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The Illinois Supreme Court has established a new rule that requires attorneys who do not have insurance to undertake an interactive test. The test is designed to make the lawyer more prepared to deal with ethics and risk management issues. The lawyer will earn 4 hours of MCLE credit. Furthermore, the ARDC cannot use the results of the self-assessment in any proceeding.

Source: Illinois Supreme Court adopts ‘proactive management-based regulation’ | Illinois Lawyer Now

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Another State Supreme Court, here Idaho, has abandoned the actual innocence rule. That rule holds that a criminal defendant cannot sue his lawyer for legal malpractice unless he establishes actual innocence.

The court explained:

This Court has addressed a legal malpractice claim arising from a criminal case only once, in Lamb v. Manweiler, 129 Idaho 269, 923 P.2d 976 (1996). Lamb did not address the statute of limitations issue; however, Lamb did address—in dicta—the actual innocence element. Id. at 272, 923 P.2d at 979. Before the appeal reached this Court, the Idaho Court of Appeals vacated and remanded the district court’s grant of summary judgment. In doing so, the Idaho Court of Appeals addressed an issue of first impression in Idaho: where a legal malpractice suit stems from the representation of a client in a criminal prosecution, must a plaintiff prove actual innocence? The Idaho Court of Appeals held that a plaintiff must prove that he or she was in fact innocent of a crime. Manweiler petitioned this Court for review, and this Court affirmed the district court’s grant of summary judgment. This Court did not expressly require actual innocence as an element of the claim; rather, it stated that “Lamb does not dispute the proposition that in a legal malpractice action arising from representation of a defendant in a criminal proceeding, the person pursuing the claim must establish the additional element of actual innocence of the underlying criminal charges.” Id.

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A Chicago attorney known for representing Christian conservative causes has been suspended from practicing in federal court for a year after he admitted making lewd and misogynistic comments to a rival lawyer, including sending an email that twisted her name to spell a vulgar term for a female body part.

Source: Lawyer suspended from federal court for lewd, misogynistic comments – Chicago Tribune

If these allegations are true, and Judge Castillo did find that the allegations were true, this lawyer can expect further discipline from the ARDC. In my opinion, Judge Castillo is correct to recommend that the attorney obtain professional help.

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Goldstein was retained as a mediator by Barrett and his then wife. After meeting with the couple, Goldstein drafted a post-nuptial agreement that Barrett and his wife later signed. (A post-nuptial agreement is one that a married couple enters into while a prenuptial agreement is entered into before the marriage). When wife filed for divorce, Barrett sued Goldstein alleging legal malpractice.

Goldstein’s defense was that there was no attorney-client relationship between her and Barrett because Barrett and his then-wife were each represented by counsel. Therefore the act of drafting a post-nuptial agreement did not give rise to a lawyer-client relationship. The court agreed with Goldstein and dismissed the legal malpractice claim. The court explained why it found that there was no attorney-client relationship between Goldstein and Barrett:

Here, plaintiff’s complaint attempts to characterize Goldstein’s role as an attorney-client relationship with plaintiff, but plaintiff failed to allege any facts to substantiate this claim.

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This case is interesting because it dismisses a legal malpractice claim because the expert did not reveal how the negligence of the attorney caused the injury of the plaintiff. The opinion does not shed as much light on the facts of the case as I would like it to. However, the opinion does explain that although plaintiff had an expert and the expert prepared a report, the expert did not sufficiently explain proximate causation. Proximate causation is a difficult concept for nonlawyers to understand. Indeed, sometimes lawyers do not understand it.

In sum, the expert report said the lawyer was negligent but it failed to explain why the negligence caused the bad result that the plaintiff received. The opinion, though it is based on Minnesota law, is consistent with the modern trend in the cases which requires expert reports to be more complete.

Edward X. Clinton, Jr.

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In Barkal v. Gouveia and Associates, the Court of Appeals of Indiana affirmed a grant of summary judgment for an attorney defendant. The decision was issued on December 27, 2016, and will be published.

Barkal alleged that Gouveia breached the standard of care and caused him damages when he failed to file a bankruptcy petition. (Gouveia denied having been retained to file a bankruptcy petition, but that part of his defense did not factor in the decision).  Barkal alleged that because Gouveia did not promptly file the bankruptcy case, and, as a result, he lost a meritorious bankruptcy case. (Again, the allegation is hard to fathom as Barkal hired another attorney who did file the bankruptcy case).

Gouveia moved for summary judgment on the ground that Barkal did not disclose and present expert testimony. Barkal pointed to the deposition testimony of two of his other bankruptcy lawyers, but the court noted that those lawyers were not disclosed as experts and did not offer opinion testimony in their depositions. As a result, Barkal had no expert and no case. The court explains its ruling and cites the relevant deposition transcripts:

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The Seventh Circuit has affirmed a decision to dismiss a legal malpractice complaint in which West Bend Insurance alleged that its former counsel committed legal malpractice in connection with the defense of a worker’s compensation claim. The claim set forth numerous deficiencies in the lawyer’s performance in the worker’s compensation case, including his unauthorized decision to admit liability. However, the complaint was dismissed because West Bend never explained why the alleged errors would have made a difference. Put another way, West Bend never alleged how the result would have been different in the absence of the alleged breaches of duty. Judge Ripple’s opinion sets forth the court’s reasoning on proximate causation in some detail and is worth quoting here:

There is no dispute that West Bend has described adequately the duty element in its malpractice claim. Nor is there any disagreement about the adequacy of West Bend’s narrative with respect to the alleged attorney conduct constituting a breach of that duty. In that respect, West Bend alleges that Mr. Schumacher, having assumed responsibility for the defense of the claim, failed to prepare adequately for the hearing, revealed inappropriately the defense theory of the case to Marzano’s counsel, and then, without authorization, conceded liability for Marzano’s workers’ compensation claim.[15]

The allegations with respect to causation and damages present, however, significant concerns. At the outset, we note that the treatment by the Second Amended Complaint of the underlying workers’ compensation claim, which, as we have explained, is central to an assessment of causation and damages, is markedly different from the treatment of Mr. Schumacher’s alleged litigation conduct. While the complaint describes the conduct in some detail, it describes the underlying workers’ compensation claim in rather summary fashion. Specifically, while the complaint identifies the injured party as John Marzano, it tells us nothing about his claimed injury or his claim against his employer. Instead, it summarily states that “[p]rior to August 2006, there existed certain factual defenses and a medical causation defense to the Marzano claim.”[16]

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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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This is not a legal malpractice case, but it is worth considering. The Fifth Circuit affirmed a $1000 sanction against two lawyers for the defendant who failed to disclose three audio recordings to the plaintiff. The lawyers were sanctioned because they certified that their initial Rule 26 disclosures were complete.

The case arose out of an alleged sexual assault at a private prison. The plaintiff sued and alleged that she had been assaulted by a prison employee. The lawyers representing the defendants obtained three audio tapes of recorded phone calls from the plaintiff to family members. The recordings could be construed to cast doubt on the plaintiff’s version of events.

At her deposition the lawyers for the defendants played the tapes and questioned plaintiff about them. Plaintiff then filed a motion for Rule 37 sanctions against the lawyers for failing to disclose the audio tapes. The district court sanctioned each lawyer $1000.

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The ARDC brought an unauthorized practice of law complaint against an attorney who allegedly failed to register to practice law. That, by itself, would not be interesting. The fact that the lawyer failed to register at any time after 1995 and handled numerous matters for clients during the next ten years is astonishing. The allegations, if true, are astonishing:

At all times alleged in this complaint, Supreme Court Rule 756(a) required that, on or before the first day of January of each year, attorneys admitted to practice law in Illinois (subject to certain exceptions that do not apply to Respondent in this matter) register and pay to the Attorney Registration and Disciplinary Commission (“the Commission”), any registration fee due according to the provisions of the Rule.

2. At all times set forth in this complaint, Supreme Court Rule 756(h) required the Administrator, on or after February 1 of each year, to remove from the roll of attorneys authorized to practice law in Illinois the name of any attorney who had not registered for that year as required by the Supreme Court Rules.