Legal Malpractice Law Review

Legal Malpractice Law Review

Research, resources & expertise in the law governing lawyers

Category Archives: Fiduciary Duty

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CA: Sometimes, You Take What You Can Get

Posted in California, Fiduciary Duty, Litigation
Robins v. Kuhn, 2011 WL 2001852 (Ca. App. 2011) CA: Fiduciary Duty Student Contributor: Mordechai Buls Facts: Plaintiff and his two brothers sued a theater owner for wrongful death relating to their father’s fall at the theater.  Plaintiff’s brothers settled with the theater, but Plaintiff continued the suit substituting new counsel for mandatory settlement conferences and… Continue Reading

NJ: Beware Mortgages on Client Property to Secure fees

Posted in Attorneys Fees, Conflicts of Interest, Fiduciary Duty, New Jersey
Petit-Clair v. Nelson, 782 A.2d 960 (N.J. Super. Ct. App. Div. 2001) NJ: Attorneys fees  Student Contributor: Le-el D. Sinai Facts: The defendants in this case are business owners who hired the plaintiff attorney to represent their businesses in litigation. During litigation, defendants agreed to give the plaintiff attorney mortgage on their home in order… Continue Reading

CT: Lack of Expert Testimony Kills A Legal Malpractice Claim Couched As a Breach of Fiduciary Duty Claim

Posted in Connecticut, Expert Witnesses, Fiduciary Duty, Wills Trusts & Estates
Marciano v. Kraner, 126 Conn. App. 171, appeal denied, 300 Conn. 922 (2011) CT:  Underlying Wills, Trusts, and Estates Disputes Student Contributor: Jennifer Hanley Facts: Client’s parents were older and experiencing serious health difficulties. Concerned with preserving their property and assets, he contacted an attorney to provide advice on the matter. The attorney (“Attorney”) advised… Continue Reading

NY: Do Attorneys Owe a Fiduciary Duty to Limited Partners?

Posted in Fiduciary Duty, New York, Securities
Eurycleia Partners, LP v. Seward &Kissel, LLP, 12 N.Y.S. 3d 553(2009) NY: Underlying Securities Fraud Student Contributor: Mordechai Goldenberg Facts: Plaintiffs are limited partners in a hedge fund that was managed by John Whittier. Plaintiffs allege that the hedge fund’s offering memorandum asserted the following: 1) That the hedge fund will be audited by American… Continue Reading

NJ: The Lawyer/Broker Conflict

Posted in Fiduciary Duty, New Jersey, Standard of Care, Substantial Factor-Proximate Cause, Wills Trusts & Estates
Lovett v. Estate of Lovett, 250 N.J. Super. 79, 593 A.2d 382 (Ch. Div. 1991) NJ: Underlying will and estate contest Student Contributor: James Quinn Facts: Plaintiffs are two former guardians and children of decedent, who passed away during this action. They allege malpractice by attorney in drafting a more simple will for their father, eliminating… Continue Reading

TX: No Causation in Malpractice Action = Summary Judgment

Posted in Criminal Law, Fiduciary Duty, Proximate Cause, Texas
Rodgers v. Weatherspoon, 141 SW 3d 342 (Tex. App. 2004) TX: Underlying criminal defense Student Contributor: Megan Diodato Facts:  The client was charged with aggravated assault and the attorney was appointed to represent him. The client filed motions to act on his own behalf and to dismiss attorney as his counsel. The attorney filed a… Continue Reading

CA: Supreme Court Chooses Loyalty Over Freedom of Speech

Posted in California, Fiduciary Duty
Oasis West Realty, LLC v. Kenneth A. Goldman, Supreme Court of California, May 16, 2011 Facts: Goldman, and his law firm Reed Smith, represented Plaintiff Oasis in a redevelopment plan involving a nine-acre parcel in Beverly Hills on which Oasis was to build a hotel and luxury condominiums. After two and one-half years, Defendants ended… Continue Reading

7th Cir: A Claim, By Any Other Name…

Posted in Commercial, Conflicts of Interest, Corporate Law, Expert Witnesses, Federal, Fiduciary Duty, Legal Ethics, Litigation
Hoagland v. Sandberg, Phoenix & Von Gontard, 385 F. 3d 737 (2004) 7th Cir.: Underlying legal malpractice claim Student Contributor: Clem Durham Facts: The district court determined after a bench trial that Hoagland’s suit failed as a suit for legal malpractice. Hoagland doesn’t disagree. His grievance is that he should have been allowed either to… Continue Reading

NY: On Defining the Elements of a Fiduciary Duty

Posted in Commercial, Fiduciary Duty, New York, Real Estate
Roni LLC, et al. v. Afra et al., 2010 WL 3703047, September 16, 2010 NY: Underlying real estate investments Facts: This action arose from a series of business transactions in which investors acquired membership interests in limited liability companies that purchased and managed multi-family residential buildings in NY. The Defendants, either directly or through their… Continue Reading

NY: In House Counsel is Fiduciary First, Employee Later

Posted in Fiduciary Duty, New York
Keller v. Loews Corp., 895 NYS 2d 376 (2nd Dept. 2010) Facts:  In house counsel sued for religious discrimination after the termination of his employment.  The defendant counterclaimed for breach of fiduciary duty.  More specifically, the defendant alleged that counsel disclosed confidential information in his discrimination complaint.  The trial court dismissed the counterclaim on the ground… Continue Reading

Lawyer Malpractice Class #5: The Lawyer’s Fiduciary Duties

Posted in CLE & Law School Course, Fiduciary Duty
 Hofstra Law School Class #5 Read: Fortney & Johnson, Legal Malpractice Law, Ch. 4, pp. 101-116; 421-424.    Restatement of Law Governing Lawyers §49. Breach of Fiduciary Duty–Generally In addition to the other possible bases of civil liability described in §§48 [professional negligence] 55[breach of contract and equitable relief] and 56 [liability to a non-client],… Continue Reading

Improper “Fracturing” of Legal Malpractice Claims

Posted in Fiduciary Duty, Texas
 Aiken v. Hancock, 115 S.W.3d 26 (Tex. App.—San Antonio 2003, pet. denied). TX: Underlying civil litigation "catastrophe". Student Contributor: Courtney E. Hamilton* Facts:   Douglas Aiken brought action against his former attorneys Patrick Hancock and Mark Ferguson, and their firm, Deadman and Ferguson, alleging violations of the Deceptive Trade Practices Act (DTPA), breach of fiduciary duty,… Continue Reading

Beyond Duties to Clients: Associates’ Duties to their Law Firms

Posted in Attorneys Fees, Fiduciary Duty, Texas
Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193 (Tex. 2002) TX: Underlying referral of a personal injury case to another law firm Student Contributor: Anna Ford (J.D. ( 2011) Texas Tech University School of Law; B.B.A. (2008) Emory University) FACTS:  After a helicopter crash, James Chang, an associate with the firm of Brewer &… Continue Reading

Disqualification for Conflicts of Interest

Posted in Conflicts of Interest, Fiduciary Duty, Legal Ethics, Pennsylvania
Maritrans GP, Inc. v. Pepper, Hamilton & Scheetz, 529 Pa. 241 (Pa. 1992) Student Contributor: Melissa Goldberg Underlying: Motion to disqualify for  Conflict of Interest  Facts: Defendant represented Plaintiff in broad range of labor matters for well over a decade. During the course of their labor representation of Plaintiff, Defendant became familiar with Plaintiff’s operations… Continue Reading

NJ: Limitations on Duties to Third-Parties

Posted in Fiduciary Duty, New Jersey, Wills Trusts & Estates
Estate of Albanese v. Lolio, 393 N.J. Super. 355 (App. Div. 2007). NJ Underlying Probate Matter Student Contributor: Natalie Resto Facts: The decedent was survived by three daughters, all beneficiaries under the decedent’s will. One of the beneficiaries, the executrix, retained the defendant attorney for the probate of the decedent’s estate. The executrix, allegedly upon… Continue Reading

Breach of Fiduciary Duty and a Lighter Burden of Proof: The Prophylactic Rule

Posted in But for-Proximate Cause, Commercial, Federal, Fiduciary Duty, New York, Proximate Cause
Milbank, Tweed, Hadley & McCloy v. Boon, 13 F.3d 537 (2nd Cir. 1994) NY Underlying Representation: Prospective Purchase of Bankrupt Company’s Assets Student Contributor: John Anzalone Facts: Defendant Law firm represented Plaintiff through an agent in her attempt to purchase the assets of a bankrupt company. Problems occurred with the deal and the Agent was… Continue Reading

Fiduciary Duties to Third-Parties: No Affirmative Misrepresentations

Posted in Fiduciary Duty, New Jersey, Real Estate
Petrillo v. Bachenberg, 139 N.J. 472 (1995) Student Contributor: Evan Kusnitz NJ Underlying Real Estate Transaction Facts: A purchaser of real estate sued the seller and the seller’s attorney. The seller’s attorney had forwarded to the seller an incomplete copy of the results of percolation tests conducted by a previous owner to determine the subject… Continue Reading

NY: Reasonable Fees, Big Time

Posted in Attorneys Fees, Fiduciary Duty, New York, Wills Trusts & Estates
Lawrence v. Miller 48 A.D.3d 1, 853 N.Y.S.2d 1 (1st Dept., 2007) Student Contributor: Maninder (Meena) Saini NY Underlying Estate Litigation-Attorney fees Facts: A husband passed away and left the estate to respondent-wife and their three children. The will was admitted to probate in January 1982. The respondent (Lawrence) retained the Graubard law firm on… Continue Reading

NY: Goodbye “But For” Hello “Substantial Factor” Causation Rule for Breach of Fiduciary Duty

Posted in Commercial, Fiduciary Duty, New York, Proximate Cause
Milbank, Tweed, Hadley & McCloy v. Boon, 13 F.3d 537 (2nd Cir. 1994) NY Underlying Commercial Action/Conflict of Interest Student Contributor: John Anzalone Facts: Defendant law firm represented Plaintiff, through an agent, in her attempt to purchase the assets of a bankrupt company. Eventually, however, Plaintiff dismissed the agent. The agent, thereafter, advised Defendant law… Continue Reading

NJ: Mandatory Legal Malpractice Insurance: The Time Has Come.

Posted in Fiduciary Duty, Insight & Commentary, Insurance, New Jersey
Insight and Commentary from Ben Wasserman and Krishna Shah In order to drive a car in New Jersey, you need a license and insurance. If your negligent driving injures someone, you have insurance not only to protect yourself, but to protect the person you injure. In order to practice law in New Jersey, you also… Continue Reading

Fiduciary Duty to Non-Clients

Posted in Commercial, Fiduciary Duty, New Jersey
Dynasty Building Corp. v. Ackerman, 376 N.J. Super. 280 (App. Div. 2005) NJ: Attorney Trust Account Funds Student Contributor: Michael Park Facts: Attorney received funds from Plaintiff through an accidental wire transfer directly into his trust account. Plaintiff learned of the accidental transfer a couple weeks later and demanded that the monies be returned. Attorney… Continue Reading