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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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This disciplinary proceeding stemmed from allegedly false statements contained in a campaign-issued flyer disseminated while Stephen O. Callaghan, Judge-Elect of the 28th Judicial Circuit was a candidate for Judge of the 28th Judicial Circuit. The West Virginia Judicial Hearing Board recommended that Judge-Elect Callaghan be disciplined for three violations of the West Virginia Code of Judicial Conduct and one violation of the West Virginia Rules of Professional Conduct. The Supreme Court adopted the Board’s recommended discipline, with modification, and found that it was appropriate to suspend Judge-Elect Callaghan from the judicial bench for a total of two years without pay, along with the recommended fine of $15,000, and reprimand as an attorney, holding (1) there was clear and convincing evidence of improper conduct presented in support of each of the violations found by the Board; and (2) Judge-Elect Callaghan’s constitutional arguments were unavailing.

Source: In re Hon. Stephen O. Judge-Elect Callaghan :: 2017 :: Supreme Court of Appeals of West Virginia Decisions :: West Virginia Case Law :: West Virginia Law :: U.S. Law :: Justia

This is one of an increasing number of cases where a judicial candidate is disciplined for making false statements about an opponent. Here the allegedly false statements worked and the candidate won the election. What triggered the ire of the West Virginia Courts was the particular nature of the statements. The materials juxtaposed statements about President Obama and lost coal jobs with a misleading allegation that the incumbent had attended a legal seminar in Washington D.C. The West Virginia Supreme Court describes the “survey” in this fashion:

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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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