I have a strong opinion on this case – this is a dreadful act of overreaching by the ARDC. Ms. Naughton and a friend were accused of disorderly conduct after a Cubs game in 2012. In 2013, she was tried and acquitted of all charges.
Now, in an atrocious abuse of prosecutorial discretion, the ARDC has filed charges alleging the same facts as were alleged in the criminal case.
Illinois has two statutes that establish time limits for when you can sue for legal malpractice. The statute of limitations gives the plaintiff two years from the time the negligence was discovered. However, the statute of repose bars any claim unless the negligent act occurred within six years of the filing of the lawsuit. This means that you have two years from the time you discovered the injury to file a lawsuit, unless the negligent act of the lawyer is more than six years old.
What happens when you believe that your lawyer’s advice caused you to be sued? The Illinois courts have held in several such cases that the plaintiff is not required to sue for malpractice immediately. Instead, the plaintiff can wait until the underlying litigation is resolved. One such case is Warnock v. Karm Winand and Patterson, 1-06-0341, 876 N.E.2d 8 (2007). The plaintiffs hired the defendant law firm to handle a real estate closing. The closing was to occur in April 2000. Plaintiffs claimed that the buyer (Mr. and Mrs. Brown) defaulted and plaintiff attempted to retain the earnest money. On August 1, 2000, the Browns filed suit, claiming that that plaintiffs had no right under the contract to withhold the earnest money.
Question – were the plaintiffs required to file suit against their lawyer when they were sued? Did plaintiffs malpractice claim arise on August 1, 2000? Or did the claim arise when the plaintiffs lost the underlying case?
Mandatory Sentencing for Medical Marijuana – NYTimes.com.
This is a New York Times story on the prosecution of a family growing marijuana. They claim the marijuana is for medical purposes. The feds disagree. In the end, a jury will decide the fate of these people.
This case raises an ethical question for lawyers. Let’s say you are a lawyer in Colorado or Washington state. Someone comes in to the office and proposes a new company to sell medical marijuana. You form an entity. You write an operating agreement and you assist the client in setting up what appears to be a lawful business. Also, assume your clients obtain a state license and comply with all of the laws of their state.
ESTATE OF LIFTIN v. US, Court of Appeals, Federal Circuit 2014 – Google Scholar.
This appeal is slightly off topic, but is relevant to the area of legal malpractice liability. The Estate filed its federal estate tax return five months late. The IRS then assessed a 25% percent penalty, in the amount of $135,714.45.
The Estate claimed that it had a legitimate reason to delay filing the estate tax return, namely that it had received legal advice not to file the return from its lawyers. The issue is whether counsel’s advice gave the executor of the estate “reasonable cause” to delay filing. The trial court found no reasonable cause and the Federal Circuit affirmed. Tax counsel allegedly advised waiting to file the return until the decedent’s widow became a United States citizen. Tax counsel also advised delaying the filing until certain information had become available.
This case results from an error in judgment that took place in 2003, more than 11 years ago. A lawyer instructed a staff member to falsely attest that certain persons had witnessed the signing of a will. This is one of the easiest of disciplinary cases for the administrator to prove.
Here are the pertinent allegations:
This is an important issue in legal malpractice litigation – what happens to the communications between lawyers in a law firm and their in-house counsel. In this case the Oregon Supreme Court has recognized that those communications are privileged under the attorney-client privilege.
Oregon’s Evidence Code has a pertinent provision:
A lawyer converted $1300 in client funds and loaned those funds to his sick brother. He later repaid the funds to the client. However, the ARDC opened an investigation and the deception was found out. The ARDC hearing board recommended a censure. The Review Board increased the sanction to a 30 day suspension.
The Panel explains:
The Lawyer’s Duty of Candor to the Client – Should It Be Formally Defined?
Is it ever appropriate to lie to your client? Judge Raymond J. McKoski, an adjunct professor of law at John Marshall Law School, has posted a thoughtful article on the lawyer’s duty of candor to the client. The article is titlted: “The Truth Be told: The Need for a Model Rule Defining a Lawyer’s Duty of Candor to a Client.” A link to the paper can be found here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2419494.
McKoski notes that Model Rule of Professional Conduct 4.1 “bars a lawyer from making a false statement of material fact to a third person in connection with the representation of a client.” He notes, however, “there is no Model Rule establishing and defining a lawyer’s duty of candor to a client.” McKoski believes that there should be such a rule. Indeed, he proposes the addition of a new subsection (c) of Model Rule 1.4 which would provide as follows:
Each year the ARDC files many cases against lawyer who convert funds from client trust accounts. This case is slightly different. The ARDC has charged one member of a two-member firm with failing to (a) maintain accurate and complete client trust account records and (b) failing to make “reasonable efforts” that the other lawyers in the firm were in compliance with the Rules of Professional Conduct.
This is a case alleging inadvertent conversions of client funds due to a lack of record-keeping by the lawyers and the firm. There were several bounced checks and some clients apparently had to wait longer than they should have to receive their settlement checks.
This is an unpublished case, captioned, In re Marriage of Marie Brinkley v. Leonard Przysucha, 2014 Ill App (1st) 131397-U. The case is a dispute over child support obligations. The respondent allegedly had a large balance of unpaid child support. The petitioner, however, had obtained a bankruptcy discharge and did not disclose the child support claim in her bankruptcy petition.
The leading case on the issue is Berge v. Mader, 2011 IL App (1st) 103778. In that case, the court held that the petitioner was judicially estopped from pursuing the child support claim because she failed to disclose it in her bankruptcy papers.
In the Brinkley case, which is arguably identical, the lawyers for petitioner did not disclose the contrary authority and were sanctioned. The Court explained: ”
Chicago Legal Malpractice Lawyer Blog