Articles Posted in Legal Malpractice

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We are often asked to evaluate potential malpractice claims. Here is what we need to know before we can take your case:

(a) What happened? How did things go bad? Why do you believe your lawyer was responsible? In your opinion what was the mistake of the lawyer?

(b) When did it happen? This is really important because the statute of limitations is usually two years from whenever you sustained damages from the alleged malpractice. The statute of limitations is complicated and can require extensive analysis. There are often no clear answers to this question.

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In Estate of Christo v. Law Offices of Thomas Leahy, 2021 IL App (1st) 200575-U, the Appellate Court reversed the entry of judgment in favor of a law firm in a legal malpractice case filed by the Public Guardian. The Leahy Firm had represented Barbara Rose Christo, Peter Christo and Fay Christo in a wrongful death action arising out of the death of their father, Thomas Christo.

The case settled and each plaintiff received approximately $550,000. The complaint alleged that Peter Christo misappropriated the funds belonging to his sister, Barbara, who was disabled. The legal malpractice complaint alleged that the Law Firm was aware that Barbara had significant intellectual disabilities but it failed to seek a guardianship for Barbara or otherwise protect her interest in her share of the settlement funds.

After a bench trial the trial court ruled in favor of the Law Firm on all claims holding that the Law Firm met the duty of care and that Barbara could not prove proximate causation. Barbara appealed on several grounds. The Appellate Court reversed the judgment on the ground that the trial court had misstated the evidence, in particular the testimony of a Doctor who testified that Barbara was disabled.

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Rojo v. Tunick, 2021 Il App (2d) 200191, is a legal malpractice case filed by a criminal defendant against his former lawyer. Usually these cases are quickly resolved because the plaintiff cannot plead actual innocence. Since Rojo was convicted he could not plead actual innocence. However, Rojo alleged a second count of legal malpractice that he was overcharged by the lawyer. He claimed that hte lawyer withdrew before trial and that he was overcharged. The Appellate Court held that the actual innocence rule does not bar such claims and reversed the judgment dismissing the complaint.

The Appellate Court followed a 1995 Seventh Circuit decision, Winniczek v. Nagelberg, 394 F.3d 505 (7th Cir. 2005) that held that a criminal defendant need not allege or prove actual innocence to argue that he was overcharged.

¶ 41 The present case presents the opportunity Winniczek envisioned, and we take the position that the Seventh Circuit anticipated we would. Plaintiff’s legal-malpractice action is based on two distinct theories that parallel the two counts in Winniczek. Plaintiff alleged that (1) defendant’s representation of plaintiff was deficient and that this led to plaintiff’s conviction and (2) defendant owed plaintiff compensation for withdrawing from the case prematurely, refusing to refund fees paid, and forcing plaintiff to pay for new counsel. Consistent with Winniczek, we hold that the absence of an actual-innocence allegation barred the legal-malpractice claim asserting that defendant’s deficient performance led to plaintiff’s conviction. However, the absence of an actual-innocence allegation did not bar the legal-malpractice claim seeking reimbursement of fees. That claim, unlike the deficient-performance claim, did not blame defendant for plaintiff’s conviction.

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Minnesota has enacted a statute that requires a plaintiff to file an affidavit with the complaint stating that the complaint is supported by expert testimony. Full expert disclosures are then required within 180 days of filing the case. In Mittelstaedt v. Henney, 954 NW 2d 852 (2021) the Minnesota Court of Appeals held that the expert requirement applies even when the plaintiff sues an attorney for breach of fiduciary duty. Because attorneys enter into fiduciary relationships with their clients, it is often possible to allege that a breach of duty by an attorney was either (a) negligence or (b) a breach of fiduciary duty. The case simply holds that the same expert testimony requirements apply no matter what theory the plaintiff chooses.

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In Walker v. Shaevitz & Shaevitz, 2021 NY Slip Op 1799 (Appellate Division Second Department) the court affirmed the dismissal of a legal malpractice claim where the plaintiff attempted to create an issue of fact with her testimony. The problem for the plaintiff was that her testimony in the legal malpractice case contradicted her testimony in the underlying case. Result: summary judgment for defendant. The court found that the contradictory testimony was insufficient to create an issue of fact.

Should you have a question concerning a legal malpractice issue, do not hesitate to contact us.

Ed Clinton, Jr.

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Patent malpractice claims are a rare, but growing area of legal malpractice. However, in Morgan & Mendel Genomics v. Amster Rothstein & Ebenstein, LLP, 2021 NY Slip Op 30465, the trial court dismissed a patent malpractice claim because the client failed to give correct information to the law firm.

The facts:

On October 15, 2012, Einstein asked the Defendant to help obtain patent protection for its new discovery (id., ¶ 23). When the Defendant asked Einstein, their own client, for the publication date of the Article, Einstein advised that it was first published in March 2012 (id. 26). This was however incorrect. In fact, although the Defendant learned that the Article had appeared online on January 11, 2012 and emailed Dr. Ostrer and Mr. Loke on November 26, 2012 to advise them of the same, the article was first published in an “Early View” service on December 15, 2011 (id., 18-20, 29). Subsequently, the Defendant filed a provisional patent application on January 8, 2013 and a non-provisional application on January 8, 2014 (the Application) (id., ¶¶ 36-37)…..

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One common issue that can trip up a litigant is the failure to disclose a civil lawsuit in a bankruptcy petition. The lawsuit is an asset of the bankruptcy estate. Failing to disclose the existence of the lawsuit can lead to the dismissal of the civil lawsuit. In Horvath v. Budin, Reisman, Kupferberg & Bernstein, LLP, 2021 N.Y. 30105 (U), the trial court (referred to in New York as the Supreme Court) denied the law firm’s motion to dismiss in just such a case.

After his civil lawsuit was dismissed for failure to include it as an asset of the bankruptcy estate, Horvath sued the law firm for negligence.  The summary of the facts indicates that the civil lawsuit was not disclosed until after Horvath’s Chapter 13 plan was confirmed.

In 2009, plaintiff filed a Chapter 13 Petition in the United States Bankruptcy Court for the District of New Jersey (“the Bankruptcy Court”) under Case No. 09-38537-KCF. Doc. 22. Plaintiff was represented in the bankruptcy proceeding by Jules Rossi, Esq. Doc. 22. On September 15, 2010, plaintiff was allegedly injured while he was a passenger in an elevator in a building in Manhattan. Doc. 21 at par. 4. Plaintiff thereafter retained the Law Offices of Michael Lamonsoff (“Lamonsoff”) to commence a personal injury action on his behalf against Gumley Haft Kleier Inc. (“GHK”) and Eltech Industries (“Eltech”). The action against GHK and Eltech was commenced in the Supreme Court, Bronx County in 2010 under Index Number 310013/10 (“the Bronx County action”). Doc. 17 at par. 16. Lamonsoff also represented plaintiff in an unrelated personal injury action commenced in New York County in 2010 under Index Number 115395/10 (“the New York County action”). Doc. 17 at par. 17.

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If you believe you have been harmed by the actions of an attorney, here are some questions we would need the answers to before we could decide whether or not to take your case.

  1. Who is the lawyer or law firm that you believe committed malpractice?
  2. Were you a client of that law firm? Often the defendant will argue that the claimant was not a client of his firm. What evidence do you have to show that there was an attorney-client relationship? Did the lawyer prepare an engagement letter? Did you sign the letter?
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A recent case, Masellis v. Law Offices of Leslie Jensen, 50 Cal. App. 5th 1077, Court of Appeals of California (5th District. June 2020), discusses the burden of proof in a “settle and sue” legal malpractice case. That is a case where the plaintiff (represented by the lawyer) settles the underlying matter and then sues his lawyer alleging that the settlement was insufficient due to legal malpractice.

Here is the summary by Court of the issue and the conclusion:

The main legal question in these appeals is what burden of proof is appropriate in a legal malpractice action alleging an inadequate settlement? The defendant attorney Leslie F. Jensen (Attorney) addresses this question in two steps. First, she contends the elements of causation and damages in a “`settle and sue'” legal malpractice case[1] must be proven to “`a legal certainty.'” (Filbin v. Fitzgerald (2012) 211 Cal.App.4th 154, 166 [149 Cal.Rptr.3d 422] (Filbin).) Second, she contends the legal certainty standard imposes a burden of proof higher than a mere preponderance of the evidence.

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