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.
On September 17, 2012, the Fluegel court voluntarily dismissed Rocha’s claims without prejudice. At that time, Rocha had already retained Johnson, and he had an absolute right to refile his Fluegel claims as a new action until, at least, September 2013, one year after the voluntary dismissal. Rocha exercised that right on October 30, 2012, by including his Fluegel claims in his voluminous 16-count complaint against FedEx.
Because Rocha’s Fluegel claims were still viable when Defendants were discharged as his counsel, he cannot establish legal malpractice as a matter of law. See Mitchell, 773 N.E.2d at 1195 (applying section 13-217 to determine that “plaintiff’s cause of action was viable, as a matter of law, well after [prior counsel] were discharged and successor counsel was retained”).”
Comment: there is no legal malpractice case because nothing the lawyer did or did not do caused Rocha to lose his case against Federal Express.
Edward X. Clinton, Jr.