Articles Posted in Attorney-Client Relationship

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One area that can lead to claims against lawyers occurs when the lawyer accepts one part of a representation but declines to represent the client in another matter. Any declination should be communicated clearly to the client and confirmed in writing. If you don’t do that, the client may later bring a malpractice claim against you.

In Boukari v. Schwartzberg, LLC, 2024 NY Slip Op 01247 (March 7, 2024), the plaintiff hired the defendant firm to complete a Workers’ Compensation matter. The lawyers declined to represent the plaintiff in any personal injury action. Plaintiff sued alleging that the firm missed the statute of limitations on the personal injury claim. The Appellate Division held that summary judgment for the law firm should have been granted. The explanation: ”

“Plaintiff’s legal malpractice action should have been dismissed. Contrary to the motion court’s finding, the record conclusively established, as a matter of law, that defendants had clearly informed plaintiff during their initial meetings in May 2014, by way of unambiguous writings confirmed by plaintiff’s signature, that defendants were only assisting her in substituting counsel in a Workers’ Compensation matter and that they had declined to represent her in any personal injury action against the building owner or any third party arising from her slip and fall. Plaintiff opposed the motion only with an attorney affirmation. She did not submit an affidavit setting forth her version of the initial conversations with defendants or any other interactions that would support her attorney’s contentions that she was under a reasonable impression that defendants had agreed to represent her on a personal injury claim or that the law firm did not clearly disclaim representation (see Zuckerman v New York, 49 NY2d 557 [1980] [an attorney affirmation is insufficient to put before the court facts of which she has no knowledge]”

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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summary judgment in the case captioned Requet v. Stengel, Bailey & Robertson, 2023 IL App (3d) 210203-U. The opinion is unpublished, but it is worth reading.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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A recent decision by the Ohio Court of Appeals, Meehan v. Smith, 2022 Ohio 2359 (8th Appellate Dist. 2022), is instructive on the difficulties that an expected beneficiary of a will or estate plan sues for legal malpractice. The expected beneficiary (daughter of the decedent) claimed that she was a client or intended beneficiary of the estate planning law firm that revised her mother’s estate plan.

{¶ 15} At the discovery deposition in this case, appellant testified that she never signed an engagement letter with appellees. She also testified that she personally never paid them any money (she only issued checks drawn from Teepee & Petunia’s accounts at her parents’ direction). However, appellant testified that when her parents initially sought estate planning services, and she and other family members met with appellee attorney Smith, “it was [her] assumption that he was representing the entire family.” Appellant testified that she had that assumption because Smith “would always say to [her] specifically if [she] had any questions to make sure [she] [s]hould give him a call.”

{¶ 16} Appellant further testified that she “felt [she] was being included” in the meetings with her parents and brothers, and Smith “represented the documents.” Donna’s estate planning also provided for the possibility that her 2018 trust funds could be used for appellant’s own estate planning — a point appellant relies on for her claim of the establishment of an attorney-client relationship. Appellant did admit that Smith never told her he was representing the entire family. She further admitted that Smith never told her he was representing her personally. She testified that Smith never told her in “those specific words” that he was her attorney, but she “felt like [she] was his client because [she] was included, as were [her] brothers that were there. It was [her] understanding that [Smith] was representing the family under the estate planning of [her] parents.” (Emphasis added.) The record demonstrates that appellant does not have any legal training.

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This case is captioned Khoury v. Kathleen Niew, Stanley Niew, and Niew Legal Partners, 2021 IL App (2d) 200388. Kathleen Niew converted funds of the plaintiffs that were held in her firm’s trust account. The only issue on appeal was whether the trial court properly held that Stanley Niew also had a fiduciary duty to the plaintiffs. The Appellate Court reversed the judgment and held that Stanley Niew did not owe a fiduciary duty to the plaintiffs. The court’s reasoning is important for all lawyers to read and understand:

¶47 Plaintiffs do not contend that they had a fiduciary relationship with Stanley as a matter of law based on an attorney-client relationship. This is wise, as the formation of an attorney-client relationship is a consensual relationship in which the attorney must indicate acceptance to work on behalf of the client, and the client must authorize the attorney to work on their behalf. …The record shows that plaintiffs and Stanley barely communicated at all, much less demonstrated a consensual relationship for Stanley to work on their behalf. Plaintiffs admit that they never spoke with Stanley via phone, e-mail, or text and at most Jamal could recall three short interatctions, which can be fairly described as small talk.The record does not support that Stanley ever agreed to perform work on their behalf, performed work on their behalf, or billed them for his services.

The court held that there was no attorney-client relationship with Stanley and held that the trial court erred in failing to grant summary judgment on his behalf.

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It is generally well-settled that a party cannot sue the laywer who represents an opposing party. In the case Hitchcock v. USAA Casualty Insurance Company, (M.D. Florida) (6:18-cv-1986-ORL-28TBS), Hitchcock sued USAA after a she became subject to a large judgment in a personal injury action. She alleged that USAA should have settled the case within the policy limits. What makes her case interesting is that she also tried to sue USAA’s lawyers. The court dismissed that action on the ground that there was no attorney-client relationship between Hitchcock and the law firm. Nor was Hitchcock an intended third-party beneficiary of the attorney-client relationship.

Ed Clinton, Jr.

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One question that comes up over and over again is “How do I prove that the lawyer (who I am unhappy with) was my lawyer?” How do I demonstrate an attorney-client relationship.

This video has some basic thoughts on that issue:

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The case is GB v. Christine Rossi, A-240-17T3. The case was decided in New Jersey and is an unpublished opinion. The case illustrates one problem with legal malpractice cases – there may be wrongful conduct, but the plaintiff must tie the wrongful conduct to her damages.

Plaintiff was getting divorced.   She met with Rossi for about an hour and made numerous disclosures. Rossi declined representation.

Later, plaintiff’s husband filed for a temporary restraining order against plaintiff alleging that she had committed domestic violence. At trial, Rossi represented husband. Husband won the trial and GB was evicted from the marital home. Please note that Rossi did not file an appearance in the divorce case. She only appeared in the domestic violence case.

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One issue that arises frequently in legal malpractice cases is – to whom does the lawyer owe a duty? Here, a condominium owner sued the lawyer for the condominium association for breach of contract. The court dismissed the case and the Colorado Supreme Court affirmed the dismissal.

The Colorado Supreme Court followed well-settled law in holding that the association’s lawyer owed no duty to an individual condominium owner. The lawyer represents the association, an organization composed of individual members. Just because a condominium owner is a member of that group does not create an attorney-client relationship.

The Court reasoned that any other holding would hurt the lawyer’s duty of loyalty to his client, the Association. Further, allowing the lawsuit to proceed would allow “an unforeseeable and unlimited number of people” to make claims against lawyers.

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One question which comes up frequently is whether a client can sue his former lawyer for legal malpractice based on what the client believes is an inflated legal bill.

A legal fee dispute is essentially a breach of contract case filed by the lawyer against the former client. Here the specific complaint was that the lawyer did not explain that, under the fee agreement, the lawyer was not required to refund any portion of the client’s deposit.

“Plaintiff next argues defendants breached a fiduciary duty to plaintiff by failing to properly advise him as to the non-refundable aspect of the retainer agreement. “In entering a contract at the outset of a representation, the lawyer must explain the basis and rate of the fee . . . and advise the client of such matters as conflicts of interest, the scope of the representation, and the contract’s implications for the client. . . .” Restatement (Third) of the Law Governing Lawyers § 18 cmt. d (Am. Law Inst. 2000). RPC 1.4(c) states, “A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”

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Sandler was a plaintiff in an underlying medical malpractice action in which he alleged that he received substandard care at Advocate Good Samaritan Hospital. Advocate retained a standard of care witness who testified against him. Sandler, even though he won the underlying case, sued Advocate’s expert on the ground that the expert failed to diagnose his brain injury. The trial court dismissed the case on the ground that there was no doctor-patient relationship and no duty of care. The Appellate Court affirmed, but on different reasoning. The Appellate Court reasoned that a statement by an opposing expert in a report or deposition was absolutely privileged. For many years courts have recognized that a lay witness is immune from liability for his pertinent testimony at trial. The relevant caselaw, quoted in Sandler, is as follows: “As a general rule, witnesses enjoy an absolute privilege from civil suit for statements made during judicial proceedings. Ritchey v. Maksin, 71 Ill. 2d 470, 476 (1978). The purpose of the rule is to preserve the integrity of the judicial process by encouraging full and frank testimony. Layne v. Builders Plumbing Supply Co.,210 Ill. App. 3d 966, 969 (1991). ” Sandler ¶ 26.

Source: Sandler v. Sweet, 2017 IL App (1st) 163313 – Ill: Appellate Court, 1st Dist., 6th Div. 2017 – Google Scholar

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