Articles Posted in Legal Malpractice

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I asked Chat GPT what “Legal Malpractice” is. It produced the following overview, which I then edited.

Legal malpractice refers to a situation in which an attorney fails to perform his duties to a client in a competent and ethical manner, resulting in harm or financial loss to the client. This harm can be due to the lawyer’s negligence, breach of fiduciary duty, or a violation of the standard of care expected from legal professionals. Here’s an overview of key aspects of legal malpractice:

1. Negligence or Breach of Duty: Legal malpractice typically involves an attorney’s failure to meet the standard of care expected in their legal profession. This may include errors in legal strategy, missed deadlines, failure to communicate with the client, or inadequate legal research.

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The Supreme Court of Texas has issued an opinion in USA Lending Group, Inc. v. Winstead, P.C., 669 S.W.3d 195 (2023). In this case the client sued its former law firm for failing to request damages in a default judgment motion. USA Lending hired the law firm to sue its former employee for breach of fiduciary duty. The law firm obtained a default judgment but did not seek an award of damages against the former employee of USA Lending. USA Lending sued the law firm for malpractice alleging that the Law Firm breached the duty of care by failing to include a damages claim in the default motion. The law firm moved to dismiss. The trial court denied the motion to dismiss but the Appellate Court reversed that decision on the ground that USA could not prove causation or collectability. The Supreme Court of Texas, in turn, reversed that decision and reinstated the complaint.

USA Lending provided an affidavit from its CEO that it instructed the law firm to seek damages and an affidavit from an expert witness, a former judge, who opinion that the request for damages would have been granted. A second expert opinion that the judgment could have been collected. The Supreme Court held that the affidavits of USA Lending created a question of fact that could not be resolved on a motion to dismiss and held that the case would be remanded for trial. The court stated:

The motion to dismiss stage is not a battle of evidence; it is the clearing of an initial hurdle.[39] The Act does not select for plaintiffs certain to succeed; it screens out plaintiffs certain to fail—those who cannot support their claims with clear and specific evidence.[40]  Because USA Lending adduced prima facie evidence to support its claim for legal malpractice, the court of appeals erred in ordering the case dismissed. Accordingly, we reverse the judgment of the court of appeals and remand the case to the trial court.

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In Julio Chicas v. Christopher J. Cassar, et al, No. 2023 NY Slip Op 00202, Appellate Division of the Supreme Court of New York, Second Department, the plaintiff sued for malpractice claiming that the lawyer defendants failed to sue a tortfeasor. The case was dismissed at the trial level, but the plaintiff successfully appealed. The reasoning:

Here, the defendants failed to establish, prima facie, that the plaintiff had no actual or ascertainable damages. “The defendant must affirmatively demonstrate the absence of one of the elements of legal malpractice” (EDJ Realty, Inc. v Siegel, 202 AD3d 1059, 1060). The complaint alleged that the damages included the failure to pursue SUM benefits, as well as the failure to pursue recovery against the alleged tortfeasor. Since it was alleged herein, inter alia, that the defendants’ legal malpractice prevented the plaintiff from obtaining a judgment against the alleged tortfeasor, the defendants had the burden of affirmatively demonstrating that the plaintiff would not have prevailed against the alleged tortfeasor or that the alleged tortfeasor did not have personal assets such that his motorist insurance policy limit that was recovered in the amount of $50,000, was the maximum judgment that could have been obtained from him (see id. at 1060). The defendants failed to do so. Accordingly, the Supreme Court should have denied that branch of the defendants’ motion which was for summary judgment dismissing the complaint.

Comment: the court is saying there may have been a possible recovery against the tortfeasor who was not pursued. This may or may not be true. The litigation is in its early stages and we cannot predict whether or not the plaintiff can prove this claim. (If the possible tortfeasor was bankrupt or insolvent, there is no possible recovery.).

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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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