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

Rizzo v. Haines, 520 Pa. 484, 555 A.2d 58 (Pa. 1989)

PA Underlying Personal Injury and Medical Malpractice

Student Contributor: John Anzalone

Facts: Plaintiff retained Defendant Attorney to represent him in a personal injury case against Philadelphia and in a related medical malpractice case. Settlement offers were made by Philadelphia and were not conveyed to Plaintiff before Defendant rejected them. Later, at defendant's suggestion, Plaintiff settled the personal injury case, believing the medical malpractice case was viable since Defendant claimed that it was. A fee dispute then took place between Defendant and Plaintiff's prior attorney, in which the attorneys' claims for 50,000 dollars in an escrow account were rejected by the court which ordered that the funds be returned to Plaintiff. However, Defendant was later able procure them from Plaintiff as a "gift." The medical malpractice case was subsequently dismissed on summary judgment. Plaintiff then sued for legal malpractice alleging negligence and a breach of the attorney's fiduciary duty. The lower court held for Plaintiff.

Issue: Was an expert witness's testimony regarding the breach of the standard of care required?

Ruling: In affirming the lower courts ruling, the Pennsylvania Supreme Court held an expert witness's testimony regarding the breach of the standard of care was not required, based on the following considerations:
1) Attorneys commit malpractice if they fail to use "ordinary skill and knowledge" in settlement negotiations and that failure damages their client.
2) Defendant had a duty to investigate the settlement offers made and to convey them to his client. His failure to do so breached his duty to the client. This breach was accompanied by harm, so malpractice occurred.
3) The court held that this breach of duty does not require an expert witness's testimony. The average person would know that failing to investigate a settlement offer is a breach of the attorney's duties.
4) Expert testimony was also not needed about the breach of fiduciary duty because the Code of Professional Responsibility establishes these duties and prohibits an attorney from suggesting that the client make a gift to the lawyer. (Code of Professional Responsibility EC 5-5).

Lesson: Expert testimony is not required in Pennsylvania when the breach would be obvious to an average person or when the rules governing professional conduct in the state have been violated. 

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Antonis v. Liberati 821 A.2d 666 (Pa. Cmwlth. 2003)

Student Contributor: Evan Kusnitz

PA Underlying Mortgage Transaction

Facts: Plaintiff hired Attorney to prepare a mortgage and note as a security on a loan to Borrower. Attorney delivered the documents to the Recorder of Deeds. Plaintiff called Attorney several times to ask if the mortgage was recorded correctly, and Attorney repeatedly assured him that it was. However, due to a clerical error, the mortgage was in fact not recorded correctly. As a result, Borrower was able to sell the land subject to the mortgage without disclosing the existence of the mortgage, and without paying anything to Plaintiff. Plaintiff successfully sued Attorney. On appeal, Attorney argued that the trial court erred by not requiring expert testimony to show that he had a duty to Plaintiff to ensure that the mortgage was recorded correctly. Attorney also argued that Borrower’s fraud was an intervening cause of Attorney’s harm.

Issue:

1. Is expert testimony required to show that an attorney has a duty to a client to ensure that a mortgage is recorded correctly?
2. Is a borrower’s fraud––selling mortgaged land without disclosing the incorrectly recorded mortgage––an intervening cause of any harm caused by an attorney’s failure to ensure the mortgage was correctly recorded?

Ruling: In affirming the decision of the trial court, the appellate court ruled:

1. Expert evidence . . . is not required when the issue of negligence is clear enough to be concluded as a matter of law.

Since it is the responsibility of the mortgagee to ensure that the mortgage has been properly recorded, that duty undoubtedly falls upon his attorney, who represents him in the matter.

2. A borrower’s fraud is not an intervening cause of the harm caused by an attorney who failed to ensure that a mortgage was correctly recorded. If the attorney did not breach his duty to his client, the fraud could have never happened.

Lesson:

1. A mortgagee’s attorney has a duty to ensure that the mortgage is recorded correctly.

2. When an attorney’s negligence is obvious, expert evidence may not be required.

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Brizak v. Needle,  239 N.J. Super. 415, 571 A.2d 975 (1990)

Student Contributor: Maninder (Meena) Saini

NJ Underlying Statute of Limitations and Duty to Investigate

Facts: Plaintiff-client commenced a malpractice lawsuit against defendant-attorney, alleging the defendant was negligent by failing to file a medical malpractice claim before the expiration of the statute of limitations (“SOL”). The defendant argued the SOL did not start until there was expert opinion recognizing that medical malpractice had occurred. The facts are as followed: In 1981, plaintiff sustained an arm injury and was treated by Dr. Shafi. Instead of conducting surgery, the doctor simply placed her arm in a hanging cast. On December 5, 1983, plaintiff retained defendant to pursue an action against Dr. Shafi because she was still suffering from the affects of her arm injury. In May 1984, the defendant requested a copy of the hospital records. Next, in March 1985, the defendant obtained an opinion from a radiologist who advised defendant that no malpractice transpired. In June 1987, defendant obtained another medical expert opinion that held malpractice had occurred.

Issue: When does the “discovery” rule apply in any given case?

Ruling: The “discovery rule” tolls the statute of limitations when one “is either unaware that he has sustained an injury, or although aware that an injury has occurred, he does not know that it is, or may be, attributable to the fault of another.”  When one knows or has reason to know of the injury, the SOL starts to run.

Issue: What is the scope of a lawyer's duty  to investigate the basis of a client’s claim?

Ruling: An attorney must undertake a reasonably diligent investigation to determine if there is a  basis for commencing an action and when the statute of limitation starts to run.
The appellate court stated the “[d]efendant’s clearly erroneous advice to plaintiff that she need not be concerned about the time limitations until she found a physician to support her claim was itself a sufficient basis for linking his negligence to her failure to commence a timely action against the doctor.” The SOL started in December 1983 when the plaintiff had suspicion of the malpractice and retained a lawyer.  

Lesson: The defendant was not diligent in his investigation of the  medical malpractice nor of the ascertaining the date the cause of action accrued in order to determine the correct statute of limitations. . An attorney has a duty to take any steps reasonably necessary to properly handle the case which includes the duty to investigate and to file any action necessary for recovery within the applicable  time period.

Moreover, said the Court:

...[the] attorney who litigates a legal malpractice claim without the opinion testimony of a legal expert unnecessarily exposes his client to a serious risk...

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Kaplan v. Skoloff & Wolfe, P.C. 770 A.2d 1258 (N.J.Super.A.D., 2001)
NJ Underlying Divorce Action Settlement

Student Contributor: John Anzalone

Facts: Attorney represented Plaintiff in a divorce proceeding. Plaintiff alleged that because of the attorney negligence in negotiating a property settlement agreement, she received less than she was entitled to when she accepted it. Plaintiff's expert concluded that the settlement was not adequate by comparing what she received to anecdotal evidence as to what he got for one former client recently. As a professional negligence action, an expert opinion on liability was required, But the court found Plaintiff's expert testimony inadmissible because it was based on anecdotal experience of the expert that were unsupported by facts.

Issue: What constitutes an inadmissible expert net opinion?

Ruling: In affirming the dismissal, the Appellate Division held that the expert's opinion on liability was properly excluded, based on the following factors:

1. In New Jersey, expert opinions that are solely conclusions and that fail to provide the basis for the conclusions are considered "net opinions" and are inadmissible as evidence.
2. To get an expert's opinion admitted into evidence, the expert must provide evidence of the accepted practice by lawyers that the defendant failed to adhere to.
3. The expert here failed to provide evidence other than anecdotal evidence regarding a case he handled in the recent past and otherwise only established that he would have done something different in the case, and not what reasonable attorneys' would have done in this case.

...the net opinion rule requires the expert witness 'to give the why and wherefore of his expert opinion, not just a mere conclusion...'

... Plaintiff's expert offered no evidential support establishing the existence of a standard of care, other than standards that were apparently personal to himself.

The Lesson: For the expert's opinion to be admissible in a legal malpractice case, he must define the standard of care and must support its definition by reference to evidence that other experts rely on and which are applicable to lawyers in similar circumstances. The expert's opinion must not be solely based on the expert's own personal view and experience. Once the expert esablishes the applicable standard of care or practice, he must then, through reference to the factual evidence, express the opinon how the defendant lawyer deviated from that standard and how that deviation was the cause of the alleged damage.

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