Articles Posted in Legal Malpractice

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The plaintiff, Cynthia O’Neal, brought a legal malpractice claim against her former lawyers. O’Neal, an owner of a restaurant chain that fell on hard times, alleged that her former lawyers had a conflict of interest when the represented her company and the opposing party in an assumption of a lease. The court rejected her claim on the grounds that she was unable to establish proximate causation.

In my experience, proximate causation can be difficult to prove. Lawyers make mistakes. Sometimes those mistakes breach the duty of care. The plaintiff must tie the negligent act to the damages suffered by plaintiff and come up with a plausible theory as to how the lawyers made things worse and caused the damage.

One area where it is very difficult to prove proximate causation is a legal malpractice claim in the foreclosure setting. The lawyer who defends the foreclosure may miss a deadline or make a legal error. However, that lawyer did not cause the default and did not proximately cause any damages.

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It is always a risk to talk to the media. Here, in a pithy opinion, The New York Appellate Division, First Department upheld a legal malpractice claim against a law firm. “Plaintiff alleges that he would not have lost his contractual right to certain deferred compensation if his attorneys had not acted negligently in speaking to the Wall Street Journal, in violation of the non-disparagement provision of the contract.” The court further commented that “neither the arbitration award nor the subsequent opinions submitted by defendants unequivocally contract plaintiff’s claim…”

Source: Barr v. LIDDLE & ROBINSON, LLP, 2016 NY Slip Op 744 – NY: Appellate Div., 1st Dept. 2016 – Google Scholar

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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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