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Cabrera v Collazo 2014 NY Slip Op 00622.

This is an opinion of the New York Supreme Court, Appellate Division. The facts were simple. The attorney missed the applicable statute of limitations and the client’s claim was barred. In such cases, the lawyer is liable for legal malpractice if the client can prove that, but for the attorney’s error, he would have won the underlying case.

Here, the lawyer’s estate raised an unusual defense. The attorney defendant passed away before the statute of limitations on the client’s claim ran. The lawyer’s estate is really making this argument: the lawyer passed away while the client’s claim was still viable, therefore, the client could have chosen another lawyer and filed the claim in timely fashion.

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In Frechtman v. Gutterman, 2014 NY Slip Op 00437, the Supreme Court, Appellate Division, a lawyer received an irate letter from his client in which his services were terminated. The lawyer sought to sue for defamation. The trial court dismissed the defamation case and the Appellate Division affirmed.

The letter contained the following statements: “We do not believe you adequately represented our interest,” “We believe your failure to act in our best interest in reference to certain matters upon first engaging in the matter may equate to misconduct, malpractice, and negligence,” “We believe that your future representation on this matter only became necessary, as a result of mistakes and oversights made by you acting as counsel,” and “[w]e believe that we should not pay for the value of services for which any misconduct or counsel oversight relates to the representation for which fees are sought.”

The trial court held that the statements above were merely statements of opinion, not statements of fact, and, thus, were not actionable. The court found the use of the phrase “we believe” significant. The court further held that statements by a client discharging a lawyer are absolutely privileged.  Finally, the court also held that a qualified privilege would apply and that the plaintiff did not allege malice sufficient to overcome the privilege.

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BEFORE THE HEARING BOARD OF THE.

A lawyer, Betty Tsamis, and the ARDC have agreed to a reprimand to settle a disciplinary complaint. There were two counts in the complaint. Count I alleged that Tsamis inadvertently converted settlement funds because of poor bookkeeping practices.  Count II gathered news attention. Count II alleged that Tsamis violated client confidentiality in responding to a negative review on the Avvo.com website.

The Joint Stipulation states: “ On April 10, 2013, Rinehart (the client) posted a second negative client review of Respondent on AVVO. Respondent replied to his post and revealed confidential information about his case. Respondent’s reply to Rinehart’s second posting contained information relating to her representation of Rinehart and exceeded what was necessary to respond to Rinehart’s accusations.”

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The case is captioned Nelson v. Quarles and Brady, LLP, 1-12-3122, Illinois Appellate Court, First District. This is probably the most important legal malpractice case decided in Illinois in 2013. The opinion is thoughtful and scholarly.

The underlying case

The underlying dispute was a contract dispute between two business partners, Kenneth Nelson and Richard Curia. The facts are exceedingly complicated and revolve around two written agreements and an oral agreement.

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The case is captioned In re Michael Naphtali Miller, 2012 PR 00072

In 2004, Miller represented Jeanne O. Meyer in the sale of her home. Ms. Meyer was 77 years old at the time. In 2009, Miller prepared statutory powers of attorney for healthcare and property for Ms. Meyer, both of which named Miller as the agent. Miller submitted an invoice for $2500 for the work on the powers of attorney and for a review of other estate planning documents. The invoice was paid in full.

In 2010, Miller requested and received from Ms. Meyer a “retainer for 2010 Legal Services” in the amount of $25,000. In February 2010, Miller met with Ms. Meyer at the nursing home where she resided and asked her to loan him $50,000. In November 2010, Miller gave Ms. Meyer a promissory note in which he agreed to repay the loan. Miller admitted that he was in financial difficulties at the time he obtained the retainer and the loan.

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ALEO v. Weyant, Tenn: Court of Appeals 2013 – Google Scholar.

This is a growing area of legal malpractice liability for family law practitioners. After a divorce, one party claims that her lawyer failed to secure a portion of the other party’s pension. The divorce court has the right to apportion the pension plan, but unless it is done correctly, the apportionment will not take effect. In Illinois, the lawyers must enter a QDRO, a qualified domestic relations order.

In the above-captioned case the client alleged that the lawyer failed to include provisions in the marital settlement agreement necessary to divide a military pension. Unfortunately, the case was dismissed on statute of limitations grounds.

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The case is captioned Iowa Supreme Court Attorney Disciplinary Board v. Robert Allan Wright, Jr., 13-0780, December 6, 2013.  The Iowa Supreme Court disciplined Wright for (a) failing to recognize a Nigerian scam and (b) allowing other clients to participate in the scam.  This case has received a fair amount of press attention, but the press has ignored the main issue in the case from a lawyer discipline perspective.

The trouble began when Wright was contacted by a client, Floyd Madison who informed Wright that Madison was the beneficiary of a large bequest from a long-lost cousin in Nigeria. Madison told Wright that he needed to pay $177,660 in inheritance taxes and then he (Madison) would receive the money. Most lawyers would have told Madison that the transaction was a scam. Wright, however, drafted a contingency fee agreement under which Wright would receive 10% of the inheritance in exchange for representing Madison.

Wright then made more mistakes. He urged several of his clients to loan money to Madison to help Madison pay the “inheritance taxes.”  At Wright’s urging, several of his other clients made loans to Madison. Wright placed the proceeds of the loans in his trust account. The opinion states “Wright stipulated that he failed to advise White, Stodden and Nunneman that they should seek independent counsel before making the loans to Madison.”

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Filed December 13.

This is a decision of the ARDC Review Board recommending a three-year suspension for a lawyer who attacked the integrity of four judges. The Review Board concluded that the statements were not protected by the First Amendment because the statements were obviously false. The lawyer accused the judges of corruption when they did not agree with him.

Rule 8.2(a) is relevant here. It provides in relevant part: ”

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WEST BEND MUTUAL INSURANCE COMPANY v. RODDY, LEAHY, GUILL & ZIMA, LTD., Dist. Court, ND Illinois 2013 – Google Scholar.

This is an unpublished decision concerning an allegation of legal malpractice in a workers’ compensation case. The plaintiff is the insurance company. The defendants are the lawyers it hired to defend a workers’ compensation case. The court dismissed the complaint, with leave to file an amended complaint. The district court reasoned that the complaint did not state a plausible claim for relief, in that the complaint did not allege specific facts showing a negligent act by the lawyers. Instead, according to the Court, the complaint was couched in broad, general terms.

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IN RE KARAVIDAS, Ill: Supreme Court 2013 – Google Scholar.

This is an important decision by the Illinois Supreme Court. The Court considered whether to impose discipline on an attorney who acted as the executor of his father’s estate. As the executor the attorney took substantial loans from the Estate, although he later repaid the loans. Further, the attorney was a beneficiary of the estate.  Karavidas did not act as the lawyer for the estate. Karavidas was found out when a relative began examining trust records. The probate court removed Karavidas as the executor.

The Supreme Court held that Karavidas breached his fiduciary duty to the estate by making loans to himself. The Court declined to rule on whether he had converted estate property. In a decision that is counter-intuitive, the Court held that there was no proof that Karavidas violated any specific rule of professional conduct and that the charges should be dismissed. The court explains:

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