The plaintiff sued a lawyer for legal malpractice. The lawyer failed to timely report the legal malpractice claim to his carrier and the claim was denied. The plaintiff then sued the insurer directly with no success for the same reason. Because the lawyer failed to report the claim to the insurer, the claim for coverage was denied.
Do not ever retain an attorney who does not have insurance.
It is very common that someone will come into my office and explain that he is a victim of legal malpractice. Often, for reasons I don’t understand, the person waits more than two years after the underlying judgment before they contact me. By waiting this long, the statute of limitations has run and there is absolutely nothing we can do to help the plaintiff.
In Illinois the plaintiff has two years to file suit from whenever the plaintiff discovers the injury. Where there is litigation, discovery occurs when the underlying case reaches judgment.
In Belden v. Emmerman, the Illinois Appellate Court held that the statute of limitations begins to run when there is an adverse judgment against the injured party. The defendant moved to dismiss and the plaintiff argued that, because he filed an appeal of the adverse judgment, the statute of limitations did not start to run until the appeal was decided.
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.
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…”
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.
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.”
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:
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.
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).
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:
Chicago Legal Malpractice Lawyer Blog