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In this case, Eskridge v. Fletcher, Court of Appeals of Washington, Division One, No. 78013-1-l, a medical doctor sued the lawyers who unsuccessfully represented him in his license revocation proceeding. The record indicated that there was substantial evidence that Dr. Eskridge had acted inappropriately towards other doctors and patients. As a result, the hospital revoked his admission privileges. After an internal review, Dr. Eskridge’s privileges were revoked. On the advice of the defendant lawyers, Eskridge elected not to appeal that determination.

The malpractice lawsuit alleged that, had the appeal been filed, it would have been successful and Eskridge would have retained his privileges.

The trial court disagreed. The Court of Appeals affirmed, holding that he could not show by clear and convincing evidence (the standard used in the medical revocation proceeding) that, but for the error by the lawyer, he would have prevailed in his appeal. The discussion follows:

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On June 20, 2019, the Illinois Supreme Court decided an important case, Nichols v. Fahrenkamp, 2019 IL 123990 in which it held that a guardian ad litem (a lawyer appointed by a court to represent the interests of a minor child in a divorce case) is immune from suit for conduct related to his appointment.

There have been prior decisions granting immunity where the guardian was sued by one or more parents. This case is different because it expands the immunity significantly.

Nichols essentially alleged that Fahrenkamp did not prevent Nichols’ mother from misusing money that belonged to Nichols. The court relied upon a review of the Illinois Probate Act and the Illinois Dissolution of Marriage Act as well as cases from other states:

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A guardian ad litem is a lawyer who is appointed to represent the interests of a minor child in a divorce case. Often a divorce litigant comes to believe that the guardian ad litem is the cause of their problems. No matter how upset you may be, you cannot sue the guardian ad litem for legal malpractice. In Dubinsky v. Reich, 201 A.3d 1153 (2019) the Appellate Court of Connecticut affirmed the dismissal of a complaint against a guardian ad litem. The explanation:

The conduct that forms the basis of the plaintiff’s underlying claims is Reich’s recommendation to the court of supervised visitation between the plaintiff and his minor child, as well as her recommendation against the use of coparenting counseling. Reich made these recommendations to the court while fulfilling her statutorily prescribed duties as guardian ad litem to the plaintiff’s minor child.[8]The plaintiff has 1158*1158 not pointed to any actions taken by Reich outside of her role as guardian ad litem.[9] Therefore, Reich is entitled to absolute immunity.

The plaintiff further argues that “[p]ublic policy requires that the trial court recognize that there is a limitation to the actions of a [guardian ad litem]” and that “[t]he grant of immunity allows unchecked abuses of power by a [guardian ad litem].” We disagree. Granting absolute immunity to guardians ad litem is not contrary to public policy.[10] There are sufficient procedural safeguards to protect against improper conduct by a guardian ad litem. Because a guardian ad litem is appointed by the court, the guardian ad litem is subject to the court’s oversight and discretion and may be removed by the court at any time, either sua sponte or upon motion of a party. See Carrubba v. Moskowitz, supra, 274 Conn. at 543, 877 A.2d 773….

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This is a legal malpractice action arising out of a real estate purchase. Viktoriya Bakcheva retained the Law Offices of Stein & Associates to represent her in the purchase of a condominium unit. She alleged that the lawyers did not properly investigate the transaction because the Unit at issue had a second floor above the first floor. The problem – the second floor was not as described in the condominium documents or the certificate of occupancy. (It would appear that a prior owner of the unit had added an additional floor to the unit without obtaining a permit or the permission of the condominium association. As one might imagine, the lawyers’ motion for summary judgment was denied. They appealed and did no better in the Appellate Division.

The explanation:

We agree with the Supreme Court that the defendants were not entitled to summary judgment dismissing the legal malpractice cause of action. Although the defendants established their prima facie entitlement to judgment as a matter of law, the plaintiff raised a triable issue of fact in opposition. Specifically, the plaintiff submitted evidence that she had informed the defendants, prior to the closing, that the main portion of the apartment was on the seventh floor of the building and that the apartment included a second level. According to the plaintiff, the defendants committed malpractice because they failed to recognize the illegality of the second level, since neither the certificate of occupancy nor the approved condominium offering plan authorized the existence of an eighth floor to the condominium (see id.).

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The case is pending in New York. A divorce firm sued its former client for fees. She promptly brought a legal malpractice claim. The trial court refused to dismiss the counterclaim. It held: “With respect to the proposed counterclaim for legal malpractice, defendant Ms. Parada alleges that as a result of plaintiff’s failure to complete certain tasks in the underlying divorce proceeding, Ms. Parada was forced to enter into an unfavorable settlement agreement with her ex-husband. Affirmation of Peter Hanschke dated February 26, 2019, Exh. C, ¶ 22. Although plaintiff argues that Ms. Parada’s allegations are speculative and that she will not be able to show that plaintiff’s actions caused Ms. Parada to enter into this agreement, it cannot be said at this stage that the proposed counterclaim is palpably insufficient or completely devoid of merit so as to warrant denial of her motion to amend. Cruz v. Brown, 129 A.D.3d 455, 456 (1st Dep’t 2015). Further, Ms. Parada provided a reasonable excuse for her delay in asserting this claim as the underlying divorce proceeding finally settled in December 2018 and defendant moved promptly thereafter to amend her counterclaims.”

Comment: My point here is that it if you sue for fees, you should expect to litigate a malpractice counterclaim every now and then. I make no comment on the merits of the allegations, which do appear quite speculative and difficult to prove.

See Davidoff Hutcher & Citron v. Maria Del Pilar Nava Parada, 2019 NY Slip Op 31121(U).

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One issue that arises frequently is whether an agreement between two lawyers to share fees on a case is enforceable.

Rule 1.5(e) provides that:

(e) A division of a fee between lawyers who are not in the same firm may be made only if:

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Disciplinary investigations can be frustrating and time-consuming. Responding poorly to one can have serious consequences in that the punishment is often increased for those who do not acknowledge that they made an error. In Debra Cohen v. Patricia King, AC 40834 Connecticut Court of Appeals, Debra Cohen attempted to bring a defamation complaint against the disciplinary counsel who signed a disciplinary complaint against her. Ms. King moved to dismiss on the basis of the litigation privilege – which generally provides immunity for in-court statements and testimony. The trial court granted the motion to dismiss and the Court of Appeals affirmed. It noted that “statements made in a grievance proceeding were shielded by absolute immunity” and that the act of filing a grievance was also protected. This is an excellent and well-considered opinion. Witnesses have to be able to speak freely in disciplinary proceedings. Lawyers should not be able to use the threat of litigation to silence their critics or former clients.

Ed Clinton, Jr.

 

http://www.clintonlaw.net

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It is generally well-settled that a party cannot sue the laywer who represents an opposing party. In the case Hitchcock v. USAA Casualty Insurance Company, (M.D. Florida) (6:18-cv-1986-ORL-28TBS), Hitchcock sued USAA after a she became subject to a large judgment in a personal injury action. She alleged that USAA should have settled the case within the policy limits. What makes her case interesting is that she also tried to sue USAA’s lawyers. The court dismissed that action on the ground that there was no attorney-client relationship between Hitchcock and the law firm. Nor was Hitchcock an intended third-party beneficiary of the attorney-client relationship.

http://www.clintonlaw.net

Ed Clinton, Jr.

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The Iowa court of appeals decided a case, P&C Sierra v. John M. Carroll, 18-0826, which illustrates a common problem in the legal malpractice jurisprudence. Here, the plaintiff sold real estate to a third party, Richard Brown. According to the plaintiffs, their lawyer Mr. Carroll allegedly forgot to record the real estate contract and the mortgage. The owner of the property then borrowed money from a bank which did record a mortgage. This meant that the interests of the plaintiffs were junior to the interest of the bank. The transaction occurred in 2008.

Plaintiff argued that they were injured in 2012 when Brown stopped paying on their installment note. The court disagreed and found that the plaintiffs were aware, as early as 2009, that there was a problem with their security interest in the property. Therefore, the lawsuit, filed in 2017, was untimely. Iowa has a five-year statute of limitations for legal malpractice claims.

This is a classic case where a plaintiff waited too long to file suit. Once the plaintiff realized that the lawyer may have made an error, the plaintiff discovered the injury and the statute of limitations began to run.

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