Articles Posted in Appellate Malpractice

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Fink v. SHELDON BANK, Ill: Appellate Court, 1st Dist., 3rd Div. 2013 – Google Scholar.

Illinois has long followed the actual innocence rule, which holds that a criminal defendant may not sue his former attorney for legal malpractice unless he can prove that he was actually innocent of the crime.

A plaintiff in a legal malpractice case must prove a case-within-a-case, that is he must prove that, but for the lawyer’s negligence he would have won the underlying case. In the criminal context, the word “won” means “actual innocence.”

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Vermont Mut. Ins. Co. v. McCABE & MACK, LLP, 2013 NY Slip Op 2392 – NY: Appellate Div., 2nd Dept. 2013 – Google Scholar.

This case was filed by an insurance company against lawyers who were assigned by the insurance company to handle a subrogation action. The complaint asserted two legal theories; legal malpractice and fraud.

The trial court dismissed the fraud claim. The Appellate Division reversed. It held that the insurance company had properly alleged fraud when it claimed the lawyers (a) billed it for filing a motion for default judgment; (b) received payment for the work when (c) the lawyer never actually filed the motion for default judgment.

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Filed October 5.

This is a disciplinary case against Herbert Arthur Bates, an attorney in Illinois.  Bates was retained by a convicted criminal to handle his appeal.  Bates was paid $10,000.  Unfortunately, he missed numerous deadlines and the appeal was dismissed.  He also failed to return the transcripts to the inmate so the inmate could do the appeal by himself.  The ARDC Hearing Board recommended a suspension of eighteen months.  Bates ultimately refunded the money he was paid to handle the appeal.

The Panel explains: