Articles Posted in Legal Malpractice

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The plaintiff filed a malpractice claim against her divorce lawyers. However, her claim did not succeed because she did not provide expert testimony. That testimony, from a family law lawyer, would be necessary to show negligence.

This is one of those truths that we cannot repeat enough times – an expert is needed to show how the lawyer’s performance fell short of the standard of care.

Source: Nolan v. Ernst, 2017 Ohio 1011 – Ohio: Court of Appeals, 12th Appellate Dist. 2017 – Google Scholar

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Lawyers have rights to hold the client’s file or other property as security for payment. Here the lawyer held on to a former divorce client’s file indefinitely. The client eventually sued the lawyer for legal malpractice – under the theory that the lawyer had no right to hold the file. Had the case been decided on that issue, it would have been an important case. However, the court dismissed the case on statute of limitations grounds, based on the three-year Arkansas statute of limitations.

Source: Haynes v. Wagoner, Dist. Court, ED Arkansas 2017 – Google Scholar

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Goldstein was retained as a mediator by Barrett and his then wife. After meeting with the couple, Goldstein drafted a post-nuptial agreement that Barrett and his wife later signed. (A post-nuptial agreement is one that a married couple enters into while a prenuptial agreement is entered into before the marriage). When wife filed for divorce, Barrett sued Goldstein alleging legal malpractice.

Goldstein’s defense was that there was no attorney-client relationship between her and Barrett because Barrett and his then-wife were each represented by counsel. Therefore the act of drafting a post-nuptial agreement did not give rise to a lawyer-client relationship. The court agreed with Goldstein and dismissed the legal malpractice claim. The court explained why it found that there was no attorney-client relationship between Goldstein and Barrett:

Here, plaintiff’s complaint attempts to characterize Goldstein’s role as an attorney-client relationship with plaintiff, but plaintiff failed to allege any facts to substantiate this claim.

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This case is interesting because it dismisses a legal malpractice claim because the expert did not reveal how the negligence of the attorney caused the injury of the plaintiff. The opinion does not shed as much light on the facts of the case as I would like it to. However, the opinion does explain that although plaintiff had an expert and the expert prepared a report, the expert did not sufficiently explain proximate causation. Proximate causation is a difficult concept for nonlawyers to understand. Indeed, sometimes lawyers do not understand it.

In sum, the expert report said the lawyer was negligent but it failed to explain why the negligence caused the bad result that the plaintiff received. The opinion, though it is based on Minnesota law, is consistent with the modern trend in the cases which requires expert reports to be more complete.

Edward X. Clinton, Jr.

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The Seventh Circuit has affirmed a decision to dismiss a legal malpractice complaint in which West Bend Insurance alleged that its former counsel committed legal malpractice in connection with the defense of a worker’s compensation claim. The claim set forth numerous deficiencies in the lawyer’s performance in the worker’s compensation case, including his unauthorized decision to admit liability. However, the complaint was dismissed because West Bend never explained why the alleged errors would have made a difference. Put another way, West Bend never alleged how the result would have been different in the absence of the alleged breaches of duty. Judge Ripple’s opinion sets forth the court’s reasoning on proximate causation in some detail and is worth quoting here:

There is no dispute that West Bend has described adequately the duty element in its malpractice claim. Nor is there any disagreement about the adequacy of West Bend’s narrative with respect to the alleged attorney conduct constituting a breach of that duty. In that respect, West Bend alleges that Mr. Schumacher, having assumed responsibility for the defense of the claim, failed to prepare adequately for the hearing, revealed inappropriately the defense theory of the case to Marzano’s counsel, and then, without authorization, conceded liability for Marzano’s workers’ compensation claim.[15]

The allegations with respect to causation and damages present, however, significant concerns. At the outset, we note that the treatment by the Second Amended Complaint of the underlying workers’ compensation claim, which, as we have explained, is central to an assessment of causation and damages, is markedly different from the treatment of Mr. Schumacher’s alleged litigation conduct. While the complaint describes the conduct in some detail, it describes the underlying workers’ compensation claim in rather summary fashion. Specifically, while the complaint identifies the injured party as John Marzano, it tells us nothing about his claimed injury or his claim against his employer. Instead, it summarily states that “[p]rior to August 2006, there existed certain factual defenses and a medical causation defense to the Marzano claim.”[16]

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This is an unpublished case which had an interesting result. Plaintiff was represented by the Defendant attorney in her divorce case. Her husband, David Whittlemore, was apparently in financial difficulties. David Whittlemore offered an unusual settlement term to his soon to be ex-wife. He claimed that his wealthy brother Harvey would guarantee his maintenance obligations to her. In 2011, David filed for bankruptcy and the plaintiff contacted her lawyer who, after some correspondence, revealed that the wealthy brother had never signed the guarantee. Plaintiff then brought a legal malpractice claim against her former attorney.

The court set forth the facts as follows:

On October 11, 2007, Ms. Whittemore and her husband, Mr. David Whittemore, placed a settlement agreement on the record. Under the agreement, David Whittemore agreed to make monthly alimony payments until December 2021. He also agreed to procure a guaranty for his alimony payments from his wealthy brother, Mr. Harvey Whittemore.

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Julia Williams and I represented David Goodson, an Illinois attorney, who was sued by First American Bank when a check he deposited turned out to be a fraudulent check. Goodson did not know that the check was fraudulent. Instead, he believed that the check was a payment of past due spousal support. We obtained a dismissal of the complaint in the District Court and the Seventh Circuit affirmed the dismissal. Julia Williams handled the oral argument and signed the briefs on appeal.

I won’t attempt to summarize the excellent opinion of Judge Posner.

Edward X. Clinton, Jr.

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This case, Fox v. Seiden, has already made two trips to the Illinois Appellate Court. It is interesting because it is the rare case in which the court granted summary judgment in favor of the plaintiff.

The underlying case was captioned Multiut Corp. v. Draiman. The current case was brought on behalf of Miriam Draiman, one of the defendants in the Multiut case. In 2001, the court found that Draiman’s husband had engaged in deceptive trade practices and assessed attorney fees against “the defendants.” Plaintiff sought fees of $1,317,026.85. There was a big problem with this finding in that Miriam Draiman was not found liable on the consumer fraud act count. Thus, the judge erred in awarding attorney fees against “the defendants.”

Seiden appeared for Miriam Draiman in the post-trial proceedings. The Appellate Court describes the alleged error as follows:

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Sometimes, for reasons that are obscure, the ARDC takes a set of facts that appear to prove negligence and makes a disciplinary complaint out of them. In the case of Barbara Ann Susman, the ARDC charged an immigration lawyer with: (a) failing to act with reasonable diligence, failing to promptly inform the client of an adverse decision, failing to keep the client reasonably informed, making a false statement to the ARDC, conduct involving dishonesty, failing to respond to the ARDC’s demands for information and engaging in conduct prejudicial to the administration of justice.

The facts demonstrated that Susman was hired by David Yonan to file an appeal in an immigration matter. On September 1, 2010, the Immigration Service denied his petition for permanent residence based on his status as an alien of extraordinary ability. Yonan had until October 4, 2010, to appeal. Yonan met with Susman but did not promptly pay the retainer she requested. On Saturday, October 2, 2010, Yonan made a deposit of the amount of the filing fee. Susman then took the appeal to Federal Express and believed that Federal Express would deliver the appellate papers by Monday, October 4. Some months later, the USCIS rejected the appeal on the ground that the notice of appeal was not received until October 5, 2010. Yonan declined to appeal that decision. Later, he retained another lawyer and moved to reopen his appeal.

The Panel ruled that the ARDC failed to prove a lack of diligence because Yonan did not pay the filing fee until the last minute. The Panel noted that the evidence showed that Susman acted with diligence:

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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]