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Source: HARBORD v. SAFEWAY, INC., Wash: Court of Appeals, 1st Div. 2017 – Google Scholar

The plaintiff claimed that her lawyer committed malpractice by agreeing to the entry of a stipulated protective order. The lawyer had brought a wrongful employment termination case against Safeway, Inc. Plaintiff did not prevail in that action and sued her lawyer for malpractice. The court held that the plaintiff could not establish proximate causation in that the entry of a protective order did not cause her to lose the underlying case.

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Sandler was a plaintiff in an underlying medical malpractice action in which he alleged that he received substandard care at Advocate Good Samaritan Hospital. Advocate retained a standard of care witness who testified against him. Sandler, even though he won the underlying case, sued Advocate’s expert on the ground that the expert failed to diagnose his brain injury. The trial court dismissed the case on the ground that there was no doctor-patient relationship and no duty of care. The Appellate Court affirmed, but on different reasoning. The Appellate Court reasoned that a statement by an opposing expert in a report or deposition was absolutely privileged. For many years courts have recognized that a lay witness is immune from liability for his pertinent testimony at trial. The relevant caselaw, quoted in Sandler, is as follows: “As a general rule, witnesses enjoy an absolute privilege from civil suit for statements made during judicial proceedings. Ritchey v. Maksin, 71 Ill. 2d 470, 476 (1978). The purpose of the rule is to preserve the integrity of the judicial process by encouraging full and frank testimony. Layne v. Builders Plumbing Supply Co.,210 Ill. App. 3d 966, 969 (1991). ” Sandler ¶ 26.

Source: Sandler v. Sweet, 2017 IL App (1st) 163313 – Ill: Appellate Court, 1st Dist., 6th Div. 2017 – Google Scholar

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The plaintiff claimed that he missed the closing date on three real estate transactions because his lawyers did not give notice. The lawyers insisted that (a) the plaintiff fired them long before closing and (b) they notified plaintiff of the new closing dates.

The court held the case barred by the three-year statute of limitations in New Jersey. The explanation:

Here, plaintiff, a New Jersey resident, brings a legal malpractice claim against Kane and Berger. The applicable statute of limitations for a claim of legal malpractice is three years in New York (CPLR 214[6]) and six years in New Jersey (McGrogan v Till, 167 NJ 414, 426, 771 A2d 1187 [2001]). Therefore, New York’s three-year statute of limitations period applies.

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The Supreme Court of Washington has held that a client who sues his former attorney for legal malpractice may not allege that the lawyer’s withdrawal from the underlying case was improper if that withdrawal was approved by a judge.

The court succinctly puts the issue this way:

In this case, former clients are suing their attorneys for legal malpractice based, in part, on the attorneys’ withdrawal from a prior case. But the attorneys obtained that withdrawal by court order. In the original case, the former clients appealed the court’s order approving withdrawal, and that appeal was rejected. The attorneys thus argue that collateral estoppel applies to bar a malpractice action based on their withdrawal. We agree. We hold that the fact of withdrawal by court order in an earlier proceeding is dispositive in a later malpractice suit against the attorney. Although other malpractice complaints unrelated to the withdrawal would not be precluded, a client cannot relitigate whether the attorney’s withdrawal was proper. If we are to have rules permitting attorney withdrawal, we must allow attorneys to have confidence in those rules. We, therefore, reverse the Court of Appeals.

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One of the more vexing issues in the area of legal malpractice is what happens when the plaintiff settles the underlying case. In most states, the plaintiff would have to prove that but for the negligence of the defendant attorney, he would have obtained a better financial result in the underlying case. North Carolina, however, holds that the decision to settle the underlying case gives the negligent lawyer a complete defense to the legal malpractice action. This is an unpublished decision, but it is worth reviewing because it illustrates how the decision to settle the underlying case protects negligent attorneys.

The plaintiff alleged that the lawyers failed to properly serve a breach of contract lawsuit.  The negligence alleged, if true, is fairly shocking:

On 5 May 2006, the Horne defendants filed a complaint against the Hill defendants in Pitt County Superior Court alleging breach of contract. However, the Horne defendants never served the Hill defendants with a summons or a copy of the complaint, the action was discontinued, and plaintiff was never informed about the status of the action. When plaintiff emailed the Horne defendants on 23 October 2006 to inquire about its status, defendant Horne II responded:

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In Cook County, if your case goes to trial, you need to bring a court reporter and get a transcript of the trial. If you don’t’ have one, it is very difficult to appeal.

We were recently confronted with a family law trial where there is no transcript and no record of what exhibits were submitted. An appeal involves an argument that the trial court made an error. How can you argue that there was an error when there was no record of what happened? It becomes almost impossible.  Illinois Supreme Court Rule 321 provides:

The record on appeal shall consist of the judgment appealed from, the notice of appeal, and the entire original common law record, unless the parties stipulate for, or the trial court, after notice and hearing, or the reviewing court, orders less. The common law record includes every document filed and judgment and order entered in the cause and any documentary exhibits offered and filed by any party. Upon motion the reviewing court may order that other exhibits be included in the record. The record on appeal shall also include any report of proceedings prepared in accordance with Rule 323. There is no distinction between the common law record and the report of proceedings for the purpose of determining what is properly before the reviewing court.

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West Virginia has suspended an attorney for 30 days for failing to file a client’s amended habeas corpus petition on time. This is another case in which disciplinary authorities have prosecuted a negligence case. The attorney was found to have violated Rule 1.3 (failing to act with reasonable diligence) and Rule 1.4(a)(3) (failing to keep the client reasonably informed about the status of the matter); and Rule 8.4(d) (conduct prejudicial to the administration of justice).

The record indicated that the lawyer was appointed to represent a pro se prisoner and that the lawyer eventually obtained leave of court to file the petition after it was due.

Source: Lawyer Disciplinary Board v. Palmer, W Va: Supreme Court of Appeals 2017 – Google Scholar

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This issue comes up fairly frequently and almost all of the courts which have considered it have answered it the exact same way. An owner of a unit of a condominium does not have standing to sue the attorney for the condominium association.

The lawyer for the association is responsible to the association’s board of directors, not the unit owners. Allowing random unit owners to sue the lawyer for the association would place the lawyer in a situation where he would have to serve numerous “clients” all of whom have conflicting interests.

Source: GUEHL v. CARILLON HOUSE ASSN., INC., 2017 Ohio 5491 – Ohio: Court of Appeals, 2nd Appellate Dist. 2017 – Google Scholar

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This case (which is merely a complaint now that has not been proven) is a reminder that an attorney can be prosecuted by the ARDC for failing to safeguard client funds when he personally did not convert the funds. In this case, the allegations are that the lawyer’s partner converted funds and that the lawyer failed to prevent it. There are also allegations that suggest that the lawyer had reason to know that his partner might convert funds because he had converted funds in the past. The complaint alleges violations of Rule 1.15 and Rule 5.1(a). I have attached a link to the ARDC’s complaint. Again, the important thing to remember is that you can be prosecuted even if you did not convert funds.

Edward X. Clinton, Jr.

http://www.iardc.org/17PR0053CM.html

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This case is potentially important. It addresses a long-running issue – when a plaintiff must hire a legal malpractice expert. The Plaintiff must do so when expert testimony is needed to explain the standard of care to the jury. Here, the lawyer was hired to file a Medicaid application on behalf of an estate of a disabled person. The lawyer allegedly failed to file the application and the Estate was damaged. The trial court granted summary judgment on the basis that an expert was needed. The Appellate Court reversed because the only issue was an issue of fact: did the lawyer meet her obligations to file for Medicaid? The explanation of why the expert testimony was not necessary is particularly instructive and I quote it here:

There was an attorney-client relationship and a professional duty arising out of that relationship. The third element regarding the breach of duty is in dispute. The appellant did not provide expert testimony to substantiate her claim of legal malpractice regarding the third element. Flynn argues that Pollock’s errors were so obvious that expert testimony was not necessary to demonstrate that Pollock breached her duty. See, e.g., Friedland v. Djukic, 191 Ohio App.3d 278, 2010-Ohio-5777, 945 N.E.2d 1095, ¶ 27 (8th Dist.) (“Expert testimony is ordinarily required to establish the breach of duty in a legal malpractice case, unless the breach is within the ordinary knowledge of lay people”). We agree. Expert testimony as to the standard of care was not necessary because it is within the ordinary knowledge of lay people to determine whether there was a lack of communication between the parties and the lack of filing necessary paperwork could be a breach of duty. See, e.g., Phillips v. Courtney, 8th Dist. Cuyahoga No. 84232, 2004-Ohio-6015 (expert testimony as to the standard of care was not necessary because it was within the common knowledge of the jurors whether the attorney ensured that the application was filed within two years of the client’s termination of employment).

{¶14} Like in Phillips, it does not require expert testimony to determine whether Pollock’s potential lack of communication or failure to file the Medicaid application could constitute a breach of duty. Either Pollock has evidence that she performed the duties she promised the Lankford family, or she does not. It’s a question of fact not law. The Lankford family claims that Pollock did not fulfill her duties as outlined in their agreement. At this juncture of the case, the issue does not lie within the complexities of Medicaid law or estate planning. The issue deals with a question of whether Pollock took any action as it relates to what was agreed upon in the engagement letter. An ordinary layperson can make a simple determination as to whether Pollock did any work for the Lankfords.

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