The underlying case was a personal injury case. The plaintiff hired a lawyer to represent her in that case and the lawyer obtained a settlement of the lawsuit that the plaintiff accepted. Despite accepting the settlement, the plaintiff sued for legal malpractice. The trial court dismissed the lawsuit and the appellate court affirmed. The fatal flaw with the case was that the plaintiff did not allege how the lawyer breached any professional duty to the plaintiff.
This case is newsworthy.The 11th Circuit affirmed a contempt finding against a lawyer who allegedly wrongfully procured evidence from the defendant. The Court set forth the facts as follows:
Attorney Sandra Finch represented Elane Armstead in Armstead’s lawsuit against Allstate Property & Casualty Insurance Company. In the weeks leading up to trial, Finch, on Armstead’s behalf, filed a motion in limine to exclude or strike the deposition testimony of Allstate’s fact witness Mark Gould. Allstate filed a response in opposition that, among other things, described what happened during Gould’s deposition, which it supported by citing the deposition transcript and Gould’s affidavit. The transcript showed that during the deposition Finch handed Gould page-by-page photographs of a document titled “Steamatic Guide to Restoration Services” (an outdated company document) and that when Gould asked Finch where she had found that document, Finch refused to answer. Gould in his affidavit stated that he “got very upset when it became apparent [that Finch] had obtained the document from my office without my permission.”
The photographs of the Steamatic Guide were not the only photographs Finchshowed Gould during his deposition. At one point she handed Gould a photograph of the inside of his office, but refused to explain where she had gotten the picture. Gould accused Finch of trespassing, at which point Finch responded, “I caution you on defaming me, because if you defame me, I can promise you it will not be good.”
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.
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.
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) and six years in New Jersey (McGrogan v Till, 167 NJ 414, 426, 771 A2d 1187 ). Therefore, New York’s three-year statute of limitations period applies.
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.
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:
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.
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.
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.