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

Sandford v. Metcalfe, 110 Conn. App. 162, 954 A.2d 188 (Conn. App. 2008)

CT: Underlying estate  matter

Student Contributor: Laura Binski

Facts: Five days before her death, the client called her friend and lawyer, who was licensed to practice in New York, to visit her in Connecticut. The lawyer and client were not relatives. The client insisted that the lawyer draft her a new will to replace the one she had executed in 1962. The lawyer was reluctant, but eventually agreed to draft a handwritten will. The client specified that her estate be divided equally between the lawyer and the client’s handyman. The will did not make any provisions for residual beneficiaries. After the client died, the 1962 will and the handwritten will were submitted to Probate. The heirs at law tried to prevent the handwritten will from being admitted on the basis that the lawyer’s drafting of a will that would give her inheritance constituted the unauthorized practice of law, violated the Rules of Professional Conduct, and was contrary to public policy. The handwritten will was admitted, and the heirs at law appealed unsuccessfully. The court now considers the case to determine if the lawyer’s actions violate public policy.

Issue: Should there be a forfeiture of the bequest to a lawyer who drafted a will on the basis of public policy?

Ruling: No. The law governing descent and distribution is purely statutory, but the legislature has carved out exceptions to these statutes to deprive a supposedly rightful heir, falling within the ambit of those exceptions, of an otherwise unlawful inheritance. There is no statute barring a lawyer who drafted the will from inheriting by the will she drafted. Although the court finds that this lack of statutory exception is ill advised in terms of public policy, there is no bar against the lawyer in this case from inheriting under the client’s estate because the statutory provisions do not prohibit it.

Lesson: The court makes a point that this appeal considers only public policy issues, not violations of the Professional Rules of Conduct. When it comes to matters of public policy, the court will defer to the legislature and take on the view that if the legislature had intended an exception from the statutes, it would have said so. Thus, the court will not “create” an exception to conform to with the judge’s conception of right and wrong.

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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. 

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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.  

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Waldman v. Beck, 101 Conn. App. 669, 922 A.2d 340 (2007).

CT: Underlying personal injury matter

Student Contributor: Laura Binski

Facts: The client hired the lawyer to represent her in a personal injury claim. The lawyer failed to appear in court on behalf of his client on several occasions and the complaint was dismissed with prejudice. The client filed a legal malpractice claim based on the lawyer’s negligence. During a pretrial conference, the client and lawyer agreed upon a settlement of $20,000, to be paid within ninety days. The day after the conference, the lawyer contacted the client to tell her that he no longer agreed to pay the $20,000. The client then filed for the court to enforce the settlement agreement. The lawyer defended himself on the belief that the contract was unenforceable because of his communication refusing to pay the agreed upon amount. The court ruled in favor of the client and ordered the lawyer to pay the client $20,000 within ninety days.

Issue: Did the trial court properly decide against the lawyer in ordering him to pay the client $20,000 in order to enforce the settlement agreement?

Ruling: No. A trial court generally has the power to enforce a settlement agreement as a matter of law when the terms of the settlement are clear and definite and not in dispute. In this case, the trial court’s judgment award against the lawyer was directly in conflict with the terms of the settlement agreement. Thus, the court inappropriately used its discretion by rendering a judgment that contradicted the terms of the settlement agreement.

Lesson: “The court’s authority in these circumstances is limited to enforcing undisputed terms of the settlement agreement that are clearly and unambiguously before it, and the court has no discretion to impose terms that conflict with the agreement.” Janus Films, Inc. v. Miller, 801 F.2d 578, 582 (2d Cir. 1986). If the court enforced a settlement where the terms are unclear or in dispute, the court has gone beyond the scope of its power.

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Paul v. Gordon, 58 Conn. App. 724, 754 A.2d 851 (Conn. App. 2000)

Underlying real estate matter

Student Contributor: Laura Binski

Facts: The clients hired the lawyer to represent them in the negotiation of a lease (with option to buy). The clients had deposited $30,000 toward the purchase price when an issue arose regarding property repairs. The lawyer told the clients to stop paying rent to the landlord/seller. The landlord/seller began a summary process action. The lawyer told the clients he would “handle it.” Afterwards, the clients received no further communication from the lawyer. The clients were evicted and lost the $30,000 deposit. An investigation revealed that a default judgment for failure to appear had been rendered against the clients in the summary process action, yet the lawyer had never notified the clients of any court dates. The clients sued the lawyer for malpractice but did not disclose the names of any expert witnesses they intended to call at trial as is required by Connecticut law. The court granted the lawyer’s motion to preclude expert witnesses and ultimately granted the lawyer’s motion for summary judgment.

Issue: Was expert testimony necessary in the malpractice action to establish the negligence of the lawyer in the handling of the underlying summary process action?

Ruling: No. As a general rule, Connecticut requires plaintiffs in a legal malpractice action to introduce expert testimony to establish the standard of professional skill or care. However, an exception to this rule applies when “there is such an obvious and gross want of care and skill that neglect is clear even to a layperson.” Davis v. Margolis, 215 Conn. 408, 416 n. 6, 576 A.2d 489 (1990). In this case, expert testimony was unnecessary due to the lawyer’s failure to do anything at all to protect the clients’ interests.

Lesson: “The requirement of expert testimony in malpractice cases serves to assist lay people, such as members of the jury and the presiding judge, to understand the applicable standard of care and to evaluate the defendant’s actions in light of that standard.” Davis v. Margolis, 215 Conn. 408, 416, 576 A.2d 489 (1990). In this case, the lawyer told the clients he would “handle it,” and then basically abandoned the case without notice to the clients. A layperson would not have needed the help of an expert to determine that the lawyer here behaved with gross want of care and skill when his lack of action resulted in the clients’ eviction, relocation expenses, and loss of $30,000 deposit.

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Farnsworth v. O’Doherty, 85 Conn. App. 145, 856 A.2d 518 (2004).

CT: Underlying negligence case

Student Contributor: Laura Binski

Facts: In 1994, the clients hired the lawyer to help them recover money after the alleged negligent construction of an addition to their home. In 1995, the lawyer filed a complaint for the clients against the building contractor, the building engineer, and the town of Branford. Later that year, the lawyer no longer represented the clients. The clients were unsuccessful in their suit because the town engineer and the town claimed governmental immunity and the building contractor filed for bankruptcy. In 2001, the clients filed a legal malpractice complaint against the lawyer for negligence in failing to name the town building inspector as one of the defendants and failure to assert reckless and wanton disregard for health and safety in the complaint. The lawyer successfully moved for summary judgment on the grounds that §52-577 (the statute of limitations) barred the clients from suing her. The clients now appeal.

Issues: Does the statute of limitations prevent from bringing a legal malpractice claim against the lawyer? May the clients toll the statute of limitations claim under the doctrine of continuous representation?

Holding: Yes and no. §52-577 provides that “no action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.” Since the clients did not file the suit until more than four years after the alleged negligence conduct of the lawyer, they are time barred by the statute of limitations. The continuous representation rule provides that clients may toll the statute of limitations upon a showing that (1) the lawyer continued to represent them with regard to the same underlying matter and (2) either that the client was unaware of the alleged malpractice or the lawyer could still diminish the harm caused by that malpractice during the continued representation period. DeLeo v. Nusbaum, 263 Conn. App. 588, 821 A.2d 744 (2003). Since the lawyer ceased representation of the clients, they have failed the first prong of the continuous representation test and may not toll the statute of limitations.

Lesson: §52-577 is an “occurrence statute,” meaning that the time period within which a client must file a complaint begins at the exact time when the negligence complained of occurs, not the date when the client sustains damage. The “continuous representation” doctrine was established to ease the harsh consequences of the occurrence rule.
 

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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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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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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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Licata v. Spector, 26 Conn. Supp. 378, 225 A.2d 278 (1966).

CT: Underlying will matter

Student Contributor: Laura Binski

Facts: The client hired the lawyer to draft her last will and testament. The lawyer failed to ensure that the will provided the required number of witnesses. As a result, the Probate Court declared the will invalid and assets of the estate were given to persons other than the will’s intended beneficiaries. The intended beneficiaries filed a two count complaint: (1) the client’s estate has suffered damages of $7500, and (2) as a result of the lawyer’s negligence, assets of the client’s estate were diverted to other persons. The lawyer demurred on the basis that certain elements of the alleged damage were improper and that there was no duty owed to the beneficiaries because there was no privity of contract.

Issue: Can a legatee of a will that has been deemed invalid as a result of not meeting statutory requirements, by fault of the lawyer’s negligence, bring an action against the lawyer for the losses sustained by being deprived of his intended rights under the will?

Holding: Yes. The Court held that “liability for negligent performance of a contract, or nonperformance, should be imposed where the injury to a person is foreseeable. . .” The harm that would result from the lawyer’s negligence was well within the realm of reasonable foreseeability. Thus, a liability link is established even in the absence of privity, and the intended legatees had every right to establish their right to redress. Due to the technical nature of drafting a will and the privacy that is often involved in the drafting, it is the duty of the lawyer, not the person making the will or the intended beneficiaries, to ensure that the will is valid.

Lesson: Imposition of a duty to third parties under these circumstances is grounded in public policy. The Court justifies this decision by reasoning that public policy considerations tip in favor of the innocent third party seeking damages that are a result of an error over which they had no control or ability to correct. 

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

CT: Underlying real estate matter

Student Contributor: Laura Binski

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

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

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

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

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

CT: Underlying estate distribution matter

Student Contributor: Laura Binski

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

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

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

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

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

CT: Underlying real estate matter

Student Contributor: Laura Binski

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

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

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

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

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Caffery v. Stillman, 79 Conn. App. 192, 829 A.2d 881 (Conn. App. 2003)

CT: Underlying workers’ compensation action

Student Contributor: Laura Binski

Facts: On April 16, 1992, the client sustained injuries while working in the course of his employment for the city of New Britain. The client hired the lawyer to represent him in his workers’ compensation case in 1994. The case settled for $95,000. In 1997, the client sued the lawyer for legal malpractice for failing to adequately represent his case because the client felt he was entitled to more money. The court dismissed the case because the client had not first sought to re-open the workers’ compensation claim. The client then re-opened the workers’ compensation case and the court affirmed the original settlement amount. In 1999, the client again sued the lawyer for legal malpractice for negligence and breach of contract.

Issues: (1) Can the client’s claim be saved by the accidental failure of suit statute? (2) Do the allegations set forth a claim in contract or in tort?

Ruling: (1) No. §52-592, the accidental failure statute, provides that “a plaintiff must file an action for the same cause at any time within one year after the determination of the original action . . .” In this case, more than one year had passed between the date the court dismissed the client’s original action in 1997 and the date when this action was brought in 1999.

(2) The second claim was no more than a tort disguised in contract language. A client may not bring an action in both negligence and contract simply by saying that a lawyer breached the standard of care in the language of his employment contract. In this case, the client alleged that the lawyer had promised to bring a liability action against the city, and that the promise to bring such an action was premised on an inaccurate understanding of the law. The client claims that this incorrect understanding of the law caused him to suffer damages. Thus, the client’s allegation that the lawyer breached his contract by failing to meet the standard of care is in reality a negligence claim.

Lesson: The tort statute of limitations is three years, while a breach of contract statute of limitations does not run for six years. In this case, the client sought to avoid the statute of limitations by sounding his claim in contract rather than tort. This does not often work because the courts are very careful to delineate between tort and contract claims. 

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Caffery v. Stillman, 79 Conn. App. 192, 829 A.2d 881 (Conn. App. 2003)

CT: Underlying workers’ compensation action

Student Contributor: Laura Binski

Facts: On April 16, 1992, the client sustained injuries while working in the course of his employment for the city of New Britain. The client hired the lawyer to represent him in his workers’ compensation case in 1994. The case settled for $95,000. In 1997, the client sued the lawyer for legal malpractice for failing to adequately represent his case because the client felt he was entitled to more money. The court dismissed the case because the client had not first sought to re-open the workers’ compensation claim. The client then re-opened the workers’ compensation case and the court affirmed the original settlement amount. In 1999, the client again sued the lawyer for legal malpractice for negligence and breach of contract.

Issues: (1) Can the client’s claim be saved by the accidental failure of suit statute? (2) Do the allegations set forth a claim in contract or in tort?

Ruling: (1) No. §52-592, the accidental failure statute, provides that “a plaintiff must file an action for the same cause at any time within one year after the determination of the original action . . .” In this case, more than one year had passed between the date the court dismissed the client’s original action in 1997 and the date when this action was brought in 1999.

(2) The second claim was no more than a tort disguised in contract language. A client may not bring an action in both negligence and contract simply by saying that a lawyer breached the standard of care in the language of his employment contract. In this case, the client alleged that the lawyer had promised to bring a liability action against the city, and that the promise to bring such an action was premised on an inaccurate understanding of the law. The client claims that this incorrect understanding of the law caused him to suffer damages. Thus, the client’s allegation that the lawyer breached his contract by failing to meet the standard of care is in reality a negligence claim.

Lesson: The tort statute of limitations is three years, while a breach of contract statute of limitations does not run for six years. In this case, the client sought to avoid the statute of limitations by sounding his claim in contract rather than tort. This does not often work because the courts are very careful to delineate between tort and contract claims.
 

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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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Gombert v. Herzner, Conn. Super., September 9, 2010 (Unpublished)

CT: Underlying child abuse case

Facts: Plaintiff filed a complaint against defendant, who was appointed by the court as an attorney for his minor child in a neglect case against the child’s mother. During the course of such representation, the defendant filed a petition for termination of parental rights as to the plaintiff. Plaintiff alleged that he suffered loss of communication with his daughter and emotional stress as a result of defendant’s negligently filed petition for termination of his parental rights. Plaintiff also alleged legal malpractice against defendant for deviating from the standard of care required by attorneys who represent children, and for failing to advocate the position of the child.

The Defendant filed a motion to dismiss the complaint arguing that she is entitled to absolute quasi-judicial immunity as an attorney for a minor child, and that plaintiff lacks standing to pursue his claims against the defendant.
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Issue: Is Defendant is entitled to quasi-judicial immunity as an attorney appointed to represent a minor child?

Ruling: Yes. Attorneys appointed by the court pursuant to statutory law of Connecticut are entitled to absolute, quasi-judicial immunity for actions taken during or activities necessary to the performance of functions that are integral to the judicial process. The purpose of appointing counsel for a minor child is to ensure independent representation of the child’s interests, and such representation must be entrusted to the professional judgment of appointed counsel within the usual constraints applicable to such representation. Absolute immunity in this situation is both appropriate and necessary in order to ensure that the guardian will be able to function without the worry of possible later harassment and intimidation from dissatisfied parents.

The Court ruled that plaintiff also lacked standing to bring this legal malpractice action against defendant because there was never an attorney-client relationship between the defendant and plaintiff. And while plaintiff attempted to argue next of friend of the minor child, it has been recognized by the Connecticut Supreme Court that in order to have standing to bring a claim as next of friend, a person must “1) must be truly dedicated to the best interests of the person on whose behalf he seeks to litigate…[and] 2) must provide an adequate explanation such as inaccessibility, mental incompetence, or other disability why the real party in interest cannot appear on his own behalf to prosecute the action.” The plaintiff in this case fails to meet the criteria and, therefore, lacks standing.

Lesson: Court appointed counsel for minor children are entitled to absolute, quasi-judicial immunity.
 

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