A former divorce client who was held in criminal contempt in the divorce case sued his former lawyers for legal malpractice. His claim was dismissed and the Court of Appeals of California, Second District, affirmed the conviction. The case is Parchin v. Feinberg Mindel Brandt and Klein B295202, dated February 5, 2020. The explanation:
Pavel Parchin appeals from a judgment following an order by the trial court sustaining the demurrer of respondents Feinberg Mindel Brandt & Klein and John Chason (Respondents) without leave to amend. Parchin alleged that Respondents were negligent in representing him in connection with a criminal contempt proceeding in his marital dissolution action. Parchin was convicted of contempt for violating a judgment ordering the payment of spousal support. The trial court sustained the demurrer on the ground that Parchin failed to plead actual innocence and could not allege causation.
We affirm. Parchin was convicted of criminal contempt. An action for legal malpractice in a criminal proceeding requires a plaintiff to plead and prove actual innocence. Parchin’s claimed basis for his innocence—that the judgment underlying his contempt conviction was voided by a subsequent court order—is legally untenable, as confirmed by a prior appellate ruling in the dissolution action.
The case is captioned Patterson v. Kohn, 2017 AP 1524, decided by the Wisconsin Court of Appeals. Patterson sued his former criminal defense lawyer for failing to properly investigate his defense (self-defense to a reckless homicide charge), and interview witnesses. Patterson was unable to obtain an expert witness to support his claims and his case was dismissed. The dismissal was affirmed on appeal. The Court of Appeals rejected Patterson’s argument that the breach did not require an expert witness.
¶10 Patterson relies on the exceptions to the rule requiring expert testimony by arguing that his “legal malpractice claim can be decided as a matter of law based on undisputed and conceded facts, expert testimony is unnecessary in this case” (emphasis omitted). Patterson’s argument centers entirely on what he considers to be Kohn’s negligence. Specifically, Patterson argues that Kohn negligently failed to follow “instructions” by failing to investigate certain facts, circumstances, and witnesses to support Patterson’s self-defense theory, and that the negligence led to his conviction. We do not agree with Patterson that this cause of action involves only a failure to follow instructions. Patterson’s legal malpractice cause of action implicates the applicable standard of care attorneys owe their clients, statutes and case law regarding criminal procedure, and the judgment criminal attorneys exercise on a case-by-case basis. See Pierce v. Colwell, 209 Wis. 2d 355, 362, 563 N.W.2d 166 (Ct. App. 1997) (“[E]xpert testimony will generally be required to satisfy this standard of care as to those matters which fall outside the area of common knowledge and lay comprehension.”). We conclude that under the facts of this case, Patterson was required to present expert testimony to prove his claim that Kohn’s alleged negligence caused his injury or damage. A lay person would not understand the evidence necessary for a successful (from Patterson’s standpoint) McMorris hearing, the discovery and investigation process in a criminal matter, or the level of discretion afforded to criminal defense attorneys.
¶11 Moreover, Patterson ignores a key requirement in legal malpractice actions stemming from an attorney’s representation in a criminal matter— Patterson’s claim requires proof of actual innocence. See Hicks v. Nunnery, 2002 WI App 87, ¶¶32-50, 253 Wis. 2d 721, 643 N.W.2d 809 (legal malpractice claim in criminal context requires proof of actual innocence). Put another way, Patterson has not made any showing that Kohn’s actions or inactions caused him harm. Patterson’s contention is that, if certain persons had testified to certain facts in his criminal case, he would not have been convicted. Patterson names those persons in his complaint. However, Patterson proffers no admissible evidence in the record to support his contention that those persons would have, if called, testified as Patterson contends.
One defense to a legal malpractice case is that the plaintiff could never have collected any money from the defendant in the underlying case. This defense is rarely asserted, but it can be very effective. In a malpractice case, you must prove what the outcome of the underlying case would have been absent negligence. This type of proof is imperfect because some speculation is involved.
For example, client sues an entity that is insolvent. Client’s lawyer makes an error that causes the client to lose the case (such as missing the statute of limitations). Client sues his former lawyer. Under the insolvency defense, client loses the case because he could not have collected anyway and thus the lawyer did not “cause” the loss of his recovery.
In Ewing v. Westport Insurance Company, CA – 19-551, the court rejected the insolvency defense. The opinion explains that the defense of insolvency was not proven:
The case is captioned In re Gary K. Davidson, 2017 PR 00099. There were two charges of misconduct: (a) failing to disclose a fee arrangement with a land surveyor; and (b) falsely certifying compliance with MCLE requirements. The first charge was not proven but the second charge was proven and a three-month suspension was recommended. The take-away from this is that Illinois will punish a false MCLE certification. The Panel noted that few reports by lawyers are audited so, therefore, there should be punishment if the lawyer makes a false representation.
The case is Iliescu v. Hale Lane Peek Dennison and Howard, No 76146, Supreme Court of Nevada.This is a complicated case and factual scenario that does often come up in legal malpractice cases. It goes like this:
A. Your client loses a ruling in a trial court in the underlying case.
B. Your client fires you. (Next, they sue you for malpractice).
In Sherman v. Ellis, K18CC-006-009, the Superior Court of Delaware considered a legal malpractice action filed by a former client against the attorney who had drafted his prenuptial agreement. The case is unusual because the divorce court ruled in Sherman’s favor and held that the prenuptial agreement was valid and binding. Despite having won the underlying litigation, Sherman sued his lawyer and alleged that the lawyer should have included an additional provision in the prenuptial agreement. Had the lawyer included this provision, according to Sherman, his ex-wife would not have challenged the prenuptial agreement in the divorce case and he would have not had to incur legal fees defending the prenup.
Comment: once you read those facts, you should realize that this was a very unsympathetic case for the plaintiff. He received good legal work from his lawyer and won his case and he still sued.
The Delaware court in a well-considered published opinion dismissed the legal malpractice case beause there was no evidence that the ex-wife would have agreed to the so-called Silver Bullet provision.
In Herren v. Armenta, 1-CA-CV-18-0381, the plaintiff sued her former lawyers alleging that they committed legal malpractice when the represented her in another case (the underlying case). In the underlying case, Tonto Supply, Inc., sued Herren for breach of contract and other torts. Herren alleged that her lawyers were negligent because they failed to timely respond to requests to admit and to several motions for summary judgment, resulting in a judgment against her.
This case presented a common problem with legal malpractice actions – would Herren have won the underlying case if the lawyers had responded in timely fashion?
In the malpractice case, Herren had the burden to prove that the lawyer’s negligence was the cause of her loss. She was unable to meet that standard, despite the fact that she hired an expert. The court explains its decision to affirm the dismissal of the malpractice case:
Sammet v. Helline is an unpublished decision of the Court of Appeals of Kentucky. The case number is 2018-CA-1033. The story is familiar: a divorce lawyer sued for unpaid legal fees and received a legal malpractice counterclaim in return.
Here, the lawyer prevailed as the former client was unable to introduce any evidence of economic damages. Summary judgment for the lawyer was affirmed. The explanation:
We further note that Denise’s deposition and additional answers and responses to written discovery requests are largely irrelevant to Beth’s counterclaims, even though she claims denial of access to these precludes a grant of summary judgment. The standard to prove legal malpractice is well-settled.
Zander v. Carlson and the Illinois Fraternal Order of Police, 2019 IL App (1st) 181868, is a legal malpractice opinion which holds that a union member who retains a union appointed attorney to represent him in challenging an employment action, cannot file a malpractice claim because filing such a claim would circumvent the collective bargaining agreement.
The facts and procedural history are set forth as follows:
¶ 4 Under the Illinois Municipal Code, a police officer facing discharge is entitled to a hearing before the local Board of Fire and Police Commissioners (police board), unless a collective bargaining agreement between the municipality and the officer’s union provides for arbitration of such disputes. See 65 ILCS 5/10-2.1-17 (West 2018). The collective bargaining agreement between the Village and the FOP provides that an officer may elect to challenge his discharge either before the police board or through the agreement’s ordinary grievance-arbitration procedure. On Carlson’s advice, Zander elected to proceed via arbitration. After a two-day hearing, the arbitrator upheld the decision to terminate Zander’s employment.
The case, Nancy Setterquist v. Law Offices of Ted D. Billbe, P.C., N0. 18-35880, is an unpublished decision of the Ninth Circuit that raises important issues. The case is a divorce malpractice case. Setterquist alleged that her lawyer allowed the court to enter an erroneous order. Based on the text of that order, her ex-husband filed a post-decree claim against her for maintenance and was able to recover. The facts are not summarized well in the opinion, unfortunately, leaving me with questions about what happened and why it happened.
The defense strategy was to move to dismiss on the basis that Setterquist engaged a new lawyer post-decree. The defense argued in a motion to dismiss that successor counsel could have corrected the error made by Billbe and defeated ex-husband’s claims.
The district court dismissed the case on the basis that Setterquist could not allege proximate causation because she employed successor counsel.