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Abercrombie Group, LLC v. Clark, Court of Appeals of Texas, Second District 2023. The company sued its law firm alleging that the lawyers failed to bring suit in a timely fashion. The lawsuit concerned a promissory note. The plaintiff would be required to prove that had the lawyer acted differently the client would have won the underlying case.  Plaintiff claimed that the lawyer did not sue on time so that it was forced to settle its claim on a promissory note for less than it was worth. The key here is that the plaintiff has to prove that it would have won the underlying case on the promissory note. If plaintiff had no case, the loss is not caused by the law firm

First, a general discussion of the case within a case requirement.

The “case within a case” requirement, also known as the “trial-within-a-trial” or “suit-within-a-suit,” is a fundamental element in a legal malpractice case. Legal malpractice occurs when an attorney fails to provide competent and diligent representation to a client, and this failure results in harm to the client. To successfully bring a legal malpractice claim, the plaintiff (the former client) generally needs to demonstrate the following elements:

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I asked Chat GPT what “Legal Malpractice” is. It produced the following overview, which I then edited.

Legal malpractice refers to a situation in which an attorney fails to perform his duties to a client in a competent and ethical manner, resulting in harm or financial loss to the client. This harm can be due to the lawyer’s negligence, breach of fiduciary duty, or a violation of the standard of care expected from legal professionals. Here’s an overview of key aspects of legal malpractice:

1. Negligence or Breach of Duty: Legal malpractice typically involves an attorney’s failure to meet the standard of care expected in their legal profession. This may include errors in legal strategy, missed deadlines, failure to communicate with the client, or inadequate legal research.

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The Supreme Court of Texas has issued an opinion in USA Lending Group, Inc. v. Winstead, P.C., 669 S.W.3d 195 (2023). In this case the client sued its former law firm for failing to request damages in a default judgment motion. USA Lending hired the law firm to sue its former employee for breach of fiduciary duty. The law firm obtained a default judgment but did not seek an award of damages against the former employee of USA Lending. USA Lending sued the law firm for malpractice alleging that the Law Firm breached the duty of care by failing to include a damages claim in the default motion. The law firm moved to dismiss. The trial court denied the motion to dismiss but the Appellate Court reversed that decision on the ground that USA could not prove causation or collectability. The Supreme Court of Texas, in turn, reversed that decision and reinstated the complaint.

USA Lending provided an affidavit from its CEO that it instructed the law firm to seek damages and an affidavit from an expert witness, a former judge, who opinion that the request for damages would have been granted. A second expert opinion that the judgment could have been collected. The Supreme Court held that the affidavits of USA Lending created a question of fact that could not be resolved on a motion to dismiss and held that the case would be remanded for trial. The court stated:

The motion to dismiss stage is not a battle of evidence; it is the clearing of an initial hurdle.[39] The Act does not select for plaintiffs certain to succeed; it screens out plaintiffs certain to fail—those who cannot support their claims with clear and specific evidence.[40]  Because USA Lending adduced prima facie evidence to support its claim for legal malpractice, the court of appeals erred in ordering the case dismissed. Accordingly, we reverse the judgment of the court of appeals and remand the case to the trial court.

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In Paldino v. Johnson, 2023 Ohio 1947, Ohio Court of Appeals, 11th Appellate District 2023, the appellate court affirmed a legal malpractice verdict in favor of the plaintiff for a modest sum of money.

Plaintiff hired a lawyer to assist him in dividing a parcel of property he owned with a co-tenant. The court divided the property but because plaintiff failed to introduce evidence that he had paid the mortgage, the court awarded him less than he should have received. The amount plaintiff had paid towards the mortgage was $39,339.88. (Apparently the co-tenant had not paid any money toward the mortgage). Plaintiff sued his former lawyer for that amount and the trial court, after a trial, awarded him $39,339.88 in damages. The court entered judgment against the lawyer and the plaintiff appealed arguing that he was entitled to punitive damages.

The appellate court rejected the appeal and affirmed the judgment. There was no allegation of fraud. This was a simple oversight by the lawyer and punitive damages were not available. Illinois does not allow the recovery of punitive damages in legal malpractice cases.

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Buchanan v. Law Offices of Sheldon E. Green, P.C., 2023 NY Slip Op 1980 (New York Appellate Division, 2nd Department 2023), appears to be a slam dunk legal malpractice case but it was dismissed. Why? Because the plaintiff failed to plausibly allege that she would have won the underlying case.

The underlying case was a wrongful death case against a drug treatment facility. The alleged legal malpractice was the alleged failure to serve the complaint in the underlying wrongful death case. However, plaintiff failed to include sufficient allegations to show that she would have won the underlying case against the treatment facility.

The key discussion in the opinion appears here:

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The Illinois statute of limitations period governing legal malpractice cases is normally two years. The plaintiff has two years from the discovery of the injury to file suit. Illinois has another provision in the statute, which often protects lawyers involved in estate planning.

5/13-214.3(d) provides that: When the injury caused by the act or omission does not occur until the death of the person for whom the professional services were rendered, the action may be commenced within 2 years after the date of the person’s death unless letters of office are issued or the person’s will is admitted to probate within that 2 year period, in which case the action must be commenced within the time for filing claims against the estate or a petition contesting the validity of the will of the deceased person, whichever is later, as provided in the Probate Act of 1975. An action may not be commenced in any event more than 6 years after the date the professional services were performed.

For this reason, in inheritance disputes lawyers will often open an estate and start the claims period running. That leaves the aggrieved party six months to file any claims against the lawyers who drafted the estate plan. Dalessandro v. Quinn-Dalessandro, 2023 IL App (1st) 211119 is one such case. The adult children of the decedent filed a claim against their step-mother within the six month period, but they did not file against the lawyers who drafted the estate planning documents that disinherited them until after the six month period had expired.  The provision in the statute is a trap for the unwary practitioner who incorrectly believes he has two years to file a malpractice lawsuit. Nope. He only has six months to file such a claim.

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The Illinois Appellate court recently affirmed a grant of summary judgment in the case captioned Requet v. Stengel, Bailey & Robertson, 2023 IL App (3d) 210203-U. The opinion is unpublished, but it is worth reading. Requet was the managing member of PVY Development, an LLC engaged in developing and selling Walgreens stores. PVY retained the law firm of Coyle, Gilman, Stengel, Bailey and Robertson. Coyle personally converted funds belonging to PVY. Coyle was eventually disbarred. Stengel, Bailey & Robertson (Law Firm) formed in 2008 when those partners separated from Coyle. Requet sued numerous defendants, including the law firm, for legal malpractice, negligence, fraud and breach of fiduciary duty. Law Firm moved for summary judgment on the ground that there was no attorney client relationship between Requet and Coyle. Therefore, Law Firm owed no duty to Requet.

Requet argued based on Pelham v. Griesheimer, 92 IL 2d 13 (1982) that even though he was not a client of the law firm, it owed him a duty. To bring himself within the Pelham line of cases, Requet was required to show that the primary purpose of the attorney client relationship between Coyle and PVY was to benefit Requet. The Appellate Court agreed that Requet had not made that showing and affirmed the grant of summary judgment.

The reasoning:

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One of the persistent and more difficult challenges in legal malpractice cases is proving that the client would have won the underlying case but for the negligence of the lawyer. This is known as but/for causation or proximate causation. In this case the plaintiff was a superintendent of a school district. She was terminated from that position. She sued her lawyer for legal malpractice. She was unable to state a claim because she could not establish that the lawyer’s legal work was the cause of the termination. The court explains:

Here, even if the defendant had been negligent in his representation of the plaintiff in connection with the underlying matters, viewing the complaint in the light most favorable to the plaintiff (see Leon v Martinez, 84 NY2d at 87-88), it failed to plead specific factual allegations demonstrating that, but for the defendant’s alleged negligence, there would have been a more favorable outcome in the underlying matters or that the plaintiff would not have incurred any damages (see York v Frank, 209 AD3d 804, 807; Katsoris v Bodnar & Milone, LLP, 186 AD3d at 1506; Benishai v Epstein, 116 AD3d 726, 728). The plaintiff’s general contentions that but for the defendant’s negligence, she “would have litigated her claims against the Board, or in the alternative, procured a settlement agreement with better terms of compensation and otherwise far more beneficial” are speculative and, as such, cannot serve as a basis for a legal malpractice claim (see Jean-Paul v Rosenblatt,208 AD3d at 653; Katsoris v Bodnar & Milone, LLP, 186 AD3d at 1506).

Williams v. Silverstone, 2023 NY Slip Op 1917, New York Appellate Division, 2nd Department (2023).

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In Mid-City Electrical Corporation v. Peckar & Abramson, 2023 NY Slip Op 1085, the New York Appellate Division, Second Department affirmed the dismissal of legal malpractice claims against company attorneys.

First, the court ruled that the owners of Mid-City were not clients of Peckar & Abramson because they were not mentioned as clients in the engagement letter.

Second, the court held that Mid-City’s claim for legal malpractice did not state a claim because Mid-City was unable to allege that the outcome would have been different had the lawyers acted correctly. The lawyers allegedly failed to file an appeal from an adverse regulatory determination that Mid-City was not a disadvantaged business enterprise. The legal malpractice claim was dismissed because Mid-City did not allege that it would have won the appeal had the appeal been filed. Because there was no reason to believe the outcome would be different, there is no allegation of proximate causation and the case was dismissed. Proximate causation often rises up to defeat legal malpractice claims where the lawyer may have been negligent.

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One of the more obscure rules in the world of legal malpractice is that legal malpractice claims cannot be assigned. The lawyer-client relationship is one of “privity.” It is a direct relationship between the client and the lawyer. Sometimes in litigation, one party requests that the other party assign to it a legal malpractice claim against the other party’s lawyer. This is exactly what occurred in Thompson v. Harrie, No. 22-1058 (8th Circuit February 3, 2023). In this case, the claim against the lawyer was assigned by the defendant in the underlying lawsuit. Thompson had no attorney-client relationship with Harrie or the other defendants. Instead, the legal malpractice was assigned to her as part of a settlement. Courts frown on this behavior because it can leave the lawyer vulnerable to a claim from a party the lawyer never represented. In the underlying case Thompson sued Helgeson to recover for damages sustained in an automobile accident. Thompson won a judgment against Helgeson’s estate but decided not to collect. Instead, she obtained an assignment of any claim Helgeson could have made against his own attorney.

The court describes the procedural history of the case in this way:

In January 2018, Thompson sued the law firm and Nodak in South Dakota state court, alleging claims for the unauthorized practice of law, fraud and deceit, civil conspiracy, and barratry/abuse of process. The law firm removed the case to federal court, and the district court dismissed the entire suit for failure to state a claim. Following the dismissal, Thompson agreed with Helgeson’s estate that she would not execute the judgment if Helgeson’s estate assigned its potential claims against the law firm and Nodak to her. This agreement, which was reduced to writing, expressly included claims of malpractice, and directed that Thompson was entitled to all proceeds recovered from the assigned claims.

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