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The Terra Museum sued its former attorneys, DLA Piper, for legal malpractice arising out of a real estate deal gone bad. Terra claimed that, due to a drafting error, it was required to pay the other party to the real estate deal millions more than it should have had to pay. The Statute of Repose gives a client six years to sue the attorney for malpractice. The Statute of Repose starts to run when the attorney commits the negligent act, not when the client discovers the error. The court explained that Terra had opportunities to file suit during the

The court explained that Terra had opportunities to file suit during the six-year repose period. The court rejected an argument that the repose period does not begin to run until the transaction was completed.

¶ 33 We conclude that the event giving rise to Terra’s injuries occurred on May 29, 2007, when Terra and NM Project executed the first amendment and chose BOMA 96 as the method of measuring the retail parcel without the exclusionary language.Fricka v. Bauer, 309 Ill. App. 3d 82, 88 (1999) (“The plain language of the statute requires filing of the lawsuit within six years of the acts or omissions that form the basis for the complaint.”). The measurements of the rentable area under the BOMA 96 standards, without excluding the common space, resulted in the increases of the retail parcel space, which required Terra to engage in arbitrations to dispute the measurements, incur the related attorney fees and expenses and make the retail parcel credit payment at the closing. Terra’s asserted injuries directly flowed from DLA’s allegedly negligent omissions and acts as to the first amendment.

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One of the longest-running controversies in the legal malpractice cases is whether the owner of a legal malpractice claim may assign it to another party. Once it was black letter law that a legal malpractice claim could not be assigned. In recent years courts have relaxed the rule on the ground that all sorts of other legal claims can be assigned so a legal malpractice claim should be no different.

However, in this case, Nevada held that the assignment was improper and barred the legal malpractice claim.

In this case, an entity, Tower Homes, LLC filed a bankruptcy petition. Among the creditors were prospective condominium purchasers who had paid earnest money to Tower. The bankruptcy court, acting on the recommendation of the Trustee, allowed the creditors to bring the legal malpractice claim against the former attorneys for Tower Homes. The bankruptcy trustee was motivated by the lack of available funds for the trustee to hire a lawyer and prosecute the claim

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I have written several times over the past year about the actual innocence rule, which requires a criminal defendant to prove actual innocence before he can sue his criminal defense lawyer for legal malpractice. Several courts have abandoned the rule in recent years. Washington, however, has decided in the case listed below to uphold the Rule. I don’t agree with the reasoning of the decision. There is no just reason to give the criminal defense lawyers immunity from malpractice lawsuits if they make an error that rises to the level of malpractice.

Professor Bernabe of John Marshall has written an excellent article on this case. You can find the article at this link.

Source: PIRIS v. Kitching, 345 P. 3d 13 – Wash: Court of Appeals, 1st Div. 2015 – Google Scholar

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Kelli Dudley is a foreclosure defense lawyer and is a superb advocate for the poor and other underserved populations of Cook County. The defendants in the case also defend foreclosures.

In an underlying case, Dudley, on behalf of Tonya Davis, filed a legal malpractice claim against several foreclosure defense lawyers alleging that they did nothing to keep Davis in her home. That litigation turned acrimonious.

Eventually, the defendants obtained a preliminary injunction in a state court case which prevented Dudley from contacting Davis. Ultimately the Davis v. Fenton case went to arbitration. The arbitrator awarded Davis damages for legal malpractice against Fenton. The arbitrator ruled in favor of Fenton on Davis’ other claims, including her claim that Fenton had engaged in unlawful housing discrimination.

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This is a post written by Wendy Dessler.

Suing a Divorce Attorney for Malpractice

So you thought you had hired the perfect divorce lawyer for your case but after the fact you don’t feel they performed as they should have. Do you feel like your divorce attorney did not handle your divorce case accurately?  You may have the option to sue your divorce lawyer for malpractice damages.  But before you do there are some things you should consider.

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This post does not discuss a legal malpractice issue but an issue of appropriate judicial conduct. Professor Alschuler represented former Governor George Ryan in several of his post-conviction appeals. He is an Emeritus Professor of the University of Chicago Law School and a distinguished scholar in the criminal justice field.

Professor Alschuler has written a memoir of his efforts to obtain post-conviction relief for George Ryan. Professor Alschuler argues that Judge Easterbrook has a pattern of abusing lawyers at oral argument and that Judge Easterbrook has a pattern of making up facts without consulting the record on appeal. He argues that many lawyers have been afraid to challenge Judge Easterbrook.

The article is a fascinating read and every practicing lawyer should read it before forming an opinion as to its merits.

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This is an important issue for legal malpractice attorneys. Is a former criminal defendant required to show actual innocence before he can sue for legal malpractice? Most courts have answered this question with “Yes,” but some states are beginning to deviate from the doctrine. The Iowa Supreme Court held that actual innocence is not required to bring a malpractice suit and but that guilt/innocence determinations are relevant to proof of proximate causation.  In other words, you can’t show the lawyer’s actions were the proximate cause of the conviction if you were really guilty.

Regarding actions for malpractice by a criminal defendant, the Restatement concludes that “it is not necessary to prove that the convicted defendant was in fact innocent,” although it notes that “most jurisdictions addressing the issue have stricter rules.” Restatement (Third) of the Law Governing Lawyers § 53 cmt. d, at 392 (Am. Law Inst. 2000) [hereinafter Restatement]. The Restatement adds,

As required by most jurisdictions addressing the issue, a convicted defendant 166*166 seeking damages for malpractice causing a conviction must have had that conviction set aside when process for that relief on the grounds asserted in the malpractice action is available.

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This case presents an all too familiar story: a lawyer obtains malpractice insurance but does not realize or understand that the insurance policy contains an exception for any outside business interest.

David Marks was the trustee of two trusts that owned a controlling interest in Titan Global Holdings, Inc. Marks purchased professional liability insurance but the policy contained this exclusion:

This Policy does not apply either directly or indirectly to any Claim and Claim Expenses: a) Based upon or arising out of any dishonest, criminal, fraudulent, malicious or intentional Wrongful Acts, errors or omissions committed by or at the direction of the Insured.

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John J. Otrompke intends to seek admission to the practice of law in the State of Indiana. He filed suit against the Bradley Skolnick and the Indiana State Board of Law Examiners apparently accusing them of violating his first amendment rights. Otrompke was concerned that, if he were to apply for admission in Indiana, he would be rejected because of his strong advocacy for certain political beliefs. The Seventh Circuit explains:

Section 3 of Rule 12 of the Indiana Rules for the Admission to the Bar and the Discipline of Attorneys states: “No person who advocates the overthrow of the government of the United States or this state by force, violence or other unconstitutional or illegal means, shall be certified to the Supreme Court of Indiana for admission to the bar of the court and a license to the practice of law.” The plaintiff intends to engage in “revolutionary advocacy,” as by distributing theCharter of Carnaro (Gabrielle d’Annunzio’s constitution, combining proto-fascist, anarchist, and democratic ideas, for his short-lived rule over Fiume in 1920), and Marx and Engels’ Communist Manifesto, and he is concerned, he says, that his actions will be deemed to violate Rule 12(3).

Unfortunately, because Mr. Otrompke has never actually applied to be admitted to the practice of law in the State of Indiana, his lawsuit was dismissed as premature. In other words, because Mr. Otrompke has not sought admission, he cannot claim that admission was denied him because of his political beliefs.

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This is a legal malpractice case in which the plaintiff, Juakeishia Pruitt retained the Cockrell & Cockrell firm to pursue employment claims against Spillman College and other claims against other parties. According to the opinion, the firm failed to file the claims in timely fashion and an associate concealed that fact from Pruitt. The associate, Byron House, made further false representations as to the status of those cases in an effort to conceal from Pruitt that the cases had not been filed in timely fashion. The associate told Pruitt that her cases had settled and made payments to her from the firm’s operating account. The opinion states:

Subsequently, Pruitt met with another attorney, Delaine Mountain. During that meeting, House called Pruitt on her cellular telephone, and Mountain listened to that conversation. On January 18, 2012, Mountain made two telephone calls to Cockrell to discuss Mountain’s concerns regarding House’s handling of Pruitt’s discrimination cases. Cockrell twice confronted House in light of the information he had received from Mountain. Eventually, House told Cockrell that he had missed the statute of limitations on both discrimination cases; that there was no structured settlement in the Stillman College case; and that he had taken money for the alleged settlement payments from the Cockrell law firm’s general business account and trust accounts. The Cockrell law firm immediately terminated his association with the firm.

When Pruitt learned that her claims had not been filed on time, she sued for legal malpractice. The law firm defended on the ground that the legal malpractice statute of limitations had run. The trial court denied the law firm’s motion for summary judgment on the ground that the law firm had made fraudulent representations to Ms. Pruitt. The Alabama Supreme Court upheld the denial of summary judgment on the ground that the fraudulent actions by the associate were a separate basis for liability under Alabama’s Legal Services Act.