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

Wright v. Rinaldo, 279 Mich App 526, 533 n 3; 761 NW2d 114 (2008)

MI: Underlying IP

Student Contributor: Matthew Feinbloom

Facts: In August 2000, Mr. Rickie Wright hired  Ronildo as his attorney in a patent case against the United States Patent and Trademark Office. Three years after hiring Ronildo, Wright was unsatisfied with her work. Wright met with other patent attorneys and on December 18th, 2003 Wright signed a document that revoked Ronildo’s power of attorney. At this time Wright also signed the power of attorney over to another lawyer who then took over the case. Wright also instructed the Patent Office that all correspondence was to go through his new counsel. After key errors were made in the pursuit of this patent, Wright filed a legal malpractice suit against Ronildo on February 16, 2006. The lower court granted summary judgment for Ronildo holding that the attorney/client relationship ended on December 18th, 2003 thereby barring Wright’s action due to the two-year statute of limitations.

Issue: Does the attorney/client relationship end once the client revokes the power of attorney, hires new counsel and reassigns the power of attorney?

Ruling: Yes. Under Michigan law it does not have to be the court that effectively terminates the attorney/client relationship. If Wright had truly wanted Ronildo to stay on as co-counsel there would be no need to revoke her power of attorney. This revocation, along with the hiring and transfer of power of attorney to a new lawyer affirmatively communicated to Ronildo that she had been replaced and the attorney/client relationship had ended. Under MI law, “The client's action for malpractice is time-barred unless it is brought within two years from the date the claim accrued or arose (i.e., the date that services were discontinued), or within six months of the date that "the plaintiff discovers or should have discovered the existence of the claim, whichever date occurs later.” MCL 600.5805(6); MCL 600.5838(2); Kloian v. Schwartz, 272 Mich. App. 232, 237, 725 N.W.2d 671 (2006). Therefore Ronildo’s motion for summary disposition was properly granted because two years had passed since the claim arose.

Lesson: Revoking the power of attorney, hiring a new lawyer, and giving that new counsel power of attorney is enough to terminate the attorney/client relationship. Once this relationship is over the statute of limitations begins to run on the amount of time the client is permitted to sue for malpractice.

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Pantely v Garris, Garris & Garris, PC, 180 Mich App 768, 773; 447 NW2d 864 (1989)

MI: Underlying uncontested divorce

Student Contributor: Matthew Feinbloom

Facts: A couple was getting divorced so they hired a lawyer to represent both of them in the proceeding. In the report, the woman claimed that she had been living in Livingston County for at least ten days before filing the papers. It became clear to the court that she had lied about this fact and now they attempted to have this modified to show the truth. Because she lied about this, the court that filed the divorce did not have jurisdiction and the divorce was set aside. The woman then filed a malpractice claim against their attorney claiming that he counseled her to testify falsely and then after to have her hire an incompetent lawyer. The first lawyer claimed that she was also at fault and should not be able to profit on the grounds of her on perjury. The newer attorney claims that he had nothing to do with this case because at the time of the perjury he was not even her legal representation. The lower courts agreed and held for the attorneys.

Issue: Can a client who perjures herself recover damages caused by the failed deceit from the lawyer who counselled the lie?

Ruling: The court agreed with the lower court concluding that a client who perjures herself cannot recover damages caused by the failed deceit from the lawyer who counseled her to lie. The court used the maxim, in pari delicto potior est conditio defendentis (in cases of equal fault, the position of the defendant is stronger). The woman was at equal fault here because she knew the truth of the matter and told the lie anyway. The court did not find it right that she should be able to profit from her own lie.

Lesson: If you perjure yourself in court at the counsel of an attorney, you cannot sure him for malpractice afterwards.

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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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Lickteig v Alderson, Ondov, Leonard, & Sween, P.A. 556 N.W.2d 557

MI: Underlying damages for emotional distress in a claim for legal malpractice

Student Contributor: Meghan Jean

Facts: Attorneys were admittedly negligent in the handling of the client, Lickteig’s case. At arbitration, Lickteig was awarded $45,000 in general damages, and $45,000 in emotional distress damages. The attorneys appealed the arbitrators judgment on the award of emotional distress.

Issue: Whether in a legal malpractice suit, a judgment for emotional distress is proper.

Ruling: Not generally. The award for emotional distress is narrow. In order to be awarded under this complaint, it must be shown that the attorney acted negligently or in breach of contract. Extra-contractual damages, including those for emotional distress, are not recoverable for breach of contract except in those rare cases where the breach is accompanied by an independent tort. Where the crux of the complaint is the breaching of a contract or the negligent representation of a client, unless some willful malicious act is done against the client, an award for emotional distress is not justified. Because the client, Lickteig, did not allege any willful or wanton act against her by the attorneys, the trial court’s award of emotional distress damages was improper.

Lesson: Willfully harming your client will not only create a claim for legal malpractice, but will also give rise to damages for emotional distress.

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Bush v. Goren, Michigan Court of Appeals, February 1, 2011. 

Facts: In 2005, Plaintiffs consulted the defendant attorneys with respect to a medical malpractice claim related to a cardiac surgery completed on August 24, 2004 to evaluate the safety of a new vascular closure device.  After obtaining opinions of various cardiologists and vascular surgeons, the Defendant attorneys opted not to pursue the matter. On June 5, 2006, advised Plaintiff that the statute of limitations for her claim may expire within the next two months.  

Plaintiff was not successful in locating another attorney, allegedly because of the two-month time frame remaining for her medical malpractice claim.  She subsequently filed a malpractice action against the Defendants alleging that they were negligent in not advising her that the products liability statute of limitations did not expire for another year, until August, 2007.

Defendants argued that their decision not to mention the products liability claim, or the applicable statute of limitations, was protected by the "attorney judgment rule."  In other words, they believed "in good faith" that plaintiff would advise any subsequent attorney about the use of the medical device, and that attorney would know the statute of limitations.

Issue: Did Defendants commit malpractice by not addressing each of Plaintiffs' potential claims and applicable statute of limitations in their disengagement letter? 

Ruling: Maybe. 

In drafting his closing letter to his clients, defendant was not making a tactical decision in which he had to choose between courses of action in an adversarial situation whose viability turned on many factors beyond his control such as the actions of an opposing counsel or the unknown views of a judge or jury. Rather, defendant, in the controlled environment of his own office was advising plaintiffs, whose case he had declined, what options they retained and what they had to do to exercise those options. We reject the argument that giving only partial advice about a matter as fundamental as the applicable statute of limitations when sending a closing letter to a client can be viewed as a matter of tactics. An attorney and his or her advice certainly need not be perfect or infallible. However [] all attorneys have a duty to behave as would an attorney of ordinary learning, judgment or skill under the same or similar circumstances.

While the failure to include the information in the disengagement letter was not protected by the "attorney judgment rule," it may or may not have been "malpractice":

Plaintiffs presented the trial court with affidavits from two attorneys. One stated that, in his professional opinion, the standard of practice for a lawyer in defendant's position required him to tell plaintiff of both statutes of limitations applicable to her claims and that the failure to do so constituted a breach. The other relied on Michigan Rule of Professional Conduct (MRPC) 1.4(b) and a Michigan Ethics Opinion discussing that rule to state that he concluded that defendant's action violated that rule. Based on the rule and the opinion, he also opined that plaintiff could not make an informed decision about how to pursue her products liability claim when she was not informed of the applicable statute of limitations; and that defendant's position that he was justified in withholding information from plaintiff on the ground that he believed it to be in her best interest was without merit.

The Court held that whether or not Defendants exercised reasonable care, skill and diligence under the circumstances would be a fact question to be ultimately resolved by a jury. 

Lesson: The attorney judgment rule does not automatically shield an attorney who provides an allegedly incomplete legal analysis to his or her client.  To err on the safe side, a disengagement letter might lay out the facts presented by the client to the attorney, each of the potential causes of action, and the amount of time within which the client must act to preserve each potential claim.

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Laethem Equipment Co. v. Currie Kendall, P.L.C., Court of Appeals of Michigan, January 13, 2011. 

Facts: Plaintiffs settled an underlying family dispute and then sued Currie Kendall for legal malpractice and breach of fiduciary duty.  Defendant moved for dismissal claiming the lawsuit was barred by the settlement agreement and release that resolved the underlying litigation.

The trial court agreed with Currie Kendall and Plaintiffs appealed.

Issue: Did a settlement in the underlying action bar Plaintiffs from bringing a suit for legal malpractice?

Ruling: No - at least, the terms of this settlement/release did not.

The Michigan Court of Appeals analyzed the issue solely from the perspective of contract law: 

The 'parties' to the settlement agreement and release are clearly set forth in the opening paragraph and defendant, Currie Kendall, P.L.C., is not a named party. Defendant represented parties in the settled litigation, but was not itself a party in that underlying litigation.  Defendant was not included by name in the excluded release and did not itself execute the release.  Nevertheless, defendant claims a right to benefit from and enforce the terms of the release.

The Court went on to explain that the release's reference to "claims by or against any persons in their individual or representative capacities " did not refer to a law firm that represented various parties in the settled litigation.  This language, the court held, had to be read in the context of the remainder of the agreement.  In other words, it was merely further describing the types of claims being released by the individuals named therein.  It was not adding a different category of individuals being released, i.e. the attorneys involved in negotiating and drafting the settlement.

The Court distinguished this language from a release in a different matter wherein the language might bar subsequent suits against attorneys: "[that release] specifically included as being released [a police officer], [a municipal organization], [an insurer], together with all other persons, firms and corporations, from any and all claims...".

Lesson:  In Michigan, an attorney should not have an expectation that he cannot be sued for malpractice after a settlement in the underlying litigation, unless the release specifically mentions third-parties, including attorneys, involved in a representative capacity.

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Wright v. Rinaldo, 279 Mich App 526; 761 NW2d 114 (2008)

Underlying patent prosecution USPTO

Student Contributor: Matthew Feinbloom

Facts: In August 2000,  Wright hired  Ronildo as his attorney in a patent case before the United States Patent and Trademark Office. Three years after hiring Ronildo, Wright was dissatisfied with her work. Wright met with other patent attorneys and on December 18th, 2003 Wright signed a document that revoked Ronildo’s power of attorney before the USPTO. At this time Wright also signed the power of attorney over to another lawyer who then took over the case. Wright also instructed the Patient Office that all correspondence was to go through his new counsel. After key errors were made in the pursuit of this patent, Wright filed a legal malpractice suit against Ronildo on February 16, 2006. The lower court granted summary disposition for Ronildo holding that the attorney/client relationship ended on December 18th, 2003 thereby barring Wright’s action due to the two-year statute of limitations.

Issue: Does the attorney/client relationship end once the client revokes the power of attorney, hires new counsel and reassigns the power of attorney?

Ruling: Yes. Under Michigan law it does not have to be the court that effectively terminates the attorney/client relationship. If Wright had truly wanted Ronildo to stay on as co-counsel there would be no need to revoke her power of attorney. This revocation, along with the hiring and transfer of power of attorney to a new lawyer affirmatively communicated to Ronildo that she had been replaced and the attorney/client relationship had ended. Under MI law, “The client's action for malpractice is time-barred unless it is brought within two years from the date the claim accrued or arose (i.e., the date that services were discontinued), or within six months of the date that "the plaintiff discovers or should have discovered the existence of the claim, whichever date occurs later.” MCL 600.5805(6); MCL 600.5838(2); Kloian v. Schwartz, 272 Mich. App. 232, 237, 725 N.W.2d 671 (2006). Therefore Ronildo’s motion for summary disposition was properly granted because two years had passed since the claim arose.

Lesson: Revoking the power of attorney, hiring a new lawyer, and giving that new counsel power of attorney is enough to terminate the attorney/client relationship. Once this relationship is over the statute of limitations begins to run on the amount of time the client is permitted to sue for malpractice.

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Hall v. Cohen, Michigan Court of Appeals, February 18, 2010

Facts:  The defendant attorney represented plaintiff in a matrimonial matter, and after settlement of the matrimonial action, plaintiff brought suit against her attorney for malpractice.  The trial court granted summary judgment in favor of the defendant attorney, and granted the attorney's counterclaim for unpaid legal fees.  Plaintiff appeals.

Issue:  Can Plaintiff sue for malpractice after consenting to a settlement in the underlying matrimonial action? 

Ruling:  No.  The Court first set forth the standard for pursuing a malpractice action after settlement in the underlying matter:

When a settlement is compelled by the mistakes of the plaintiff's attorney, the attorney may be held liable for causing the client to settle for less than a properly represented client would have accepted...Additionally, a cause of action for legal malpractice may be raised when it can be shown that the client's consent to the settlement was compelled because prior misfeasance or nonfeasance by the attorney left no other recourse.

In applying that standard to the facts of this case, the Court noted that Plaintiff's statements under oath at the settlement hearing indicate that she "knowingly and voluntarily" entered into the agreement.  Further, Plaintiff was unable to demonstrate that her attorney's alleged failure to enforce prejudgment orders, or her alleged threat to withdraw from the action, caused her to settle.  Accordingly, the Appellate Division affirmed the trial court's decision to dismiss Plaintiff's complaint and award payment of outstanding legal fees.

Lesson:  Where Plaintiff knowingly and voluntarily settles her action, and cannot present any factual basis upon which the Court can conclude that her decision to settle was the result of her attorney's professional negligence, Plaintiff may not "settle and sue."

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Harris v. Farmer, Court of Appeals of Michigan, February 4, 2010

Facts:  Defendant served as Plaintiff's court-appointed attorney in a criminal proceeding in which plaintiff was charged with identity theft.  The prosecution alleged that plaintiff attempted to use another individuals social security number to obtain employment.  Plaintiff was convicted and his claim for ineffective assistance of counsel was rejected. 

Plaintiff subsequently filed an action for legal malpractice against his court-appointed attorney, alleging that he had failed to properly cross-examine a witness, failed to object to evidence offered by the prosecution, and failed to present necessary evidence.  The attorney moved for summary judgment, and the lower court granted his motion.  Plaintiff appealed.

Issue:  Are counsel's alleged shortcomings at trial actionable as professional negligence? 

Ruling:  No. 

Although an attorney has the duty to fashion a strategy so that it is consistent with prevailing Michigan law, he does not have a duty to ensure or guarantee the most favorable outcome possible

***

[M]ere errors in judgment by a lawyer are generally not grounds for a malpractice action where the attorney acts in good faith and exercises reasonable care, skill, and diligence.

The Court further noted that even if the attorney had done everything Plaintiff complained he did not do, the result of the proceeding would not have been different.  Accordingly, the Court affirmed the dismissal of the malpractice action.

Lesson:  Decisions involving trial tactics or litigation strategy are not subject to attack in an action for legal malpractice pursuant to Michigan law.  This is especially so where counsel's professional judgment was not the cause in fact of his former client's alleged injuries. 

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