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

Roberts v. Chimileski, 820 A.2d 995 (Vt. 2003)

VT: Underlying Real Estate Subdivision; Environmental Law

Student Contributor: Eric B. Kang

Facts: Client, a real estate developer, consulted lawyers about a statute’s permit requirements concerning the subdivision of land into ten or more lots. The language pertinent to client stated that developers subdividing land into lots of any size needed to acquire a permit if they “owned or controlled” the land being subdivided. Lawyers advised client that land sales could still occur legally without a permit if the original owner prepared the subdivision first and then conveyed the lots to client so that client would not “control” the lots during subdivision. This way, the client would cover the costs and handle the preparation of the subdivision plan. At this juncture, the definition of “control” was legally ambiguous. Lawyers did not advise client of the potential illegality of this method of operating (“method”) because they believed they had no duty to advise client of the potential risk because it was too remote and tenuous. Client proceeded to complete over 100 transactions employing the lawyers’ suggested method. Thereafter, the Vermont Environmental Board issued declaratory rulings in cases involving circumstances similar to the method suggested by the lawyers and held that a permit was required because a buyer who manipulated the property before a sale fell within the statute’s definition of “control.” Upon learning of this decision, lawyers advised client that there were serious doubts now raised about the legality of the method. Nevertheless, client proceeded to make another transaction using the method after receiving this information. Thereafter, the State prosecuted client for making illegal subdivisions. Client then sued lawyers for malpractice alleging that they breached the standard of care of a Vermont attorney by failing to research and advise client of the ambiguous meaning of “control” within the statute. After the trial court held for lawyers, client appealed.

Issue: Are lawyers liable for malpractice for speculating in regards to ambiguous language in a statute?

Ruling: No. The court agreed with the trial court, which held that lawyers “could not be held negligent for their participation in the [method] because the definition of ‘control’ was a professional opinion regarding the interpretation of an unsettled area of the law, and they were thus shielded by the ‘judgmental immunity’ doctrine, which protects attorneys from liability for their opinions in areas of unsettled area of law.” Further, once the lawyers found out about the Vermont Environmental Board’s ruling, they advised client about the possible illegality of the method. Although client tried to make the additional argument that lawyers should have advised client about the risky nature of the method due to the unsettled definition of “control,” their argument fails because even after lawyers notified client about the Vermont Environmental Board’s ruling, client proceeded to continue with the unlawful development method.

Lesson: Lawyers are shielded from liability for professional services and opinions unsettled areas of law. Nonetheless, it is prudent to advise the client of the uncertainty of the law and that if client proceeds they may be subject to legal risks. 

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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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Fraser v. Bovino, 317 N.J.Super. 23 (App. Div. 1998)

Student Contributor: Lisa Larato

NJ Underlying Real Estate/Land Use Transaction

Facts: A deal for the sale of land fell through due to delays caused by challenges to the municipal approval of a condominium project. The real estate agent (Fraser) and the landowners (Genlaws) brought an action against the adjoining landowner (Defendant Bovino) who objected to the condominium project, his attorney, and others involved in ruining the deal. Fraser asserts that Bovino’s attorney (Allen) committed malpractice and acted unethically. The Genlaws also filed a claim against their attorneys Martini and Blessing who had been retained to prosecute their action against Bovino and his attorney.

The only claims still viable for the Genlaws were those which fell under the six year statute of limitations. It was undisputed that the attorneys returned the Genlaws’ file to them a few weeks before this statute of limitations expired, on January 28, 1997. The complaint, however, was not filed until April 25, 1997.

The Superior Court, Law Division, granted summary judgment to certain defendants in both actions. Appeals were filed and consolidated.

Issues: (1) Is Bovino’s attorney liable to the real estate agent, Fraser, for legal malpractice? (2) Are Martini and Blessing liable to the Genlaws for failure to file a timely complaint?

Ruling: (1) Bovino’s attorney (Allen), representing an individual who contested the proposed land use application, did not owe Fraser, the broker, even a limited duty of care. (2) Since Martini and Blessing returned the Genlaws’ file to them several weeks before the statute of limitations on their claims expired, their withdrawal from representation did not adversely affect the clients’ interests so as to warrant liability.

Lesson:

• Allen, who was not Fraser’s attorney, but the attorney of his adversary, did not owe Fraser any level of a duty of care so as to make him liable to Fraser under a professional malpractice claim.
• Under New Jersey Rule of Professional Conduct 1.16, Martini and Blessing did not commit malpractice because they (1) did not wait for the statute of limitations to run before withdrawing, and (2) left enough time for the Genlaws to file their complaint within the statute of limitations. That the Genlaws failed to timely file their complaint, was entirely their own negligence, and bore no relation to the decision of Martini and Blessing to withdraw as counsel in a timely manner.

Editor's Note: In  all cases, make sure that before withdrawing, there is a reasonable amount of time left for the client to get substitue counsel to file a complaint before the statute of limitations runs. If it's getting close, consider a pro se complaint for the client thus giving the client even more time to get new counsel and thereby preventing the client's claim from becoming time barred. Do what is reasonable to help the client preserve their cause of action if you're not going to continue with representation, at least until they get new counsel.

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