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After his divorce case concluded Lancaster sued his former attorney for malpractice. The claim included allegations of fraudulent billing and other claims. The lawyer raised the defense of res judicata. Res judicata is a phrase borrowed from Latin which bars a litigant from re-litigating a claim that was previously litigated to judgment. The basis for the res judicata claim was that the lawyer had filed a fee petition in the divorce case seeking a judgment for fees against Lancaster. The trial court awarded fees. The legal malpractice case was held to be barred by res judicata. The court agreed with the lawyer that the claims for legal malpractice could have been raised in the fee proceeding.

Comment: this is a fairly broad reading of res judicata. Courts are often reluctant to allow the res judicata defense in legal malpractice cases because the whole point of the legal malpractice case is usually that the client lost the underlying case because the lawyer made an error. If the courts applied res judicata in every case that the client lost, malpractice liability would be swallowed up by res judicata. Because this particular case contained allegations that the lawyer’s bills were fraudulent after they had been approved by a court, res judicata makes more sense here. In any event, res judicata remains a controversial defense to the legal malpractice action.

Edward X. Clinton, Jr.

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This is a divorce malpractice case where a lawyer allegedly failed to timely appeal a divorce judgment against his client. His client (Ex-Husband) claimed that the failure to appeal constituted legal malpractice. The Georgia courts disagreed. The holding: even though the lawyer missed the deadline to appeal, there was no legal malpractice because Ex-Husband’s appeal had no merit. Put in more blunt terms, the courts found that Ex-Husband was an adulterer and, in the State of Georgia, was going to lose the divorce case.

The explanation:

We conclude that, as a matter of law, Ward failed to demonstrate that the divorce court abused its discretion and that the Supreme Court thus would have reversed the award but for Benson’s error. Although Ward complained that the divorce court gave undue weight to his alleged adultery, the amended order indicates that the court did consider “all the relevant factors” and did not improperly consider evidence of Ward’s adultery. “[E]ven though an adulterous spouse cannot obtain alimony, an equitable property division is still permissible. . . . However, where equitable division of property is in issue, the conduct of the parties, both during the marriage and with reference to the cause of the divorce, is relevant and admissible.”[

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This issue comes up every now and then. An attorney files a collection lawsuit against a client and obtains a judgment against the client. (Here the client did not appear and a default judgment was entered). Later, the client reviews the attorney’s work and files a legal malpractice lawsuit. May the lawyer argue that the legal malpractice case is barred by the doctrine of res judicata? Here the answer is “No.”

The court includes a discussion of res judicata:

The purpose of this common law doctrine is to “relieve the parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and, by preventing inconsistent decisions, encourage reliance on adjudication.” Allen v McCurry, 449 US 90, 94; 101 S Ct 411; 66 L Ed 2d 308 (1980). “For the sake of repose, res judicata shields the fraud and cheat as well as the honest person. It therefore is to be invoked only after careful inquiry [as to whether foreclosing plaintiff’s case would protect] the interests served by res judicata.” Brown v Felsen, 442 US 127, 132; 99 S Ct 2205; 60 L Ed 2d 767 (1979). “The burden of establishing the applicability of res judicata is on the party asserting the doctrine.” Richards v Tibaldi, 272 Mich App 522, 531; 726 NW2d 770 (2006).

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In this case, the Minnesota Court of Appeals holds that a client’s executor has standing to pursue a legal malpractice claim against an estate planning attorney.

Gordon Savoie sought estate planning advice from a law firm. That law firm prepared an estate plan for him. Upon his death, a bank was appointed to be his executor. The bank, on behalf of the estate, sued the law firm for legal malpractice because the firm had failed to adequately plan for generation-skipping taxes. The law firm moved for judgment on the pleadings based on the formalistic argument that the law firm did not have an attorney-client relationship with the law firm. The district court accepted this argument, but the Court of Appeals reversed.

The argument that there was no attorney-client relationship with the bank and therefore no duty is poorly reasoned. If the argument were accepted, no victim of legal malpractice could ever sue if the victim passed away. No such rule applies in personal injury cases, medical malpractice cases, or even breach of contract cases. In all those cases the Estate steps into the shoes of the decedent.

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Some lawyers include arbitration clauses in their agreements with their clients. In this unpublished decision, the Third Circuit upheld an arbitration clause and rejected a challenge that the clause was prohibited by New Jersey law.

Source: Smith v. Lindemann, Court of Appeals, 3rd Circuit 2017 – Google Scholar

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When you sue a lawyer for a breach of the standard of care, you must prove proximate causation. If the underlying matter, was a lawsuit, you must show that, but for the negligence, you would have won the case.

Here, the lawyer was hired to pursue a lawsuit for insurance coverage. The lawyer allegedly missed the deadline to file the case. However, there was no legal malpractice because the underlying case lacked merit. The underlying case claimed that the insurance company did not cover certain losses. The problem was that the policy language excluded those losses. Thus, if the clients had read the insurance policy, they would have known that there was no coverage. Because the coverage case had no merit, the lawyer’s failure to file the lawsuit on time was of no importance. The trial court granted summary judgment for the lawyer and the appellate court affirmed that judgment.

The opinion explains the failure of proof in this fashion:

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In this matter, a typical drug prosecution, the record reflected that county prosecutors supported the reelection campaign of a judge. Did that support create an obligation, on the part of the judge, to recuse himself from cases in which those lawyers appeared?

The trial court and the Indiana Court of Appeals held that there was no duty to recuse.

The lawyer for the defendant argued that the prosecutor’s support for the judge’s reelection campaign created an appearance of impropriety. The Indiana Court of Appeals disagreed. The court distinguished a prior case in which it had held that a judge was required to recuse himself because of an unusually close relationship to one of the lawyers.

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Disclaimer: This is a charge and it has not been proven. These are mere allegations by the ARDC.

The case is worth reading because it is relatively rare for the ARDC to allege that a lawyer wrongfully accessed an email account. The underlying case involved a former employee. The lawyer was employed as the CFO of the former employer. According to the allegations, the lawyer used a work email address of the former employee to reset the password on the employee’s personal email account. The lawyer then read the personal emails and used them in the litigation. The allegations of wrongdoing are as follows:

21 t all times alleged in this complaint, there was in full force and effect Chapter 720, Section 5/17-51 of the Illinois Compiled Statutes, which provided, in part:

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This is a rare patent malpractice case. According to the court, the plaintiff alleged that the lawyers failed to properly file and amend various patent claims and that the errors of the lawyers caused them economic damages. The lawyer defendants moved to dismiss on the ground that the plaintiff had not adequately alleged proximate causation. In particular, the defendants argued that the alleged errors did not cause plaintiff any economic damages. The court disagreed, holding that the plaintiff pleaded lost licensing revenue and royalties.

Source: ECONOMIC ALCHEMY LLC v. BYRNE POH LLP, 2017 NY Slip Op 31640 – NY: Supreme Court 2017 – Google Scholar

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The underlying case was a personal injury case. The plaintiff hired a lawyer to represent her in that case and the lawyer obtained a settlement of the lawsuit that the plaintiff accepted. Despite accepting the settlement, the plaintiff sued for legal malpractice. The trial court dismissed the lawsuit and the appellate court affirmed. The fatal flaw with the case was that the plaintiff did not allege how the lawyer breached any professional duty to the plaintiff.

Source: Tarrant v. Ramunno, Del: Superior Court 2017 – Google Scholar