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This opinion arises in an unusual procedural setting – plaintiff sought summary judgment on liability. Plaintiff claimed that an estate planning attorney erred in drafting a Will. The documents are quoted here:

On August 19, 2006, Elizabeth executed a revised Last Will and Testament presented to her by Defendants. (Id. at ¶¶ 14-16.) For the purposes of this motion, there are three relevant sections to the Last Will and Testament. Section One reads, in pertinent part:

I give, devise and bequeath all of my property of whatever nature, both real and personal, personal effects, household goods, automobiles, and all other items of goods and chattels to my children who survive me in equal shares of substantially equal value, per stirpes and not per capita.

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It is unfortunate that this case was not published, but it is still worth considering. The plaintiffs sued their lawyer who had drafted a Stock Purchase Agreement under which they sold their stock in a privately held company. When the company was sold, there was litigation pending. The parties negotiated an indemnification provision relating to the litigation. The court describes the facts in this brief summary:

In July 2011, respondent-attorney Joseph A. Turman prepared a stock purchase agreement for the sale of appellants James and Elizabeth Leach’s company, IDA of Moorhead Corporation, to SNAPS Holding Company. At the time of the sale, the Leaches were defending a wrongful-termination lawsuit brought by a former employee, Reed Danuser. The purchase agreement provided that SNAPS was aware of the litigation, and, subject to the indemnity provision in the purchase agreement, agreed to indemnify and pay the expenses and judgment associated with the lawsuit. The indemnification provision in the purchase agreement stated: “[SNAPS] shall hold and indemnify [the Leaches] harmless from the claims of Reed Danuser up to the sum of $100,000.00. In the event the amount necessary to resolve the issues with Reed Danuser exceed[s] $100,000.00 [the Leaches] shall be responsible for that portion.”

Unfortunately for the plaintiffs, the litigation resulted in a judgment exceeding $800,000. They then sued their attorney. The court dismissed the complaint holding that the plaintiffs clearly understood, and admitted they understood, that they were liable for any amount in excess of $100,000. Thus, they could not allege damages and had no lawsuit. Case dismissed. The dismissal was then affirmed by the Court of Appeals.

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The plaintiff filed a malpractice claim against her divorce lawyers. However, her claim did not succeed because she did not provide expert testimony. That testimony, from a family law lawyer, would be necessary to show negligence.

This is one of those truths that we cannot repeat enough times – an expert is needed to show how the lawyer’s performance fell short of the standard of care.

Source: Nolan v. Ernst, 2017 Ohio 1011 – Ohio: Court of Appeals, 12th Appellate Dist. 2017 – Google Scholar

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Lawyers have rights to hold the client’s file or other property as security for payment. Here the lawyer held on to a former divorce client’s file indefinitely. The client eventually sued the lawyer for legal malpractice – under the theory that the lawyer had no right to hold the file. Had the case been decided on that issue, it would have been an important case. However, the court dismissed the case on statute of limitations grounds, based on the three-year Arkansas statute of limitations.

Source: Haynes v. Wagoner, Dist. Court, ED Arkansas 2017 – Google Scholar

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http://www.iardc.org/HB_RB_Disp_Html.asp?id=12328

The ARDC has recently filed several elder abuse cases. This is one of those cases. According to the Review Board, the facts were as follows:

Respondent graduated from law school in 1989. He has a solo practice at Milwaukee and Devon in Chicago. He handles mostly residential real estate work and most of his clients are Polish. Respondent’s first language is Polish.

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Plaintiffs, Charles Faber and Karen Faber, filed suit against insurance agencies and related individuals, claiming insurance malpractice. Defendants moved for summary judgment on the basis that Plaintiffs’ claims were barred by the statute of limitations. Plaintiffs responded that the limitation period was tolled because Charles could not reasonably have discovered the alleged insurance malpractice until a date within the limitations period because a reasonable person does not read his or her insurance policies. Summary judgment was entered for Defendants on grounds that Plaintiffs’ claims were time-barred under the three-year limitation period for insurance malpractice claims. The Supreme Court affirmed, holding that Plaintiffs’ claims against Defendants were untimely.

This is an insurance malpractice case, a case in which the plaintiff claimed that it was insurance malpractice to fail to include uninsured motorist coverage in his umbrella policy. The court rejected this claim because the insurance company sent notices to the plaintiff explaining exactly what coverage he had purchased. Because the change in coverage (dropping the uninsured motorist coverage) occurred in 2002, the statute of limitations had long expired before the Plaintiff filed suit.

The analysis:

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Please note that I was one of the lawyers who represented the plaintiff in this case. The case was designed to challenge the confession of judgment by a law firm that had previously represented a bank that filed a collection lawsuit.

So, the Bank, represented by Ginsberg Jacobs filed suit on a promissory note and on personal guarantees. An associate with Ginsberg Jacobs then confessed a judgment against the plaintiffs. They sued alleging that the confession of judgment created a conflict of interest in that the law firm was representing opposing parties in a lawsuit.

The Defendants moved for summary judgment on the ground that the mere act of confessing a judgment did not create an attorney-client relationship. The District Court, in a thoughtful opinion by Magistrate Rowland, agreed with the defendants. The Court explained:

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This is a case where an insurance company sued a lawyer to rescind an insurance policy on the basis that the lawyer made material omissions in his application for insurance and in his application to renew his insurance. The lawyer missed the statute of limitations in a personal injury case and was tardy in filing an appeal of an adverse judgment. Despite these omissions, he told Liberty that he was not aware of any claim against him. The opinion summarizes this language as follows:

In addition to the renewal application prepared by Mr. Wolfe for the 2013 Policy, Mr. Wolfe also submitted a Notice of Acceptance Letter to Liberty on November 5, 2013, in which he wrote, in part: “this letter acknowledges that, after inquiry, I am not aware of any claims and/or circumstances, acts, errors, or omissions that could result in a professional liability claim since completion of my last application and supplements.” Id. ¶ 28. As a result of Mr. Wolfe’s certification on each application that he had no knowledge of circumstances that could result in potential claims against him, Liberty issued the 2011, 2012, and 2013 policies. Id. ¶¶ 22, 25, 29. Liberty now contends that these certifications were material misrepresentations. Id. ¶¶ 56-67.

The lawyer also failed to respond to Liberty’s requests for information for the two claims.

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A common legal malpractice claim made against a divorce lawyer is that the lawyer failed to take sufficient discovery of the ex-spouse’s assets. Here, Engelman brought such a claim. The claim was defeated, however, by representations in the settlement documents that showed that the client disregarded the lawyers’ advice and rushed into a settlement:

Furthermore, Engelman also failed to establish that the attorneys’ actions were the proximate cause of her alleged damages. Engelman voluntarily signed the divorce agreement, which she negotiated and begged her attorneys to get ready for her to sign. As detailed above, Engelman insisted on going forward with presenting a counteroffer to her former husband’s attorney in spite of the advice from the attorneys to slow down and try to mediate. Kessler felt that this decision to not follow his advice was so significant that he urged Tobin to put in writing for Engelman the risks of sending the counteroffer. Throughout the negotiations regarding the proposed settlement agreement, Engelman continued to communicate to the attorneys that it was urgent the settlement agreement get finalized because she needed the money she would receive from the divorce in order to buy a house. Tobin even tried to get Engelman to move back her closing date on the house because it was in her best interest to slow down.

There are few rules of law more fundamental than that which requires a party to read what he signs and to be bound thereby. This rule has particular force when the party is well educated and laboring under no disabilities. To hold otherwise is to create the potential for malpractice litigation in every contract dispute.(Citation and punctuation omitted.) Hudson, 202 Ga. App. at 887 (3).

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The ARDC has filed a complaint against Dmitry Feofanov, 2017 PR 00009, for allegedly failing to disclose the death of a client in a lawsuit with a car dealer. Under Illinois law, once the client dies, the attorney-client relationship ceases to exist. The lawyer needs the authorization of the executor or administrator of the estate to proceed.

Obviously, this is a complaint and the allegations have not been proven or heard by trier of fact. The case is worth reading because it illustrates ARDC enforcement priorities.

Edward X. Clinton, Jr.

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