This case is instructive for plaintiff lawyers because it is a reminder that, if the client has filed for bankruptcy, the claim for legal malpractice may belong to the bankruptcy estate. Because the alleged negligence occurred before the bankruptcy petition was filed, the claim belonged to the bankruptcy estate.
Recent developments in the news have caused me to reflect on this topic. When should a lawyer make a memo to the file?
There are news stories that former FBI Director James Comey made memos to the file to report on conversations he had with President Trump. Comey made the memos because he was concerned that Trump was asking him to violate the law or engage in some form of corrupt activity. Comey would have been very concerned that he would later be accused of engaging in some impropriety or that Trump would make some claim about their meeting that would contradict Comey’s recollection. Comey is also smart enough to know that he needed to keep a copy of the memo to the file in his own personal papers so that no neer-do-well could destroy it after he was terminated.
A memo to the file should be made (and preserved in a way that proves when it was created) whenever the client (a) indicates that he may not follow legal advice; (b) he announces an intention to violate the law; or (c) he does not appear to be telling the truth.
Meisler was a “potential” beneficiary. She argued that the lawyer who drafted the estate planning documents committed legal malpractice because he did not include certain language in the estate planning documents. In some states a beneficiary can sue the lawyer who drafted estate planning documents. Ohio rejects this concept and holds that only a party in privity with the lawyer (usually the person who retained the lawyer) can file such a lawsuit. The problem is that the person who is in privity with the lawyer is usually deceased. In such cases, privity provides a complete defense to malpractice claims. The Ohio court notes that the executor of an estate might have standing to assert an error that diminished the value of the entire estate. However, the executor would not have standing to sue for an error that impacted the claim of one beneficiary.
The standing doctrine of the Ohio cases is, in my view, too narrow and is unfair to many estate beneficiaries. Obviously, this is an issue that is controversial.
Plaintiff and his wife entered into a post-nuptial agreement. They eventually retained a mediator to assist the negotiations. Plaintiff sued the mediator for legal malpractice. His case was dismissed because he had his own lawyers and because the mediator was not his attorney. The court explained:
Goldstein also produced documentary evidence that utterly refutes plaintiff’s claim that an attorney-client relationship existed. Plaintiff’s complaint (Goldstein’s counsel, exh A) attaches a copy of the post-nuptial agreement signed by both plaintiff and Comstock. Paragraph 1.1 of the post-nuptial agreement states that “Each party acknowledges that his or her separate legal counsel has examined the attached financial information, has advised him or her with respect to same, and that each party fully understands the contents of such financial information of the other” (id.). Paragraph 1.2 states that “Each party acknowledges that: (a) he or she has had legal counsel of his or her own selection who advised him or her fully with respect to his or her rights in and to the property and income of the other and with respect to the effect of this Agreement and that such party understands such advice” (id.).
This agreement makes clear that each party consulted with his or her own attorney before signing the agreement. Further, plaintiff’s complaint supports this conclusion. Plaintiff alleges that defendants Fleischer and Berkman Bottger (the firm) were retained by plaintiff on or about March 22, 2013 to “review the Post-Nuptial Agreement drafted by Defendant Lori H. Goldstein” (plaintiff’s complaint ¶ 51). Clearly, plaintiff did have his own individual counsel review the agreement before he signed it.
The underlying case was routine and it arose out of an automobile accident. The defendant lawyers filed suit timely as to most of the defendants, but they failed to file a timely case as to one defendant. The underlying case settled for $10,000.
The lawyers won a summary judgment motion in the trial court, but summary judgment was reversed. The plaintiff had submitted sufficient evidence of a breach of duty (missing the statute of limitations) that caused damage to the plaintiff.
This case, while not discussing legal malpractice, is worth considering. The plaintiff, an administrator of an estate, filed a pro se wrongful death lawsuit against medical providers. It was undisputed that the pro se complaint was filed within the applicable statute of limitations period. After the statute of limitations ran, plaintiff retained a lawyer who filed an amended complaint. The Nebraska courts, in harsh rulings, dismissed the amended complaint. The Nebraska Supreme Court upheld the dismissal.
Why was the case dismissed if it was timely filed? The courts found that the pro se complaint was a nullity because it was not filed by an attorney. The court acknowledged the result was a harsh one, but essentially said it was too bad.
In my opinion, this ruling is unduly formalistic and old-fashioned. It is also poorly reasoned given the harm to plaintiff and the given the fact that the defendants were put on notice during the limitations period. In other words, a technical violation defeated a potentially valid lawsuit.
The case involves a fee dispute between a law firm and its former clients. The law firm took the underlying case on a contingent fee basis. The law firm inserted the following provision in its engagement letter, which requires arbitration of any fee disputes:
4. FEE ON TERMINATION. If Client terminates Firm’s employment before, conclusion of the case without good cause, Client shall pay Firm a fee and expenses based on the fair and reasonable value of the services performed by Firm before termination. If any disagreement arises about the termination fee, the client may choose two persons from a service profession, and the firm may choose one person. The firm will be bound by a majority decision of the three persons as to a fair fee. If the Firm terminates the representation, then it shall receive no fee or expenses.
The plaintiff law firm was terminated after it had received settlement offers from the other parties in the underlying lawsuit. (It is likely the lawyers felt that they had been unfairly terminated where they had been on the brink of achieving a settlement for their client).
In divorce cases that settle, the judge will hold a prove-up hearing. During that hearing, the parties are asked questions about the Marital Settlement Agreement. If a litigant testifies that the settlement was fair and appropriate, can he later sue his lawyer for “coercing” him into settling the case? The answer in Michigan is “No.” The legal doctrine is judicial estoppel – which provides that a litigant cannot assert contradictory positions in two cases. In this case, the wife testified at the prove-up that she agreed to the terms of the settlement. Later, she sued her divorce lawyer for legal malpractice and alleged that she was “tricked” into settling. The court dismissed the case and the Appellate Court affirmed in an unpublished opinion. The court essentially reasoned that it was unfair for the plaintiff to obtain the benefits of a settlement (to which she consented) and then turn around and sue her lawyer.
At the heart of plaintiff’s legal malpractice case is her assertion that she was tricked and/or coerced into agreeing to the settlement at the March 28, 2012 hearing at her divorce proceeding. But the doctrine of judicial estoppel renders her claims meritless. Judicial estoppel, described as the doctrine against the assertion of inconsistent positions, is a tool used by courts to impede those litigants that “play `fast and loose’ with the legal system.” Paschke v Retool Indus, 445 Mich 502, 509; 519 NW2d 441 (1994) (citation omitted). Under this doctrine, a party that has successfully and unequivocally asserted a position in a prior proceeding is estopped from asserting an inconsistent position in a subsequent proceeding. Wells Fargo Bank, NA v Null, 304 Mich App 508, 537; 847 NW2d 657 (2014); Detroit Int’l Bridge Co v Commodities Export Co, 279 Mich App 662, 672; 760 NW2d 565 (2008).
This unpublished opinion resolves an appeal in a legal malpractice case. The plaintiff sued his lawyer despite the fact that the lawyer settled the underlying case (a medical malpractice case) for $1.5 million.
The Defendant attorney moved to dismiss the case on the ground that the plaintiff was judicially estopped from proceeding because he consented to the settlement of the underlying case. The alleged malpractice was the lawyer’s alleged coercion of an expert witness (a medical doctor) into providing an opinion on surgical issues (and not informed consent). The trial court dismissed the case on estoppel grounds reasoning that because plaintiff had approved the settlement, he could not sue for legal malpractice.
The Appellate Court reversed. It held that it was premature to dismiss the case without conducting discovery and without holding a hearing. The key part of the opinion is quoted below:
Collateral estoppel is a doctrine that allows a court to bar relitigation of an issue that was already decided in a prior case. This case, Hexum v. Parker and Parker & Halliday, 2017 IL App (3d) 150514-U, is unpublished. The decision is one of many that reject a collateral estoppel defense to a legal malpractice action.
Hexum sued his lawyers for legal malpractice for allegedly giving him negligent advice in his divorce case; specifically as to the amount of maintenance he would owe.
In the underlying divorce case, Hexum entered into an agreement with his ex-wife to pay her $6250 per month and 35% of any bonus or stock option that he exercised.