Illinois has a two-year statute of limitations period which applies to legal malpractice claims. Here, the Appellate Court held that the two-year statute operated to bar claims against a law firm that allegedly assisted its client in a breach of fiduciary duty.
Facts:
This case is captioned 2015 CO 61, Concerning the Application for Water Rights of the Town of Minturn: J. Tucker, Trustee v. Town of Minturn.
The Colorado Supreme Court held that a non-attorney trustee of a trust may not proceed pro se before the water court. The court reasoned that Tucker, a non-attorney, was acting not on his own behalf but was representing the rights of other people. Other courts have reached the same result. A trustee is a fiduciary who acts on behalf of others. He cannot act pro se for others. Instead, the trustee needs to retain a lawyer to represent the trust.
The ruling is consistent with long-standing practice and ethics rules. The trustee cannot proceed pro se because he is not licensed and may lack the training and experience to obtain the best result for his clients, the trust and its beneficiaries.
This case is captioned Bode & Grenier, LLC v. Carroll L. Knight.
Carroll Knight retained the law firm, Bode & Grenier, LLC, to assist it with litigation and regulatory matters arising out of an oil spill of 100,000 gallons of oil on Carroll Knight’s property in Toledo, Ohio. The lawyers agreed to represent Carroll Knight on an hourly fee basis. After two years of litigation, Carroll Knight fell behind on its legal bills and entered into an agreement with the law firm. The agreement contained three components: (a) a retention letter; (b) a Promissory Note obligating Carroll Knight to pay $300,00o in past due legal fees; and (c) a Confession of Judgment.
On May 2, 2008, the firm filed an obtained a Confession of Judgment in the amount of $302,500.
The plaintiff sued its former attorneys for legal malpractice. The attorneys then moved to dismiss under the provisions of California’s Anti-SLAPP statute. The Anti-SLAPP statute allows the defendant to file a motion to dismiss where the complaint arises from activity exercising the rights of petition and free speech. The trial court agreed and dismissed the lawsuit.
On appeal, the lawsuit was reinstated by the California Court of Appeals.
Source: Davidson v. GUREWITZ, Ill: Appellate Court, 2nd Dist. 2015 – Google Scholar
In recent years, there have been several attempts by dissatisfied family law litigants to sue lawyers appointed by the courts to serve various roles. This case involves an attempt to sue a court-appointed child’s representative for legal malpractice. This is now the third decision holding that the child’s representative has absolute immunity from a legal malpractice lawsuit. The court reasoned that the child’s representative was appointed by the court and was therefore immune.
The policy reason to grant absolute immunity is to protect the court’s ability to appoint a child’s representative. The child’s representative is appointed by statute and must confer with the child and make evidence based legal arguments on behalf of the child. Were the court to allow everyone who lost a custody case to sue the child’s representative, so the theory goes, it would make it difficult to have a child’s representative appointed. Slippery Slope arguments are usually rejected by courts because every class of defendant in every case has, at one time or another, made such an argument. Prior decisions in Illinois rejecting similar claims are Vlastelica v. Brend, 2011 IL App (1st) 102587 and Cooney v. Rossiter, 583 F.3d 967 (7th Cir. 2009).
Source: PARALLEL NETWORKS, LLC v. JENNER & BLOCK LLP, Tex: Court of Appeals, 5th Dist. 2015 – Google Scholar
This is a decision affirming an arbitrator’s award of legal fees to Jenner & Block. The case is a typical attorney-client fee dispute, but here the Court enforced the parties’ arbitration clause.
The fee dispute arose out of patent litigation handled by Jenner & Block for Parallel Networks. Jenner & Block ultimately withdrew from the litigation after locating successor counsel for Parallel Networks. Jenner & Block cited the client’s failure to pay invoices on a timely basis and its lack of economic resources to continue the litigation.
Source: IN THE MATTER OF ESTATE OF AMUNDSON, 2015 ND 253 – ND: Supreme Court 2015 – Google Scholar
This appeal dealt with the issue of fees charged to probate estates. The North Dakota Supreme Court affirmed a judgement against a lawyer that he repay $95,000 in legal fees that were excessive.
After Donald Amundson passed away in 2011, two executors were appointed. Donald’s will provided that all of his property was to pass to the Donald G. Amundson Trust. The trial court found that one of the co-executors breached a fiduciary duty owed to the estate by paying John Widdel, Jr.’s fee bills without questioning them. The District Court ordered Widdel to repay $95,000 to the Estate.
To win a legal malpractice case the plaintiff must prove a case-within-a-case and show that, but for the breach of the standard of care by the attorney, the plaintiff would have prevailed in the underlying case. Here are some examples of client complaints about lawyers that won’t meet that standard.
A legal malpractice case requires careful analysis. Even if the lawyer was negligent in some way, did the negligence make any difference in the ultimate outcome? To evaluate a legal malpractice case, you must evaluate the underlying case as well.
Rodi v. Horstman, 2015 IL App (1st) 142787 is such a case. Rodi hired Horstman to handle an appeal of an unfavorable decision. It is undisputed that Horstman filed the notice of appeal one day late and the Appellate Court held that it had no jurisdiction. Rodi then sued Horstman for legal malpractice, but the trial court granted summary judgment for Horstman and the Appellate Court affirmed. The reason is that even if Horstman had timely filed the notice of appeal the appeal was a loser.
The Underlying Case:
In most states, a former client of a criminal defense lawyer cannot sue for legal malpractice unless he can establish “actual innocence.” The Actual Innocence rule bars almost all legal malpractice claims against criminal defense lawyers. The purported basis for the rule is that the guilty person should not profit from his crimes. Scholars have criticized the rule as poorly reasoned and lacking in justification. One criticism of the rule is that it unfairly differentiates between civil lawyers and criminal lawyers. A civil litigator who breaches a duty to a client, causing the client to lose an underlying case, is not immune from suit. The client suing the civil litigator is not required to prove actual innocence or anything like it.
This week the Supreme Court of Kansas abolished the Actual Innocence rule. Mashaney v. Board of Indigents’ Defense Services. In Mashaney, the plaintiff claimed that he was wrongly convicted of child sexual assault due to the ineffective assistance of his court-appointed lawyers. The opinion does not furnish many details but it appears that the case against Mashaney arose when the mother of Mashaney’s five year old daughter made allegations that Mashaney had sexually abused his daughter.
Mashaney was convicted in 2004 and sentenced to 442 months of imprisonment. He steadfastly maintained his innocence. In 2011, Mashaney entered into an Alford plea under which he pleaded guilty to two counts of attempted aggravated battery and one count of aggravated endangering a child. The State dropped the remaining charges and Mashaney was sentenced to 72 months imprisonment. Because he had already served more than 72 months, he was entitled to be released from prison.
Chicago Legal Malpractice Lawyer Blog