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BEFORE THE HEARING BOARD.

If true, this is an ugly awful tale in which a lawyer, Robert M. Stephenson, stole from trusts established by his parents for the benefit of his own children. The key allegations are set forth in the complaint:

“1. In May 2007, Respondent agreed to serve as trustee of the Robert McCreary Stephenson and Martha LaFon Stephenson Annual Exclusion Gifting Trust (“the children’s trust”), which had been created and funded in Florida at that time by Respondent’s parents, Robert McCreary Stephenson and Martha LaFon Stephenson.

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This is, unfortunately, an unpublished opinion, In re Marriage of Elizabeth W. Nesbitt and Bruce M. Nesbitt, 2014 IL App (1st) 131825-U.

After the parties divorce reached judgment, Bruce brought a legal malpractice action against his former lawyers for errors he alleged caused him to incur economic damages. Elizabeth then brought a Rule to Show Cause against Bruce on the ground that he had failed to pay her a share of the settlement. She alleged that the legal malpractice claim was marital property.

The court reasoned that Bruce did not discover the cause of action against his lawyers until the judgment of dissolution of marriage was entered. Therefore, the settlement was not marital property and Elizabeth did not have a valid claim to a share of the settlement proceeds.

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Last week I gave a presentation on Avoiding Legal Malpractice in Family Law Matters at the Chicago Bar Association Family Law Committee. Thanks to my host, Mallory O’Connor, and Stephanie Capps for help with the presentation.

https://www.scribd.com/doc/241354374/Avoiding-Legal-Malpractice-in-Family-Law-Matters-9-29-2014-EXCJr

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Phinisee v. LAYSER, Dist. Court, ED Pennsylvania 2014 – Google Scholar.

One common claim against a lawyer is that he failed to obtain a good enough deal for his client. Here, the lawyers obtained $1.2 million for the plaintiff and her minor child in a lawsuit against the United States. After accepting the settlement, she filed suit for legal malpractice. Plaintiff was apparently unhappy about a Medicaid lien and the amount of the settlement.  The district court dismissed the lawsuit on a motion to dismiss. The district court held that the claims were not negligence claims, but, rather claims that the amount of the settlement was insufficient, which are not valid claims under Pennsylvania law.

What the court is saying is that you need more than a bad result to allege legal malpractice. You need to allege some error by the lawyer. Here, plaintiff did not allege an error by the lawyer.

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Adkins v. Palermo, Dist. Court, ED Kentucky 2014 – Google Scholar.

Probably the most common way to lose a legal malpractice case is to fail to identify an expert. The defendant moves for summary judgment and the court grants it. This opinion is worth reporting because it is well-written.

In the underlying case, plaintiff, represented by Mr. Palermo, filed a personal injury case. The trial court held that the defendant was immune under workers compensation doctrines. The lawyer told Adkins that there was no valid basis to appeal and concluded the representation. Adkins sued the lawyer, but he failed to obtain an expert witness and, thus, could not prove a breach of the standard of care.

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IN RE MARRIAGE OF WIXOM AND WIXOM, Wash: Court of Appeals, 3rd Div. 2014 – Google Scholar.

This is an appeal from a divorce case in which a lawyer (Robert Caruso) and his client (Rick Wixom) were held jointly and severally liable for a $55,000 sanction award. The lawyer and client were sanctioned because, in the underlying custody litigation, they made false charges about Rick’s ex-wife Linda.

Here is where the lawyer made an error. He appealed the sanctions against himself and filed an appeal for his client, Rick Wixom. The court explains how the lawyer threw the client under the bus:

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DEHART v. Lavit, Ky: Court of Appeals 2014 – Google Scholar.

This case recognizes a duty of care to opposing counsel to put the opposing counsel’s name on a settlement check. Lavit sued DeHart because DeHart forgot to put his name on a settlement check. The settlement funds were spent before they could be recovered.

The duty to opposing counsel is based on expert testimony concerning local practices. The court accepted the testimony.

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LAW OFFICE OF OSCAR C. GONZALEZ, INC. v. Sloan, Tex: Court of Appeals, 4th Dist. 2014 – Google Scholar.

This is a Texas case in which the lawyer, Oscar Gonzalez, was held liable when his co-counsel converted a settlement check. The attorney tried to defend on the ground that there was no attorney-client relationship. That defense was properly rejected by the jury where there was a signed engagement letter.

Edward X. Clinton, Jr.

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Meyers v. LIVINGSTON, ADLER, PULDA, 87 A. 3d 534 – Conn: Supreme Court 2014 – Google Scholar.

One recurring theme in lawsuits against lawyers is whether the plaintiff can sue for breach of contract and thereby obtain a longer statute of limitation. In Illinois, the statute of limitations for a breach of contract is either 5 years (oral) or 10 years (written). In Connecticut, the contract statute of limitation is 6 years, but the legal malpractice statute is 3 years.

Here, the court concluded that the action (filed more than three years after the claim arose) was untimely because the action was based upon a legal malpractice theory, not a contract theory. In particular, the plaintiffs’ allegations that the lawyer breached the Rules of Professional Conduct convinced the court that the case was a malpractice case not a contract case.

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IN RE JAHRLING, Bankr. Court, ND Illinois 2014 – Google Scholar.

Jahrling is an Illinois lawyer who filed for bankruptcy protection. A creditor who had won a legal malpractice judgment against Jahrling sought to block the discharge of that obligation in the bankruptcy proceeding.

“The Estate seeks to except from discharge a $26,000 state court legal malpractice judgment entered against Jahrling in 2007. It also seeks to deny the Debtor a discharge. The Amended Complaint asserts causes of action under four Bankruptcy Code (“Code”) sections: § 523(a)(4) — denial of discharge of a particular debt due to defalcation by a fiduciary; § 523(a)(6) ….” In other words the creditor was claiming that Jahrling breached his fiduciary duty to the creditor and therefore could not discharge the debt in his bankruptcy proceeding.

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