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Lawyer is Held Liable For Failing To Put Opposing Counsel’s Name on Settlement Check

DEHART v. Lavit, Ky: Court of Appeals 2014 – Google Scholar.

This case recognizes a duty of care to opposing counsel to put the opposing counsel’s name on a settlement check. Lavit sued DeHart because DeHart forgot to put his name on a settlement check. The settlement funds were spent before they could be recovered.

The duty to opposing counsel is based on expert testimony concerning local practices. The court accepted the testimony.

“The trial court’s findings seem to be largely reliant upon John Hubbard’s testimony. Hubbard, an attorney with forty-five years’ experience, testified that the normal course of dealing between attorneys in divorce cases is to place both the client’s and her attorney’s names on the settlement check. Mr. Hubbard asserted that this course of dealing stems from the existence of a duty on the disbursing attorney’s part to acknowledge the lien the other attorney has on his client’s settlement and to ensure the appropriate amount of money goes to the appropriate parties. In his testimony, Mr. Hubbard cited no rules or statutes which created this duty. From this testimony, the trial court concluded that “attorneys in Kentucky … always place the name of the attorney on the check when there is a settlement unless there is an understanding between the lawyers.”

On appeal, DeHart very briefly counters Mr. Hubbard’s testimony and the trial court’s finding of negligence, stating that Mr. Lavit’s request that his name be included on the check demonstrated that DeHart did not otherwise owe a duty to do so. However, we hold that DeHart’s brief arguments regarding negligence are insufficient to counter the evidence of record and to warrant reversal.”

Edward X. Clinton, Jr.