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The statute of limitations often defeats legal malpractice claims that might otherwise have some merit. The statute of limitations is the best possible defense a lawyer can have. The statute of limitations differs from state to state. As a client, the important thing to remember is to get moving as quickly as possible once the statute expires. In Titshaw v. Geer, Georgia Court of Appeals 2023, May 24, 2023,  the plaintiff came to believe that his lawyer had erroneously advised him to file for bankruptcy. Unfortunately he waited after four years to file suit so his lawsuit was dismissed pursuant to the Georgia statute of limitations.

If you think you may have a claim, talk to a malpractice attorney as soon as possible. Waiting too long only benefits the lawyer defendant.

Ed Clinton, Jr.

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Thanks to Lawline for hosting this program.

 

https://www.lawline.com/course/avoiding-malpractice-in-family-law-matters?utm_medium=email&utm_source=transactional&utm_campaign=course-live

The program discusses typical malpractice claims made against family law attorneys. Family law attorneys, unfortunately, are often involved in highly contentious matters with emotional parties. That is a breeding ground for claims.

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Frequently we get calls from a former client of an attorney who believes that legal malpractice may have occurred. Please note that if a case is voluntarily dismissed, the client has one year to refile the case. 735 ILCS 5/2-1009. Until that time period has expired, there is no legal malpractice case because the mistake or error can be corrected by the attorney or another attorney. Often a dismissal for want of prosecution is without prejudice and is not final so, again, that is not malpractice.  The question we ask is “Can the alleged error be cured?” If the problem can be cured, there is no malpractice.

Ed Clinton, Jr.

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This is an unpublished case which had an interesting result.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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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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Source: PARALLEL NETWORKS, LLC v. JENNER & BLOCK LLP, Tex: Court of Appeals, 5th Dist. 2015 – Google Scholar

This is a decision affirming an arbitrator’s award of legal fees to Jenner & Block. The case is a typical attorney-client fee dispute, but here the Court enforced the parties’ arbitration clause.

The fee dispute arose out of patent litigation handled by Jenner & Block for Parallel Networks. Jenner & Block ultimately withdrew from the litigation after locating successor counsel for Parallel Networks. Jenner & Block cited the client’s failure to pay invoices on a timely basis and its lack of economic resources to continue the litigation.

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Source: IN THE MATTER OF ESTATE OF AMUNDSON, 2015 ND 253 – ND: Supreme Court 2015 – Google Scholar

This appeal dealt with the issue of fees charged to probate estates. The North Dakota Supreme Court affirmed a judgement against a lawyer that he repay $95,000 in legal fees that were excessive.

After Donald Amundson passed away in 2011, two executors were appointed. Donald’s will provided that all of his property was to pass to the Donald G. Amundson Trust. The trial court found that one of the co-executors breached a fiduciary duty owed to the estate by paying John Widdel, Jr.’s fee bills without questioning them. The District Court ordered Widdel to repay $95,000 to the Estate.

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Source: Sheth v. Premier Bank, Dist. Court, WD Wisconsin 2015 – Google Scholar

The plaintiff in this case, Kamlesh Sheth, lost a state court foreclosure case. Sheth then sued a law firm for legal malpractice and the bank that obtained the judgment against him for fraud and other torts.

Sheth claimed that the defendant bank had agreed not to pursue a deficiency judgment against Sheth. Sheth cited an agreement between himself and the bank and drafted by the defendant law firm under which the Bank waived the right to pursue the deficiency if Sheth obtained a buyer for the property and the sales price was $1,100,000 and the buyer agreed to pay off the mortgage note. Sheth claimed that he met his obligations under the agreement and that the Bank had no right to seek a deficiency judgment.

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Source: LAMET v. Levin, Ill: Appellate Court, 1st Dist., 3rd Div. 2015 – Google Scholar

This is a legal malpractice case that the Illinois court held was barred by the six-year statute of repose and also by the two-year statute of limitations. Lamet hired Levin in 1994 to represent him in a dispute with his landlord. Lamet’s landlord claimed that Lamet owed $34,000. Levin fought the litigation for 17 years. (Levin claimed that he was being charged for more square feet than he actually rented). Ultimately, in 2011, Levin recommended that the litigation be settled for the sum of $150,000.

Lamet then sued Levin for legal malpractice “essentially asserting that Levin should have advised him in 1994 to accede to his landlord’s demands and forgo defense of the lawsuit.”

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