Articles Posted in Case Within A Case

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This case illustrates an important difference in the law. In Pennsylvania, a party cannot sue for legal malpractice if that same party settled the underlying case, unless that party can prove that it was fraudulently induced into entering the settlement agreement.

In Kachmar, the plaintiff sued his former matrimonial lawyer on the ground that the lawyer failed to include a waiver of spousal support in a prenuptial agreement. Unfortunately, Kachmar settled the underlying divorce case, which meant that he could not bring a legal malpractice case.

Illinois does not follow this rule. In Illinois, a party which has settled the underlying case can sue for legal malpractice. Where a case is settled, it is often difficult to prove that but for the lawyer’s negligence, the party could have obtained a better result.

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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.[2]

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This is an important issue for legal malpractice attorneys. Is a former criminal defendant required to show actual innocence before he can sue for legal malpractice? Most courts have answered this question with “Yes,” but some states are beginning to deviate from the doctrine. The Iowa Supreme Court held that actual innocence is not required to bring a malpractice suit and but that guilt/innocence determinations are relevant to proof of proximate causation.  In other words, you can’t show the lawyer’s actions were the proximate cause of the conviction if you were really guilty.

Regarding actions for malpractice by a criminal defendant, the Restatement concludes that “it is not necessary to prove that the convicted defendant was in fact innocent,” although it notes that “most jurisdictions addressing the issue have stricter rules.” Restatement (Third) of the Law Governing Lawyers § 53 cmt. d, at 392 (Am. Law Inst. 2000) [hereinafter Restatement]. The Restatement adds,

As required by most jurisdictions addressing the issue, a convicted defendant 166*166 seeking damages for malpractice causing a conviction must have had that conviction set aside when process for that relief on the grounds asserted in the malpractice action is available.

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An Ohio court has affirmed a verdict in favor of a legal malpractice plaintiff. By itself, that would not be worth discussing. However, the result of the case, a verdict of $1,192.12, was a clear disappointment for the plaintiff.

The underlying case was an auto accident in which the plaintiff suffered apparently minor injuries. He hired a lawyer to file a case. Unfortunately, the lawyer missed deadlines and voluntarily dismissed the case. The lawyer then missed the deadline to refile the case and the claim became time-barred.

There is no question that the lawyer made an error. During the legal malpractice trial, the lawyer conceded that he had been negligent but contested the issue of damages. The jury then awarded $1,192.12 in damages. In sum, a great deal of work was done to prove a legal malpractice claim but the jury decided that the damages were minor.

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To win a legal malpractice case the plaintiff must prove a case-within-a-case and show that, but for the breach of the standard of care by the attorney, the plaintiff would have prevailed in the underlying case.  Here are some examples of client complaints about lawyers that won’t meet that standard.

  1. “He never returned my calls.” Even if this is literally true, the plaintiff must still show that there was some valuable information that the attorney ignored that caused the loss of the underlying case. Failing to communicate with the client may be a breach of the duty of care, but it is not legal malpractice unless it caused damage to the client.
  2. “He did not take discovery.” This might be negligence, but the plaintiff must show what the discovery would have shown had it been taken. Thus, if proper discovery would have identified a missing marital asset in a dissolution of marriage case, the plaintiff may be able to state a claim. If discovery would have revealed nothing material, however, the failure to take discovery did not cause any damage to the client and there is no legal malpractice.
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This case, William L. Gunlicks v. Mayer Brown LLP, 2014 IL App (1st) 130845-U, is far too important to be reported in an unpublished opinion. Sadly, the opinion is unpublished for reasons that are unfathomable. The compliant alleges that Mayer Brown breached the duty of care in representing the plaintiff after he had agreed to the entry of a cease-and-desist order.

Gunlicks was a client of Mayer Brown. He was accused by the Securities and Exchange Commission (SEC) of violating Section 17(a)(2) of the Securities Act of 1933. Gunlicks was the founder, CEO and director of Founding Partners Capital Management Company, an investment adviser. In 2007, the SEC and Gunlicks entered into a cease-and-desist order that required “Gunlicks to cease from violating Section 17(a)(2) of the [1933 Act]. According to the cease and desist order, the SEC found that Gunlicks violated Section 17(a)(2) when he ’caused Founding Partners to have Stable-Value pay an undisclosed fee to Stewards and had Equity Fund and Stable-Value engage in transactions that were not consistent with their offering memoranda including transactions with entities under common control with Founding Partners.'” Opinion at ¶ 8.

In 2009, the SEC commenced an onsite compliance examination of Founding Partners’ records to determine if Founding Partners was in compliance with the cease-and-desist order. Shortly thereafter, the SEC filed a complaint for injunctive relief against Founding Partners and Gunlicks. The complaint alleged numerous securities law violations by the Defendants. As might be expected, the litigation went poorly for Founding Partners and Gunlicks.

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I last discussed this problematic topic on June 30th. This unpublished decision, Godbold v. Karlin & Fleisher, LLC, 2014 IL App (1st) 131523-U, illustrates a malpractice trap contained in Illinois law.

Usually, the rule in Illinois is that you must wait to file your malpractice action until you lose the underlying lawsuit. However, you should not wait to sue while the underlying decision is on appeal. That is the unfortunate mistake that the lawyers made in the Godbold case.

Underlying Case – Plaintiff Missed the Statute of Limitations

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Illinois has two statutes that establish time limits for when you can sue for legal malpractice. The statute of limitations gives the plaintiff two years from the time the negligence was discovered. However, the statute of repose bars any claim unless the negligent act occurred within six years of the filing of the lawsuit.  This means that you have two years from the time you discovered the injury to file a lawsuit, unless the negligent act of the lawyer is more than six years old.

What happens when you believe that your lawyer’s advice caused you to be sued? The Illinois courts have held in several such cases that the plaintiff is not required to sue for malpractice immediately. Instead, the plaintiff can wait until the underlying litigation is resolved. One such case is Warnock v. Karm Winand and Patterson, 1-06-0341, 876 N.E.2d 8 (2007).  The plaintiffs hired the defendant law firm to handle a real estate closing. The closing was to occur in April 2000. Plaintiffs claimed that the buyer (Mr. and Mrs. Brown) defaulted and plaintiff attempted to retain the earnest money. On August 1, 2000, the Browns filed suit, claiming that that plaintiffs had no right under the contract to withhold the earnest money.

Question – were the plaintiffs required to file suit against their lawyer when they were sued?  Did plaintiffs malpractice claim arise on August 1, 2000? Or did the claim arise when the plaintiffs lost the underlying case?

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WEST BEND MUTUAL INSURANCE COMPANY v. RODDY, LEAHY, GUILL & ZIEMA, LTD., Dist. Court, ND Illinois 2014 – Google Scholar.

This is a legal malpractice case arising out of a defense of a workers compensation claim. West Bend alleged that the defense counsel retained to handle the workers compensation claim did not meet their professional duties because they conceded liability and failed to prepare an adequate defense, including failing to adequately depose the treating physician and failing to develop a causation defense.

Judge Guzman dismissed the complaint pursuant to Rule 12(b)(6) on the grounds that the record demonstrated that the lawyer defendants did not concede liability and failed to plead causation. The opinion explains:

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This is a legal malpractice case in which the plaintiff, after enormous effort, obtained a damages award of $2000 at trial. The Appellate Court affirmed the damage award.  Unfortunately, the Appellate Court issued an unpublished opinion, Hubertus Investment Group v. Smiegelski & Wator, P.C., 2014 IL App (1st) 131927-U. This case is an example of a case where there may have been negligence, but the damages were minimal.

On May 7, 2009, Hubertus entered into a contract to purchase 12 vacant properties in Chicago, Illinois, from Dragan Radojcic for the sum of $190,000. The closing was scheduled for June 1, 2009. Hubertus alleged that the lawyer defendants were negligent because they failed to secure water certificates from the City of Chicago and because they failed to obtain title to a lot at 4407 West Fulton in Chicago, Illinois. The Fulton lot was appraised at a value of $2000. The water certificate (when obtained) proves that the water bill of the City of Chicago has been paid.

Hubertus also alleged a breach of title commitment against Chicago Title. However, on January 23, 2013, CTIC “produced, executed and recorded quitclaim deeds encompassing 11 of the 12 properties; the remaining property at 4407 West Fulton had been sold for taxes.” The trial court ultimately granted summary judgment in favor of Chicago Title. The case proceeded to trial against the lawyer defendants.