Articles Posted in Legal Malpractice

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This is a legal malpractice case from Mississippi where the plaintiff hired an attorney, Omar Nelson, to bring a wrongful death action against the makers of Plavix. The plaintiff alleged that she asked Nelson to handle the case when he was an associate with the law firm, Sweet and Freese. Nelson declined and recommended other counsel. Later, when Nelson left Sweet and Freese, he began working on the case again. Eventually, Nelson obtained a settlement of $280,000 for the plaintiff. The settlement was approved by the court.

Plaintiff’s legal malpractice theory was that Nelson had not obtained a sufficient settlement for the case and that other lawyers would have obtained more. This theory, without further evidence of negligence such as a failure to take discovery or obtain evidence, is very weak. It is almost entirely speculative. How are we to know why a different attorney would have obtained more money than the attorney who actually handled the case?

Plaintiff’s expert was Freese who testified that had he handled the case he would have obtained more money for the plaintiff.

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Source: MCZ DEVELOPMENT CORP. v. DICKINSON WRIGHT, PLLC, Dist. Court, ND Illinois 2015 – Google Scholar

This case involves allegations that the law firm (Dickinson Wright) committed legal malpractice in connection with work on a proposed “Indian casino project” in Oklahoma.

During the representation Plaintiffs requested that the law firm “to provide an opinion on any issues that might preclude the proposed gaming project from successfully moving forward.”

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Source: Janousek v. KATTEN MUCHIN ROSENMAN LLP, Ill: Appellate Court, 1st Dist., 2nd Div. 2015 – Google Scholar

Illinois has a two-year statute of limitations period which applies to legal malpractice claims. Here, the Appellate Court held that the two-year statute operated to bar claims against a law firm that allegedly assisted its client in a breach of fiduciary duty.

Facts:

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Source: LOANVEST I, LLC v. Utrecht, 235 Cal. App. 4th 496 – Cal: Court of Appeal, 1st Appellate Dist., 3rd Div. 2015 – Google Scholar

The plaintiff sued its former attorneys for legal malpractice. The attorneys then moved to dismiss under the provisions of California’s Anti-SLAPP statute. The Anti-SLAPP statute allows the defendant to file a motion to dismiss where the complaint arises from activity exercising the rights of petition and free speech. The trial court agreed and dismissed the lawsuit.

On appeal, the lawsuit was reinstated by the California Court of Appeals.

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Source: Davidson v. GUREWITZ, Ill: Appellate Court, 2nd Dist. 2015 – Google Scholar

In recent years, there have been several attempts by dissatisfied family law litigants to sue lawyers appointed by the courts to serve various roles. This case involves an attempt to sue a court-appointed child’s representative for legal malpractice. This is now the third decision holding that the child’s representative has absolute immunity from a legal malpractice lawsuit. The court reasoned that the child’s representative was appointed by the court and was therefore immune.

The policy reason to grant absolute immunity is to protect the court’s ability to appoint a child’s representative. The child’s representative is appointed by statute and must confer with the child and make evidence based legal arguments on behalf of the child. Were the court to allow everyone who lost a custody case to sue the child’s representative, so the theory goes, it would make it difficult to have a child’s representative appointed.  Slippery Slope arguments are usually rejected by courts because every class of defendant in every case has, at one time or another, made such an argument. Prior decisions in Illinois rejecting similar claims are Vlastelica v. Brend, 2011 IL App (1st) 102587 and Cooney v. Rossiter, 583 F.3d 967 (7th Cir. 2009).

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A legal malpractice case requires careful analysis. Even if the lawyer was negligent in some way, did the negligence make any difference in the ultimate outcome? To evaluate a legal malpractice case, you must evaluate the underlying case as well.

Rodi v. Horstman, 2015 IL App (1st) 142787 is such a case. Rodi hired Horstman to handle an appeal of an unfavorable decision. It is undisputed that Horstman filed the notice of appeal one day late and the Appellate Court held that it had no jurisdiction. Rodi then sued Horstman for legal malpractice, but the trial court granted summary judgment for Horstman and the Appellate Court affirmed. The reason is that even if Horstman had timely filed the notice of appeal the appeal was a loser.

The Underlying Case:

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In most states, a former client of a criminal defense lawyer cannot sue for legal malpractice unless he can establish “actual innocence.” The Actual Innocence rule bars almost all legal malpractice claims against criminal defense lawyers. The purported basis for the rule is that the guilty person should not profit from his crimes. Scholars have criticized the rule as poorly reasoned and lacking in justification. One criticism of the rule is that it unfairly differentiates between civil lawyers and criminal lawyers. A civil litigator who breaches a duty to a client, causing the client to lose an underlying case, is not immune from suit. The client suing the civil litigator is not required to prove actual innocence or anything like it.

This week the Supreme Court of Kansas abolished the Actual Innocence rule. Mashaney v. Board of Indigents’ Defense Services. In Mashaney, the plaintiff claimed that he was wrongly convicted of child sexual assault due to the ineffective assistance of his court-appointed lawyers. The opinion does not furnish many details but it appears that the case against Mashaney arose when the mother of Mashaney’s five year old daughter made allegations that Mashaney had sexually abused his daughter.

Mashaney was convicted in 2004 and sentenced to 442 months of imprisonment. He steadfastly maintained his innocence. In 2011, Mashaney entered into an Alford plea under which he pleaded guilty to two counts of attempted aggravated battery and one count of aggravated endangering a child. The State dropped the remaining charges and Mashaney was sentenced to 72 months imprisonment. Because he had already served more than 72 months, he was entitled to be released from prison.

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The case is Construction Systems, Inc. v. FagelHaber, LLC, 2015 IL App (1st) 141700. The plaintiff sued FagelHaber for failing to perfect a mechanic’s lien resulting in the subordination of that lien to a mortgagee’s lien. The legal malpractice claim is straightforward. The more interesting question was whether the law firm could defend on the ground that it settled a fee claim against the client before the legal malpractice claim was filed.

In 2003, Construction Systems retained FagelHaber to serve mechanics lien relating to a real estate development. FagelHaber allegedly failed to perfect the lien because it failed to serve the lien on the Cosmopolitan Bank, which held a mortgage on the property. In January 2004, FagelHaber filed an appearance for Construction Systems in a lawsuit dealing with the mechanics’ liens. (The mechanics’ lien litigation).

In August 2004, FagelHaber withdrew as counsel for Construction Systems in the underlying mechanic’s lien litigation. In November 2004, FagelHaber and Construction Systems entered into a settlement agreement under which Construction Systems … “does hereby fully remise, release and forever discharge FagelHaber..of and from any and all claims, demands, actions, causes of action, suits, … existing at the date hereof or hereafter arising, both known and unknown, forseeable and unforseeable, …arising from or in connection with any matter,… including, without limitation, and Claims in connection with the legal services provided by FagelHaber to [Construction Systems] or the Indebtedness.”

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One common story that I have observed over the years is that legal malpractice insurers frequently deny coverage on the basis that the attorney knew of his own error (or the possibility of a claim) prior to the policy period. The recently decided case, Synergy Law Group, LLC v. Ironshore Specialty Insurance Company, 2015 IL App (1st) 142070-U, is another unfortunate chapter in that story.

Legal malpractice policies are issued on a claims made basis. That means that the insurer agrees to cover any claims made during the policy period even if those claims result from an act that occurred before the policy period. However, the insurance policy always contains a clause that provides that there is no coverage if the Insured “had knowledge of the circumstances that gave rise to the Claim and reason to believe that a Claim might result” before the policy period.

In 2006, the attorney drafted a shareholders agreement for a company, GA, Inc. The agreement established a formula for repurchasing shares if either shareholder left the company. In 2008, Rena Zito, the minority (20%) shareholder left the company. GA exercised its option to repurchase her shares. GA offered the minority shareholder $56,335.47 for all of her shares. The minority shareholder responded that “under the formula established in the shareholders agreement, GA, Inc., owed [the minority shareholder] $56,335.47 per share” for a total of $1,126,707.40. Opinion ¶ 7.

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This is an unpublished decision of the Illinois Appellate Court, captioned Ilija Vasilj v. Harvey Teichman, 2015 IL App (1st) 133955-U. The Appellate court affirmed a decision to grant summary judgment to the lawyer on statute of limitations grounds.

The complaint alleged that in 2007 Vasilj purchased the first floor of a building located at 2650 West Belden in Chicago, Illinois. The first floor was undeveloped, but the second and third floors had existing condominiums. Vasilj intended to develop 12 condominiums for resale. At the time of the purchase, “the second and third floors of the building were part of the existing Brau Haus Condominium Association … and subject to the Declaration of Condominium Ownership. The declaration did not include the first floor of the building as a part of the condominiums. The association, in an attempt to incorporate the first floor, passed the first amendment to the declaration which included the first floor in the association. However, the association did not record a new plat of survey reflecting the changes. The failure to record a new plat survey resulted in a defective title to Vasilj’s property. ¶ 6.

Vasilj alleged that he retained Teichman to represent him in the purchase of the Belden property and that “prior to closing, Teichman did not review the amendment to the declaration, nor did he know that a new plat survey was never filed and recorded with the amendment. The resulting defective title to Vasilj’s property would prohibit him from selling the condominiums that he would later develop. Unaware of the defective title, Vasilj closed on the Belden property and began development of the condominiums.” ¶ 7.

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