legal malpractice stemming from an underlying transaction must show both but for causation, just as in litigation malpractice actions. A malpractice case will not be successful if the Plaintiff does not prove that the underlying case had merit.

 

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Daly v. Peace, 863 N.Y.S.2d 770, 2008 N.Y. Slip Op. 06955 (2 Dept.)

NY Underlying criminal action

Student Contributor: Angela Ignelzi

Facts: Plaintiff brought an action against his former defense attorney for legal malpractice after, allegedly, being wrongfully convicted. The attorney made a motion to dismiss plaintiff’s complaint on the grounds that the client could not prove he was innocent of the charges brought against him in the underlying action. The trial court granted the attorney’s complaint and plaintiff appealed the dismissal.

Issue: Did the trial court correctly dismiss plaintiff’s malpractice complaint because of his inability to prove his innocence with regard to the claims asserted against him in the underlying action?

Ruling: The Supreme Court of New York, Appellate Division, Second Department, held that:

(1) The trial court has correctly assessed that the plaintiff could not establish his innocence with regard to the charges made against him in the underlying action, and, therefore

(2) The Plaintiff had no cause of action for legal malpractice against his criminal defense attorney, unless and until he ultimately succeeded in his attempts to have the underlying conviction reversed.

Lesson: A former client, even in an underlying criminal action, can only prevail on a claim for legal malpractice by successfully applying the “suit within a suit” method: No presumption of innocence is available to those convicted in the first place, purportedly, as a result of negligent representation.

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Garcia v. Kozlov, Seaton, Romanini & Brooks, P.C., 179 N.J. 343 (2004)

Student Contributor:  Melissa Goldberg

NJ Underlying  Litigation (Personal Injury Action)

Facts: In this case, Plaintiff settled an underlying action involving a car crash and later alleged that her lawyer had negligently failed to include a responsible party in the underlying lawsuit. Plaintiff attempted to include this necessary, responsible party as a defendant in the underlying suit, but summary judgment was granted in favor of the new defendant under the statute of limitations. In the malpractice action, Plaintiff argued that failure to include the responsible party lessened her po-tential recovery. The attorney argued that (1) Plaintiff’s settlement barred any recovery in the mal-practice action; and (2) the value of her claim would have been no different with or without the new defendant. Plaintiff, however, proceeded to prove her case using expert testimony regarding the settlement and other evidence regarding her case. The defendant objected to the expert testimony and argued that the “suit within a suit” method, where Plaintiff presents evidence that would have been presented at trial in the underlying action had the malpractice not occurred, was the only way the Plaintiff should be allowed to prove her case.

Issue: Is the “suit within a suit” method the only way to prove proximate cause in a  legal malpractice case based on underlying litigation?

Ruling: No.

The proper approach in trying a legal malpractice action will depend on the facts, the legal theories, the impediments to one or more modes of trial, and, where two or more approaches are legitimate, on Plaintiff’s preference.

Lesson: Alternative approaches to the “suit within a suit” method are permitted to prove  the causation element  in legal malpractice, so long as the jury is provided with an independent basis to determine the effect of the alleged malpractice and the value of plaintiff’s losses.

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