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This opinion of the Seventh Circuit discusses a legal malpractice case arising out of a class action. The plaintiff, Carlos Rocha, brought a class action against Federal Express. He alleged that Federal Express did not properly classify his employment. Shortly before the underlying case settled, he fired his lawyers. Rocha then refused to participate in the settlement of the underlying case. The court dismissed him as a plaintiff without prejudice. Rocha then filed a legal malpractice case against the lawyers who had represented him.

The district court dismissed the legal malpractice case because Rocha’s claims were viable when Rocha terminated his lawyers. If the case was viable, the lawyers could not have made an error that caused Rocha to lose the case. The Court of Appeals agreed and affirmed. The court explains its reasoning as follows:

“In the present case, Rocha’s Fluegel claims were still viable in September 2012, when Defendants were discharged. As an initial matter, Rocha retained Johnson as counsel before discharging Defendants in September 2012.[2]

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The case is captioned In the Matter of Scott I. Yu, No. 2016PR00104. Immigration malpractice is troubling for courts because Illinois does not allow a plaintiff to recover non-economic damages. Also, often the plaintiff has been deported so may be unable to prosecute a malpractice case. In this instance, the ARDC has charged a lawyer with the failure to provide competent representation where, in three separate cases, he failed to timely file appeals of adverse immigration orders. As a result, the Court of Appeals lacked jurisdiction over the matters and could not hear the cases. Apparently, after the Board of Immigration Appeals denied the client’s application, Yu filed a motion to reconsider which does not toll the time period for an appeal. When that motion to reconsider was denied, Yu tried to file an appeal, but the appeal was untimely.

The allegations in one of the counts of the complaint are provided here:

14. In February 2013, Jose Arriaga-Hernandez, a citizen of Mexico residing in the United States, sought relief from removal from the United States by filing an application for cancellation of removal in U.S. Immigration Court, case number A200-838-740.

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I have written before about Avvo and how frustrating it can be to be reviewed on Avvo. Often the reviews are baseless angry rants. Indeed, one of the reviews on my own Avvo profile is by a person who never engaged me (and I believe never spoke to me). My advice to lawyers who received a negative Avvo review is this: “Suck it up and deal with it.” The reason for my advice is that the lawyer is bound to hold client confidences confidential and therefore cannot really respond to an Avvo review. If you reveal a confidence, you can expect a disciplinary complaint.

It turns out that my advice was probably correct.

The case is captioned John Vyrdolyak v. Avvo, Inc., 16 C 2833. Judge Robert Gettleman has dismissed Vyrdolyak’s complaint alleging that Avvo was wrongfully “using plaintiff’s identity for commercial purposes without plaintiff’s consent” in violation of the Illinois Right of Publicity Act (IRPA), 765 ILCS 1075/1 et seq. Vyrdolyak also objected that Avvo would place ads on his profile page and profit from them. Vyrdolyak compared his situation to that of  former Bulls star, Michael Jordan, who successfully stated a claim that Jewel was seeking to profit from his name. Jordan v. Jewel Food Stores, Inc., 743 F.3d 509, 515 (7th Cir. 2014).

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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.