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It is very common that someone will come into my office and explain that he is a victim of legal malpractice. Often, for reasons I don’t understand, the person waits more than two years after the underlying judgment before they contact me. By waiting this long, the statute of limitations has run and there is absolutely nothing we can do to help the plaintiff.

In Illinois the plaintiff has two years to file suit from whenever the plaintiff discovers the injury. Where there is litigation, discovery occurs when the underlying case reaches judgment.

In Belden v. Emmerman, the Illinois Appellate Court held that the statute of limitations begins to run when there is an adverse judgment against the injured party. The defendant moved to dismiss and the plaintiff argued that, because he filed an appeal of the adverse judgment, the statute of limitations did not start to run until the appeal was decided.

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This is an old but sad story: a plaintiff in federal court misses the expert disclosure deadline and then the entire case is lost. The district court has the authority to set deadlines for expert disclosure and can enforce those deadlines. After the plaintiffs failed to disclose an expert, the district court entered summary judgment against them. They appealed, but the Seventh Circuit was also unsympathetic.

Source: HASSEBROCK v. BERNHOFT, Court of Appeals, 7th Circuit 2016 – Google Scholar

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The plaintiff, Cynthia O’Neal, brought a legal malpractice claim against her former lawyers. O’Neal, an owner of a restaurant chain that fell on hard times, alleged that her former lawyers had a conflict of interest when the represented her company and the opposing party in an assumption of a lease. The court rejected her claim on the grounds that she was unable to establish proximate causation.

In my experience, proximate causation can be difficult to prove. Lawyers make mistakes. Sometimes those mistakes breach the duty of care. The plaintiff must tie the negligent act to the damages suffered by plaintiff and come up with a plausible theory as to how the lawyers made things worse and caused the damage.

One area where it is very difficult to prove proximate causation is a legal malpractice claim in the foreclosure setting. The lawyer who defends the foreclosure may miss a deadline or make a legal error. However, that lawyer did not cause the default and did not proximately cause any damages.

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This case is typical of divorce malpractice cases. The plaintiff sued his former lawyers on the ground that they did not adequately address a potential problem of his settlement agreement with his wife. The problem, apparently, was that after the divorce the plaintiff was unable to refinance a loan on one of his commercial properties. That led to unspecified damages. Plaintiff then filed a legal malpractice case on a pro se basis. The court granted the defendant’s summary judgment motion on the basis that plaintiff did not retain an expert witness to testify on his behalf.

Cases holding that a plaintiff in a legal malpractice case must have an expert are legion. Despite this, in my experience, many nonlawyers do not understand why retaining an expert is so important. The retained expert testifies concerning the standard of care and offers an opinion as to whether the lawyers met the standard of care or did not meet the standard of care. The law views lawyers in the same way that it views medical doctor. A doctor is required to establish the medical standard of care. In similar fashion, the plaintiff here needed a divorce lawyer to offer an opinion as to the manner and method of practice of divorce lawyers in these situations.

Thus, before filing a legal malpractice case, consider whether or not you have the resources to retain a qualified expert. In a patent case, you need a patent lawyer. In a divorce case, you need a divorce lawyer. Without an expert a plaintiff is just wasting everyone’s time and money on a legal malpractice case that is not going anywhere.

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This case, Sanford v. Maid-Rite Corporation, 15-2424, is significant because it allowed lawyers to appeal a decision to deny their motion to withdraw. Even better it reversed the decision of the district court.

The case was a class action filed by current and former franchisees against Maid-Rite. The plaintiff alleged that Maid-Rite made false representations regarding the company’s profitability that induced them into purchasing franchises. In September 2014, Maid-Rite and the other defendants retained Larkin, Hoffman, Daly & Lindgren (“Larkin”) as counsel. The parties signed an engagement letter under which Larkin would bill the defendants on an hourly basis. Larkin “reserved the right to withdraw from this representation for good cause.” Good cause included the failure to make timely payment and the failure to follow Larkin’s advice on a “material matter.”

The defendants paid one invoice and did not pay any remaining invoices. On January 28, 2015, Larkin moved to withdraw. The magistrate denied the motion and the district court affirmed that decision. Larkin then filed an interlocutory appeal to the 8th Circuit, which reversed the decision on the grounds that it was an abuse of discretion.

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An Ohio court has affirmed a verdict in favor of a legal malpractice plaintiff. By itself, that would not be worth discussing. However, the result of the case, a verdict of $1,192.12, was a clear disappointment for the plaintiff.

The underlying case was an auto accident in which the plaintiff suffered apparently minor injuries. He hired a lawyer to file a case. Unfortunately, the lawyer missed deadlines and voluntarily dismissed the case. The lawyer then missed the deadline to refile the case and the claim became time-barred.

There is no question that the lawyer made an error. During the legal malpractice trial, the lawyer conceded that he had been negligent but contested the issue of damages. The jury then awarded $1,192.12 in damages. In sum, a great deal of work was done to prove a legal malpractice claim but the jury decided that the damages were minor.

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It is always a risk to talk to the media. Here, in a pithy opinion, The New York Appellate Division, First Department upheld a legal malpractice claim against a law firm. “Plaintiff alleges that he would not have lost his contractual right to certain deferred compensation if his attorneys had not acted negligently in speaking to the Wall Street Journal, in violation of the non-disparagement provision of the contract.” The court further commented that “neither the arbitration award nor the subsequent opinions submitted by defendants unequivocally contract plaintiff’s claim…”

Source: Barr v. LIDDLE & ROBINSON, LLP, 2016 NY Slip Op 744 – NY: Appellate Div., 1st Dept. 2016 – Google Scholar

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A limited representation agreement is an agreement where a lawyer agrees to undertake some services for a client, but does not agree to handle the client’s entire case. One example of a limited representation agreement is where a lawyer agrees to help a pro se litigant by writing briefs or discovery materials but does not agree to go to Court or handle depositions. Some courts have resisted these agreements and have sanctioned lawyers who have agreed to provide limited services to clients.

In Persels & Associates, LLC v. Capital One Bank, (USA), N.A., 2012-CA-001447-MR, the Supreme Court of Kentucky heard an appeal by three lawyers who entered into limited representation agreements with pro se clients and were sanctioned by a trial court judge.

Sarah Jackson and David Thomas, individual debtors, retained two lawyers to provide limited representation. According to the opinion, the limited representation agreements provided that neither lawyer “was required to sign pleadings, enter an appearance, or attend court proceedings.” Instead, the lawyers assisted the debtors in preparing pleadings. In 2011, the Circuit Court ordered the two lawyers to appear and show cause why they should not be held in contempt. After a hearing the Court held that the lawyers violated Kentucky’s Rule of Civil Procedure 11 and fined each of them $1.00.

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The Minnesota Supreme Court has weighed in on the issue of the unauthorized practice of law. The question it considered is whether a complaint signed by a lawyer who was unlicensed is a nullity or whether the defect can be cured. This is an important question and it has been considered by other states.

The highlights of the court’s reasoning are as follows:

The Minnesota rules of court are clear on the need for pleadings such as a complaint to be signed by an attorney licensed in Minnesota. See Minn. R. Civ. P. 11.01; Minn. Gen. R. Prac. 5. A complaint lacking the signature of a Minnesota attorney is defective. The rules also require a summons to be “subscribed by the plaintiff or by the plaintiff’s attorney.” Minn. R. Civ. P. 4.01. In keeping with statutory requirements that attorneys not licensed in Minnesota may not practice in the state, see Minn. Stat. § 481.02, we conclude that the Rule 4.01 imperative that a summons be subscribed by the plaintiff “or by the plaintiff’s attorney” requires that a summons not subscribed by the plaintiff be subscribed by an attorney licensed to practice in Minnesota. Accordingly, a summons is defective if it is not subscribed by either the plaintiff or an attorney licensed to practice law in Minnesota. Here, both the summons and the complaint were defective.

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This is a legal malpractice case arising out of a divorce case. Plaintiff alleged that her ex-husband concealed assets during the divorce case and that her lawyers were negligent in failing to discover those assets. The lawyer defendants moved to dismiss the case, but the Appellate Division of the Supreme Court of New York reversed and ordered that the case be dismissed.

Reasoning: The court recited the elements for a legal malpractice case (a) duty; (b) breach of duty; (c) proximate causation (that the plaintiff suffered a loss caused by the lawyer’s conduct) and (d) ascertainable damages. In the case of a settlement of the underlying case, the plaintiff must prove that the settlement of the action was effectively compelled by the lawyer’s action.

In this case, the court held that there was no proof that the plaintiff was compelled to enter into the settlement by the lawyer’s actions because the plaintiff was aware, before she settled, that her husband had concealed assets. The court explained: “Here, to the extent that the complaint asserted that the appellants were negligent in failing to ascertain the full extent of the assets of the plaintiff’s former husband, it failed to sufficiently allege that the stipulation of settlement entered into was effectively compelled by the mistakes of counsel, since the plaintiff acknowledged that she elected to enter into the settlement agreement even though she was aware that her former husband had not fully disclosed his assets.”

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