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

Don v. Soo Hoo, 75 Mass. App. Ct. 80 (2009)

MA: Underlying Botched Bankruptcy Proceedings

Student Contributor: Jason W. Hake

Facts: A client retained the defendant law firm to file a bankruptcy petition on her behalf while he earned $8,000.00 per year. The attorneys forgot to file his petition and discovered their error three (3) years later when the client was earning $30,000.00 per year. The attorneys filed the petition and the bankruptcy trustee concluded that she could pay her debts and dismissed the petition. The client sued his attorneys for negligence, breach of contract, breach of the covenant of good faith and fair dealing, and for violation of Mass. Gen. Laws Ann. Ch. 93A. The jury awarded the client $16, 913.00 in damages. The attorneys appealed for judgment notwithstanding the verdict.

Issue: Did the jury properly find in favor of the client?

Ruling: Yes. The evidence properly supported the jury’ finding that but for the attorney’s negligence, the client would have received a discharge of her debts at an earlier date when she was making only $8,000.00 per year. The jury’s finding was also supported by the evidence which demonstrated that the client’s creditor’s were still interested in commencing lawsuits against her, as she was receiving demand letters and was no longer ‘judgment proof”. The amount of damages awarded by the jury were also supported by the evidence documenting the debt owed by the client.

Lesson: Beware of skeletons in the closet. It is extremely important to manage your case-load and document important dates and client goals and anticipate changes in circumstances which could adversely affect your clients.  

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Wagenmann v. Adams, 829 F.2d 196 (1st Cir. September 9, 1987).

Facts:  After what appeared to be a series of misunderstandings between Wagenmann and his family members, Wagenmann was searched and arrested without a warrant, brought to a holding cell, and ultimately, involuntarily admitted to a mental hospital.  His court-appointed attorney, Healy, entered a general appearance on Wagenmann's behalf in connection with the commitment proceedings, bail and criminal charges.  

Allegedly, Healy never inquired as to what had happened, but did say that he was a friend and fellow parishioner of one of the individuals who had been responsible for reporting Healy to the police.  When Wagenmann asked Healy to withdraw and get him another lawyer, Healy apparently refused.  Healy also refused Wagenmann's requests to be brought before a judge.  

Instead, Healy proposed that Wagenmann immediately leave town or agree to be committed to a mental hospital. Wagenmann refused and a psychiatrist present at the time saw no grounds upon which Wagenmann could be admitted.  Healy then commented "maybe in New York you're something, but [in Massachusetts], you're nothing," and left.  

Wagenmann was later informed that he had in fact been committed to a mental hospital for a twenty day observation period.  After some time, Wagenmann was visited by a psychiatrist who saw no basis to justify his admission and arranged for his immediate release.

Wagenmann subsequently sued Healy for legal malpractice, requesting damages for emotional distress.  Wagenmann was awarded damages against Healy and Healy appealed.

Issue:  Is a Plaintiff in a legal malpractice suit entitled to damages for emotional distress? 

Ruling:  Yes, if it is foreseeable from the attorney-client relationship that a breach of the applicable standard of care will cause the client to suffer a loss of liberty or social stigma.

The Court noted that "an attorney who commits malpractice is liable to client for any reasonably foreseeable loss caused by his negligence."  If it were otherwise, especially in situations where the attorney-client relationship was based on something other than the client's economic concerns, the attorney would effectively be immunized from liability even though he exposed his client to a "parade of horribles."

Here, Wagenmann was entitled to damages for emotional distress -- He had been involuntarily confined to a mental hospital as a result of his attorney's negligence and alleged misconduct.  This, in turn, caused Wagenmann continuing anguish and fear that others, including prospective employers, would learn of it and question his sanity.  Consequently, the Court concluded: 

That Healy was guilty of malpractice in the defense of commitment proceedings, rather than in the prosecution of a civil claim for damages, is no reason artificially to shield him from the condign consequences of his carelessness. 

Lesson:  Emotional damages are recoverable in legal malpractice action where the client's damages include something other than a purely economic loss, i.e. incarceration, false imprisonment, or significant injury to reputation. 

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Fishman v. Brooks, 396 Mass. 643; 487 N.E.2d 1377 (1986) (PDF)

MA Underlying Personal Injury Action

Student Contributor: Natalie Resto

Facts: Brooks hired Fishman to represent him in an action for personal injuries he sustained when a negligently operated motor vehicle collided with the bicycle Fishman was riding. Fishman did not commence the personal injury suit until 16 months after the accident, and did not obtain service on the driver defendant for more than 10 months after filing the complaint. He also made a settlement demand of $250,000 on the driver’s insurer when the insurance coverage was $1 million. Shortly before trial, after Fishman told Brooks that he could not win if he went to trial, Brooks agreed to settle his personal injury claim for $160,000. The client sued the attorney for malpractice. The jury found for clients and the attorney appealed.
     
Issue: Whether the trial court properly admitted the testimony of an adjuster and tort lawyer as to liability and causation?

Ruling: The court affirmed the lower court’s holding. It found that expert testimony from an experienced tort lawyer and an experienced claims adjuster as to reasonable settlement value of underlying claim was properly admitted, and that

evidence of the fair settlement value of the underlying claim was admissible to prove not only Fishman’s negligence but also that his negligence caused a loss to Brooks. Id. at 648.

Lesson: An attorney is liable when he causes a client to settle a claim for an amount below what a properly represented client would have accepted. The court states that the typical case of malpractice liability for an inadequate settlement involves an attorney who, having failed to prepare his case properly or lacking the ability to handle the case through trial (or both), causes his client to accept an unreasonable settlement.

EDITOR'S NOTE: With our thanks to Westlaw, Thomson Reuters for permitting the case hyperlink.

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