Legal Malpractice Law Review

Legal Malpractice Law Review

Research, resources & expertise in the law governing lawyers

IL: Legal Malpractice Summary Judgements Denied!

Posted in Illinois, Real Estate

Racquet v. Grant, 318 Ill. App. 3d 831 (2000)

IL: Underlying Property action

Student Contributor: Rachel Vincent

Facts: Plaintiff’s were being sued by their neighbor who was trying to enjoin plaintiffs from doing construction on their land. Defendants were responsible for representing plaintiffs in the suit (Platenka suit). Plaintiffs allege that defendants breached their duty of care to plaintiffs by failing to advise plaintiffs adequately of Platenka’s claims and the remedies he sough; failing to do sufficient pretrial discovery or preparation of witnesses; failing to prepare plaintiff for deposition; inadequately advising plaintiffs of the legal effect of the trial court’s denial of Platenka’s request for a temporary restraining order; advising plaintiffs they could proceed with the order; advising plaintiffs they could proceed with the modifications of their property despite the pending litigation; failing to raise necessary defenses to Platenka’s suit; failing to appeal the judgment despite assuring plaintiffs that they would do so; failing to file a timely cross-appeal after Platenka appealed; and not advising plaintiffs to seek a variance for their property. Defendant filed motion to dismiss. The trial court granted defendant’s motion to dismiss because it was barred by the two-year statute of limitations. Plaintiff’s appeal.

Issue: Whether the trial court erred in granting defendant’s summary judgment motion?

Ruling: Yes. Fact issues as to when clients should have known of alleged malpractice precluded summary dismissal on statute of limitations grounds. “Ordinarily when a party becomes charged with knowledge that his injury was wrongfully caused, the beginning of the two-year period for bringing suit for attorney malpractice, is a question of fact” and “genuine issues of material fact existed as to when clients knew or should have known that their attorney may have committed malpractice either in the trial of the case or in failing to appeal or cross-appeal.” Therefore “defendant’s were not entitled to dismissal of complaint on the ground that if failed to plead date of discovery of cause of action for purposes of discovery of injury for purposes of discovery rule, where untimeliness of action was not apparent from face of complaint itself, but defendants raised statute of limitations defense and introduced affidavits and other evidence in attempt to prove that suit was untimely.”

Lesson: Defendant’s will not be granted summary where there is a material issue of fact. 

NJ Legal Malpractice: LANDMARK LAW: Lawyer Liability for Client Crimes: “My Lawyer Made Me Do It!”

Posted in New Jersey

Winstock v. Galasso, ___ N.J. Super. ___ (App. Div. 2013) (Decided May 6, 2013)

NJ: Underlying Criminal Plea due to bad legal advice

FACTS: This is an appeal from a dismissal by way of summary judgment of plaintiffs’ legal malpractice claim against their former attorney. Plaintiffs sue defendant lawyer for incorrect legal advice which resulted in plaintiffs’ conviction by way of a plea agreement for promotion of gambling activities in violation of N.J.S.A. 2C:37-2a(2). Plaintiff’s wife, the legal owner and registered agent for the LLC  that operated and promoted the gambling enterprise sues defendant as well. She did not plead guilty but she was required as part of the plea, to enter into a Pretrial Intervention Program (PTI) as part of a global plea agreement involving others indicted for the gambling offenses,including her husband.  Plaintiffs argue that  plaintiffs  retained defendant lawyer to ensure that their business model was proper and lawful and but for the lawyer’s incorrect legal advice, they would not have engaged in the conduct that gave rise to the criminal charges.  Plaintiffs also argued that their claim for emotional distress damages should not have been dismissed.

Plaintiff, who was a police officer, organized a "poker tournament" at the local firehouse that involved friends and acquaintances. The popularity of the tournaments grew and involved as many as 100 players. The top 10% of the participants would share a portion of the money raised. The other 90% would get nothing.  The plaintiff would supply the cards and chips for thepoker games and also awarded the top ten winners shirts and hats in addition to their winnings.

Plaintiff met defendant at a VFW poker tournament. He called the defendant to "ask his legal advice on the legality of" opening his own club. Plaintiff, based on his training as a police officer,  had some understanding about the legality of gambling activities under New Jersey law. He testified that "as long as the house wasn’t taking profit from the gambling, we were not in violation. That’s exactly why I contacted  [defendant attorney] to verify that." Plaintiff also testified that defendant attorney was retained to "monitor the operation". 

Plaintiff and his wife then started a business to be known as "Fifth Street Club LLC" as a private social club offering adult recreational activities including pool tables, dart boards, backgammon, chess and a card table area. The club would operate in a fully renovated 8000 square foot warehouse area. Defendant attorney appeared before the local zoning board to obtain approval for operating the Club. Plaintiff alleged that defendant choreographed the presentation to the zoning board so as "to downplay the fact that poker tournaments would be held at the facility…" The Zoning Board members approved the plaintiff’s application. Plaintiff, as a police officer, was then asked to submit a legal memo to his police chief regarding "the legality of the club" that could be submitted to the prosecutors office.  The legal memo was prepared by the defendant attorney, at plaintiff’s request. A PBA attorney representing one of plaintiff’s partners in the venture wrote that he was concerned that the defendant attorney’s memo "does not sufficiently address the legal issues involved in this business venture."  The County Prosecutor’s Office began investigating the Fifth Street club for alleged illegal gambling activities. Plaintiff was arrested and suspended from duty as a police officer. He and his wife were then indicted on multiple counts of perjury and illegal gambling. Plaintiffs then entered a global plea agreement. He thereafter sought to withdraw the guilty plea as having been coerced, which was denied and affirmed on direct appeal. Plaintiffs then filed  this legal malpractice claim which was dismissed by way of summary judgment, based on Alampi v. Russo, 345 N.J. Super 360 (App. Div. 2001) where because of the  underlying guilty plea, the malpractice plaintiff would  be barred in  a later malpractice action against the  lawyer from taking an inconsistent position with the factual basis he gave to induce the criminal court to accept his guilty plea.  Here, however, the facts are distinguishable. 

Here, the plaintiff admitted to the illegal activities which occurred only  "after he had retained defendant [lawyer] as his legal advisor…"

defendant reviewed and approved plaintiffs’ business model…Although defendant’s legal opinion may not have absolved [his client] of criminal responsibility for his actions, [the client’s] admission of criminal culpability did not relieve defendant of his duty to provide plaintiffs with legally correct advice."

ISSUES: (1) Does an underlying guilty plea preclude plaintiff in a later legal malpractice action to take a position that is inconsistent with the guilty plea that seeks to hold the lawyer liable for malpractice in inducing the plea?  (2) Can plaintiffs’ recover emotional distress damages under these facts?

RULING:  (1) No.  In a civil action, the party who entered the guilty plea may rebut or explain the circumstances surrounding the  guilty plea.  

[Plaintiff’s admissions at the plea hearing may be evidential in his civil claims of professional malpractice against defendant. His plea alone, however, does not preclude him or [his wife] from arguing that defendant’s alleged professional negligence was a proximate cause of the damages they incurred by operating the [gambling club]. It is undisputed that defendant represented plaintiffs in filing the necessary documents to create the LLC and represented plaintiffs before the…Zoning Board…to obtain approval to operate the club. However, whether defendant was the mastermind and chief choreographer of a plan to mislead the Board and conceal the club’s true purpose as a gambling resort, as plaintiffs claim, or, as defendant alleges, he was simply following the directions given to him by plaintiffs, are material issues of fact that cannot be resolved by way of summary judgment.

(2) Regarding dismissal of emotional distress, the Court found no "egregious or extraordinary circumstances" warranting such relief. 

LESSONS: This is a landmark ruling because even though a client pleads guilty, where the activities leading to the plea are a result of and follow  the legal advice received from the attorney, the attorney’s advice can well become a substantial factor in causing the guilty plea.  In other words, "but for" the attorney’s negligent advice, the criminal conduct would never have come about.   

WV: Legal Malpractice Immunity for Federal Prosecutors

Posted in Federal

Mooney v. Frazier, 225 W. Va. 358 (2010)

WV: Criminal Law

Student Contributor: Rachel Vincent

Facts: Plaintiff is suing his attorney for ineffective assistance of counsel. Plaintiff came home form work one night and wife, who was drunk, pulled a gun on him. Plaintiff took the gun from his wife and attempted to call 911 to report the incident. Plaintiff called 911 several times but each time his wife disconnected the call. Plaintiff decided to go to his job and have his boss call the police to turn in the gun. When plaintiff left the house, his wife called 911 and informed them that plaintiff was in possession of her gun and was headed to his job. When plaintiff arrived at his job the police arrested him. Plaintiff was charged for being a felon in possession of a firearm. Although plaintiff insisted he was innocent, he pleaded guilty because his appointed counsel advised him that there was no defense for a felon-in possession charge. Plaintiff tried to withdraw his please but was denied. Plaintiff was sentenced to 180 months in prison. Plaintiff filed a motion to vacate his conviction and sentence based on a claim of ineffective assistance of counsel. He claimed that he plead guilty because his attorney failed to research the defense of justification to plaintiff’s charge. The district court denied plaintiff’s motion. Plaintiff appealed the denial of his federal habeas petition. The decision was reversed and remanded and the federal government declined to reprosecute. Plaintiff severed five years before being released. Plaintiff filed a malpractice against attorney. Defendant filed a motion to dismiss. Prior to ruling on the motion the court certified three questions to the Supreme Court, one of which was answered.

Issue: Whether an attorney who is court appointed to represent a criminal defendant in a federal criminal prosecution is immune from purely state law claims of legal malpractice stemming from the underlying criminal proceedings?

Ruling: Yes. “Any action for legal malpractice against a federal public defender must be brought directly against the United States, and not the attorney; under federal law, an attorney employed by a federal public defender office who is sued in an individual capacity can convert the action to one against the United States, thereby obtaining indirectly the benefit of the United States’ sovereign immunity.”

Lesson: A federal public defender has immunity even if they did in fact render ineffective assistance of counsel.

NH: Legal Malpractice: The Innocent Guilty Plea (???)

Posted in Criminal Law, New Hampshire, Proximate Cause

Hilario v. Reardon, 158 N.H. 56 (2008).

NH: Underlying Criminal Procedure, Guilty Plea

Student Contributor: Peter J. Jannace

FACTS: Plaintiff was indicted on various charges; he then entered into a plea arrangement with the State which provided that if he met certain conditions, including cooperating in other prosecutions, the State would petition for the suspension of a portion of his sentence. After plaintiff served a portion of his minimal sentence, defendant who was representing him filed a motion to withdraw the plaintiff’s plea of guilty and request a trial. Plaintiff claimed that he was not aware of and did not authorize the motion. When the plaintiff, acting pro se, filed a motion to suspend a portion of his sentence pursuant to the plea agreement, the State objected, arguing that the plaintiff breached the plea agreement when he filed a motion to withdraw his guilty plea. The trial court agreed with the State and ruled accordingly. Plaintiff filed suit against defendant, pro se; the trial court dismissed the complaint, plaintiff appealed.

ISSUE: Are strategic or tactical decisions made by an attorney after the plea and sentencing of a client which are unrelated to the client’s conviction subject to Mahoney requirements (allege and prove actual innocence) in a client’s malpractice action for those decisions?

RULING:  No. Where “the questionable behavior is unrelated to the accused’s culpability for the underlying acts and is, in all relevant respects, unrelated to those acts, we are not convinced that Mahoney bars those claims.” A claimant need not allege and prove actual innocence to prevail in a malpractice suit.

LESSON: Although generally an ex-client in a malpractice action has a high proximate cause burden to satisfy if his/her attorney represented him/her in a criminal action, the burden is significantly lower if the alleged malpractice did not relate to the underlying acts that culminated into a conviction. 

VT: Legal Malpractice On Malice and Punitive Damages

Posted in Damages, Vermont

DeYoung v. Ruggiero, 185 Vt. 267 (2009).

VT: Wills, Trusts & Estates

Student Contributor: Peter J. Jannace

FACTS: Plaintiffs hired defendant to close on the purchase of a house in Vermont. Plaintiffs later inherited a substantial amount; due to a communication breakdown between the decedent and the plaintiffs, plaintiffs hired defendant to ensure that plaintiffs received their inheritance. Defendant advised plaintiffs to invest in defendant’s real estate business, plaintiffs rejected defendants advice. Defendant received a partial distribution of the estate funds, and then transferred the funds into his own account for investment purposes. Plaintiffs made repeated inquiries as to when the funds would become available; defendant lied to cover up his theft. Plaintiffs found out that the funds had already been distributed, plaintiffs filed suit against defendant. Defendant entered a default judgment against himself; the trial court did not find “malice” which is an antecedent to an award of punitive damages, plaintiffs appealed.

ISSUE(s):  Does the “malice” requirement to an award of punitive damages require “ill will” towards the victim of the “malicious” behavior?

RULING(s): No. “Malice may arise from deliberate and outrageous conduct aimed at securing financial gain or some other advantage at another’s expense, even if the motivation underlying the outrageous conduct is to benefit oneself rather than harm another.”

LESSON(s): A lawyer is in a fiduciary relationship with his/her client, so if that lawyer steals money from the client and then takes steps to cover it up, there is basically a presumption in Vermont that the behavior is “malicious”, and the only issue for the jury is the amount of punitive damages. As if there wasn’t enough incentive not to engage in this type of activity; by the way, the attorney was disbarred as well. 

Legal Malpractice Lawyers “Invade” New Orleans at Jazz Fest 2013

Posted in Must Reads



New Orleans’  Jazz Fest 2013 attracted  The American Board of Professional Liability Attorneys–ABPLA’s  2013 national  meeting from April 25 to 27. ABPLA was organized in 1972 as  the only organization accredited by the American Bar Association to identify and  certify attorneys in the areas of legal and medical malpractice. The coveted Board Certification is granted only  to those practicing attorneys who, because of their demonstrated  experience and ability  are recognized as bona fide specialists   in these specific practice areas of  professional liability law.  Certified specialists from both the plaintiff’s and defendant’s bar joined together for two and a half days  in a unique spirit of collegiality where the "masters" learned from the "masters"  sharing  stimulating, eye-opening and intensive  programs helping each other learn and  appreciate the work of the other. 

At the same time,  the ABA’s  Spring 2013 National Legal Malpractice Conference  was also held just up the street. There, cutting edge topics were addressed by prominent members of the ABA’s Standing Committee on Lawyers’ Liability and the insurance industry. 

Given the numbers of legal malpractice lawyers in attendance at both events, there is no doubt that the substantive area of  legal malpractice law continues to grow.  ABPLA has announced that its next meeting will be in Miami in May next year. The ABA’s fall National Legal Malpractice Conference is planned for  San Diego in September.   

Both,  worthwhile organizations and events  promoting the importance of this substantive area of the law  and raising the level of competence, quality, and ethical practices  among the bar.   Kudos to both organizations!

CA: Legal Malpractice Defenses: Contributory Negligence

Posted in California

Theobald v. Byers, 193 Cal. App. 2d 147, 13 Cal. Rptr. 864 (1961)

CA: Underlying Loan Transaction; Debtor Creditor  

Student Contributor: Louis Dell

Facts: The plaintiffs hired the defendant attorneys to prepare a note and chattel mortgage in connection with a loan that the plaintiffs were making to a third party. The secretary for defendant delivered the completed papers to the plaintiff. No directions were given to the plaintiff in relation to the documents. The defendant never informed plaintiff that he must have the mortgage recorded. Sometime later the third party went into bankruptcy. Since the mortgage was not recorded the plaintiff was considered an unsecured creditor. As a result the plaintiff suffered damages. The defendant alleged that the plaintiff was contributorily negligent in not inquiring as to whether the mortgages were supposed to be recorded.

Issue: Is contributory negligence a defense in a legal malpractice case?

Ruling: Yes, contributory negligence is a defense. Where a client chooses to ignore the legal advice of his attorney the contributory negligence is available. The fact that the plaintiff never inquired into the documents is not enough to sustain the defense.

Lesson: An attorney should document all communications with his client so that the attorney can show what advice was given.  

CA: Legal Malpractice: No Negligent Infliction of Emotional Distress Damages

Posted in California, Damages

Camenisch v. Superior Court, 44 Cal. App. 4th 1689, 52 Cal. Rptr. 2d 450 (1996)

Underlying Action: CA: Torts

Student Contributor: Louis Dell

Facts: The plaintiff hired Camenisch to prepare trust and estate documents. He informed defendant that he did not want the proceeds of his life insurance tryst to become a taxable part of his estate. The attorney prepared a trust to meet the plaintiffs requirements. Sometime later the plaintiff informed defendant that he believed the trust was not prepared correctly. Defendant made some changes to the trust at that time. Plaintiff was required to pay taxes on the trust. Plaintiff then brought a suit for malpractice and negligent infliction of emotional distress. Plaintiff alleged that because he had to pay taxes he suffered severe emotional distress and anxiety.

Issue: Is the tort of negligent infliction of emotional distress applicable in a case for professional malpractice?

Ruling: No, in a case for legal malpractice negligent infliction of emotional distress is not normally available. In cases where the malpractice has led to conviction and imprisonment, negligent infliction of emotional distress has been allowed.

Lesson: An attorney cannot be held liable for negligent infliction of emotional distress when the only damage to the defendant is economic. This is true whether the damages occurred in litigation or in another context.  

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CA: Legal Malpractice: Actual Injury Trumps Continuous Representation Tolling

Posted in California, Real Estate

Truong v. Glasser, 181 Cal. App. 4th 102, 103 Cal. Rptr. 3d 811 (2009)

CA: Real Estate; Commercial Lease

Student Contributor: Louis Dell

Facts: VMI (the plaintiff) is a manufacturer of circuit boards. In 2005 the plaintiff moved into a new property. VMI was dissatisfied with the condition of the property and hired Glasser to draft an addendum to the lease. VMI alleged that Glasser was negligent and breached his fiduciary duty when he did not properly advise VMI concerning the lease addendum. The plaintiffs had incurred many expenses in connection to the lease addendum including attorney fees, and losses while attempting to rescind the lease addendum. The plaintiff also suffered losses because they were unable to use the property.  Glasser moved for summary judgment on the basis that the claim for malpractice was barred because the statute of limitations had expired. The trial court granted summary judgment to Glasser. VMI contends that the statute was tolled because they suffered no injury until they lost a lawsuit trying to rescind the addendum and because Glasser provided continuous representation until less than one year prior to the malpractice suit. The court found that Glasser did not provide continuous representation. His representation ended when he completed the addendum.

Issue: Is actual injury sustained at the time of obtaining a lawyer or when the plaintiff loses the lawsuit?
When is an attorney’s representation completed?

Ruling: Actual injury is sustained at the time of obtaining a lawyer. The “determination of actual injury requires only a factual analysis of the claimed error and its consequences.” An actual settlement or judgment is not required.  An attorney’s representation is completed when “the agreed tasks or events have occurred.” In this case the representation of the attorney ended when communications concerning the lease addendum ended.

Lesson: An attorney should always use a termination letter to avoid allegations of continuous representation. Actual injury occurs at the time that the injury is realized and not when a court declares a judgment. 

SC: No Privity with Trust Beneficiaries, No Fiduciary Duty

Posted in South Carolina

Argoe v. Threee Rivers Behavioral Center and Psychiatric Solutions, 388 S.C. 394, 697 S.E.2d 551 (2010)

SC: Underlying Trusts, Real Estate; Breach of Fiduciary Duty

Student Contributor: Nicholas Seabrooks

Facts: Martha Argoe’s husband and son retained the defendant attorney Walsh to help protect her from her own irresponsible and erratic behavior. According to the husband and son Argoe was acting strangely and had become financially irresponsible. Specifically Martha had taken out a loan on her condominium, allowed the loan to go into default, and the property was about to go into foreclosure. In order to avoid financial disaster Walsh helped  in the transfer of the title to the property to a trust for the benefit of Martha, with remainder to himself in the event of her death. Martha then filed suit against Walsh for malpractice alleging breach of fiduciary duty for transfer of the title to the property without her knowledge.

Issue: Did Walsh have fiduciary duty to Martha t while representing her husband and son, therefore committing malpractice?

Ruling: No. There was no attorney-client relationship established between the plaintiff and the defendant while representing her husband and son. I

Lesson: An attorney is generally immune from liability to third parties arising from the performance of professional activities on behalf and with knowledge of his client. Furthermore an attorney owes no duty to a non-client unless he breaches some independent duty to a third party or acts in his own personal interests, outside of the scope of representing the client.