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

Abramson v. Wildman, 184 Md.App.189, 964 A.2d 703 (2009)

MD: Underlying Custody Dispute

Student Contributor: Vanessa L. Wachira

Facts: Ronald Wildman (Client) retained Joel Abramson (Attorney) to advise and represent him in a custody dispute. The retainer agreement informed Client that he could “expect [Attorney’s] firm to be both sensitive and professionally responsive to [his] situation.” Attorney filed a breach of contract action against Client seeking recovery of $13,000 in unpaid legal fees. Client counterclaimed for $24,525 alleging breach of contract for Attorney’s failure to represent him in a professionally responsive manner. Specifically, Client alleged Attorney a) prepared and presented a false financial statement to the court; b) failed to timely advise him of a subpoena requesting certain documents; c) failed to present competent evidence and testimony of his financial circumstances; d) failed to properly advise him of the merits of his case and his settlement options; and e) charged him for unnecessary and duplicative work. At trial, the jury found in Client’s favor and awarded him $24,525—the total fee Client had paid to Attorney.

Issue: Does an attorney’s written promise to be “professionally responsive” create an express contractual obligation to provide competent legal advice and representation, such that a client alleging breach of that duty may assert his claim as an action in contract?

Ruling: Yes.  When an attorney makes an express promise of professional responsibility, he creates a contractual obligation to provide his client with legal services that reflect the standard of competence required by his profession. Under Maryland case law, an attorney is required to exercise reasonable “care and diligence” as well as certain “degree of professional skill and knowledge.” Cochrane v. Little, 71 Md. 323, 331-32, 18 A. 698 (1889).
Here, the retainer agreement contained a specific promise that Attorney would “be professionally responsive,” thus creating an express contractual obligation. Consequently, Attorney’s failure to conform to accepted professional standards was enforceable as a breach of express contract. Moreover, even in the absence of the written promise of professional responsibility, under the “law of the place” doctrine, existing laws (including that cited above) “enter into and form part of a contract as if ‘expressly’ referred to or incorporated in its terms.” As the court so aptly concluded, although “‘[f]ew modern actions against attorneys are for breach of a written or express contract,’ this is one of them.”

Lesson: Whether or not a retainer agreement contains an express promise of professional responsibility, a lawyer will be contractually obligated to provide competent legal advice and representation. Also, if a lawyer plans to sue a client for unpaid fees, he should first make sure he’s earned them.

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Lundberg v. Backman, 11 Utah 2d 330 (1961).

Student Contributor: Manju Sunny

Facts: Plaintiff alleges that her former attorney was negligent by failing to file a motion for a new trial within the time prescribed by law. She further alleges that she relied upon her attorney to do this and his failure to do so caused her to lose her opportunity to have the trial court reverse its prior decision. Defendant responds that the parties never entered into an agreement with regard to appeals. To the contrary, he states that he advised his former client that he would not represent her on any appeal. This, despite the fact that he did not formally withdraw as her attorney until after the time for appeal had run. 

Issue: What, if anything, did the attorney do wrong?

Ruling: Nothing. 

As a general rule, implied authority of an attorney ends with the entry of a final judgment in the trial court. While there are some exceptions to this rule, it has been held that an attorney will not be held liable for failure to take proceedings for the review of a case unless he has been directed to do so, and he has agreed to and accepted that duty.

In this case, there was no agreement by the attorney to represent the client on an appeal of her case. Consequently, the fact that the attorney did not formally withdraw until after the time to file an appeal had run was of no significance. In fact, the relationship between the attorney and the client terminated upon entry of the final judgment.

Lesson: In Utah, attorneys appear to be under no obligation to bring an appeal on behalf of a client unless there is an agreement that they have agreed to and accepted such a duty. Nevertheless, the safest option would be to spell out in the retainer agreement and/or a timely disengagement letter that the attorney client relationship will end upon entry of a final judgment to avoid the possibility of confusion. 

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

MI: Underlying consultation for Personal Injury Claim; declined representation

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

Kopulos appealed. 

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

Ruling: No. 

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

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

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Cruciata v. Mainiero, Supreme Court, New York County, January 14, 2011.

Facts:  Plaintiff contended that she did not owe Defendant attorney, her former counsel, the legal fees he collected from her in the underlying divorce action since he, allegedly, never provided her with a statutorily compliant retainer agreement.  

Issues: Is an attorney entitled to legal fees if he fails to provide the required retainer agreement under 22 NYCRR 1400.3 - the statute applicable to New York family and divorce lawyers?  What qualifies as a "statutorily compliant" retainer agreement? 

Ruling: As to the first question, no.  As the Court observed, pursuant to the governing case law in New York, simple non-compliance is sufficient to preclude an attorney from recovering any fees.

Here, however, the Court found that Mainiero had served a conforming retainer.  The Court based its holding on the following factors:  (a) the retainer was signed by Mainiero and Cruciata; (b) it specified the work to be completed by Mainiero and the amounts to be charged for the work.

The Court found that such an agreement clearly sets forth the intention of the parties, and therefore, extrinsic circumstances and varying interpretations would not be considered.  Accordingly, the Court denied Plaintiff's motion to recoup her legal fees from Mainiero.

Lesson: In New York written, signed retainers are a must.  The agreement should spell out the scope of the attorney's duties, along with the fees to be charged.  Note that this particular statute contains a requirement not discussed in this case:  "In actions in Supreme Court, a copy of the signed agreement shall be filed with the court with the statement of net worth."

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Connelly v. Frohling, Hudak & McCarthy, P.C., N.J. App. Div., September 9, 2010 (Unpublished).

Facts:  After Plaintiffs' house sustained extensive damage, including destruction of the roof and resulting mold infestation, as a result of several storms, Plaintiffs sued their homeowners' insurer pro se.  After their complaint was dismissed, Plaintiffs consulted defendants with regard to reinstatement within the one year time frame.  Despite Plaintiffs' claim that the defendants had agreed to take their case on contingency, more than a year went by without an executed retainer agreement or reinstatement of Plaintiffs' complaint.  Plaintiffs then pursued this malpractice action.

Issue:  Can Plaintiffs establish an attorney-client relationship in the absence of an executed retainer agreement? 

Ruling:  Yes.  The Court considered, in detail, all of the factual circumstances by which Plaintiffs came to believe the defendants would handle their claims against the insurer.  The Court noted that Plaintiffs met with the defendant attorneys at their offices on multiple occasions, the attorneys comments to the effect that Plaintiffs had a "very strong case against [the insurer]," and that they "would be willing to help with the matter."

The Court further noted the firm's alleged willingness to accept the case "on a contingency fee basis" after reviewing documents related to Plaintiffs' claims against their insurer, including their insurance policy, proofs of payment, medical records, and maps of their property. 

When a retainer agreement finally was presented to Plaintiffs, it required them to pay a $10,000 retainer fee for "services rendered" to be "credit against" the "final bill."  Although these terms were allegedly different from what Plaintiffs had originally agreed to, at least one of the Plaintiffs signed the agreement given the impending deadlines. 

Subsequently, defendants prepared a certification for Plaintiffs to sign in support of their motion to reinstate which, allegedly, contained materially inaccurate statements pertaining to the delay in retaining counsel and Plaintiff's medical condition.  Shortly after Plaintiffs refused to sign this certification, defendants asked Plaintiffs to pick up their documents and "withdrew" their letter of engagement.

Despite defendants' position that they did not represent Plaintiffs in their claims against the insurer, the Court found that Plaintiffs had presented "more than adequate evidence to demonstrate defendants' negligence in not moving to vacate the dismissal in a timely manner and in failing to advise plaintiffs that the firm would not represent them."

Accordingly, the Court held that the first prong of a legal malpractice action - the existence of an attorney-client relationship - had been satisfied.  Upon finding that the Plaintiffs had presented at least some evidence of damages as a result of the defendants' alleged negligence, the Court reversed the dismissal of the malpractice action.

Lesson:  An attorney cannot rely on the absence of a fully executed retainer agreement to argue that an attorney-client relationship does not exist.  Courts will conduct a fact intensive analysis and consider (1) whether the attorney discussed the matter in any amount of detail with the prospective client; (2) whether the issue of attorney's fees was discussed or agreed upon; and (3) whether the attorney reviewed documents or performed any other investigation or work in connection with the prospective matter.  The decision suggests that this list is not exhaustive, and that each relationship will entail a different fact sensitive analysis.  The language used by the Court in coming to its determination demonstrates the need for attorneys to provide timely notice in all prospective cases they decide not to pursue.

Editor's Note:  As a side note, this matter also presents an interesting issue about whether a judge ought to recuse himself in legal malpractice matters where he fails to disclose the existence of prior malpractice claims filed against him in unrelated matters.  The Appellate Division noted: 

We know of no obligations of a trial judge to provide a list of malpractice claims filed against him or the firm with whom he practiced merely because it is requested without any additional contention or assertion warranting such a disclosure.

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Mamorella v. Derkasch, 716 N.Y.S.2d 211(2000).

NY: Underlying employment law

Student Contributor: Jason Zemsky

Facts: Plaintiff Mamorella was appointed to a three-year probationary appointment as principal of the Auburn West Middle School. One year into her employment the Superintendent of Schools sent plaintiff a letter notifying her of his intention to terminate her probationary appointment. Plaintiff contacted Empire State Supervisors and Administrators Association (ESSAA), an association of local bargaining units of public school administrators and supervisors across the State, which represents the bargaining unit to which plaintiff belonged to represent her. Derkasch was assigned to her case and filed a grievance against the school, which was denied. The plaintiff commenced the instant action against Derkasch for legal malpractice and against ESSAA for the negligence of Derkasch under the doctrine of respondeat superior, based upon the alleged status of Derkasch as an employee of ESSAA. The court dismissed the plaintiff’s claims finding that Derkasch was an independent contractor and that ESSAA cannot be held liable for negligent acts of an independent contractor. The plaintiff appealed.

Issue: Can an attorney who performs services on behalf of a union be held liable to individual members of the union where the services at issue constitute a part of the collective bargaining process?

Ruling: No. the plaintiff's legal malpractice claim is preempted by Federal labor law, and that attorneys who perform services for and on behalf of a union may not be held liable for malpractice to individuals where the services performed constitute part of the collective bargaining process.

Lesson: An attorney who is handling a labor grievance on behalf of a union as part of the collective bargaining process has not entered into an ‘attorney-client’ relationship in the ordinary sense with the particular union member who is asserting the underlying grievance.
 

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Staron v. Weinstein, 305 N.J. Super. 236 (App. Div. 1997).

Student Contributor:  Daniel Schick

NJ Underlying Personal Injury Action

Facts:  Staron was allegedly injured in an auto accident in October, 1985 and retained Weinstein to represent her in the pursuit of her personal injury claims.  The parties signed an "An Agreement to Provide Legal Services", the first page of which referred to "Sheldon G. Weinstein, Esq." as the "law firm" being retained.  The next page of the Agreement, however, listed "Robert C. Thelander, Esq.".  Weinstein further submitted a request for Personal Injury Protection benefits on Thelander's stationery with Weinstein listed as "Of Counsel".  Thelander disassociated himself from Weinstein's practice in September, 1986.  Weinstein continued to represent Staron through 1989, but never timely filed a Complaint with regard to her personal injury claims.

Several years later, Plaintiff bought a suit for legal malpractice against Weinstein and Thelander.

Issue:  Did Thelander owe any duty to Staron? 

Ruling:  Yes.

In the context of a motion for summary judgment, plaintiffs made a sufficient showing that Thelander's firm became counsel for plaintiffs by virtue of both the retainer agreement and the fact that defendant had at least apparent authority to enter into such agreements on behalf of the firm...Having become counsel for plaintiffs, it was the responsibility of the Thelander firm to either terminate the representation or give notice that it was terminated by virtue of Weinstein's departure.

In reaching its holding, the Court further noted that Thelander's role in Weinstein's cases and his entitlement to a share of the proceeds of any recovery obtained by Weinstein was not clear.  Moreover, it was not know what, if any, control mechanisms Thelander had in place to determine in what matters Weinstein had been retained in his capacity as "Of Counsel" to his firm. 

Lesson:  A law firm and its principals are ordinarily liable for wrongful acts and omissions of lawyers who have an "Of Counsel" relationship with the firm.  The scope of liability for acts of an "Of Counsel" lawyer may be affected by the terms of the Of Counsel relationship and the extent of the lawyer's affiliation to the firm apparent to the lawyer's clients.

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Togstad v. Vesely, Otto, Miller & Keef
291 N.W.2d 686 (Min. 1980)

Facts: Plaintiff had consulted with an attorney about bringing a medical malpractice claim. At the conclusion of the consultation, the attorney decided not to take the case, but failed to inform the client about the applicable statute of limitations, that he was not an expert in the field, or that she should consult with another attorney. Relying on the lawyer’s silence, the client did not bring an action until after the statute of limitations had run.

Issue: Was an attorney client relationship formed between the non-client and the attorney?

The Ruling: The trial court held that there was sufficient evidence to create an attorney-client relationship, and the Minnesota Supreme Court affirmed the decision based on the following factors:

1. The attorney acted as a legal advisor on the viability of the plaintiff’s claim. The non-client reasonably relied on that advice and on the attorney’s silence that his firm would not take the case.
2. It was reasonable for the non-client to rely on the attorney’s advice. An attorney-client relationship is created when one asks and receives legal advice from an attorney in circumstances where a reasonable person would rely on such advice.
3. The attorney’s advice injured the non-client. An attorney-client relationship comes into effect when an attorney gives legal advice, where it is reasonably foreseeable that the client will rely on the advice and could be damaged if the advice given by the attorney was incorrect.

The Lesson: When consulting with a non-client giving an opinion about the viability of a case will create an implied attorney-client relationship because he/she has the right to rely on the lawyer’s professional legal opinion. In order to prevent liability, its a good idea to send a “non-engagement” letter informing the prospective client about the applicable statute of limitations for his or her cause of action, and clearly stating that you are not their lawyer and that they should promptly seek other counsel to protect their legal rights. You might even gve them the local bar association's lawyer referral service.

Editor’s Note: For how little it takes to form an attorney-client relationship which can give rise to liability, see, Restatement of Law Governing Lawyers §14.

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A relationship of client and lawyer arises when:

1. a person manifests to a lawyer the person's intent that the lawyer provide legal services for the person; and either

• (a) the lawyer manifests to the person consent to do so; or
• (b) the lawyer fails to manifest lack of consent to do so, and the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the services; or

2. a tribunal with power to do so appoints the lawyer to provide the services.

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