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VALUKAS v. BOTTI MARINACCIO, LTD, Dist. Court, ND Illinois 2013 – Google Scholar.

This is a decision dismissing a divorce malpractice claim on statute of limitations grounds. The plaintiff, James Valukas, hired the defendant law firm to represent him in his divorce. Valukas claimed that the law firm negligently drafted a marital settlement agreement, allowing his ex-wife to make a claim for a portion of the payout on certain stock options.

Defendant raised a statute of repose defense, arguing that the alleged error occurred outside of the limitations period. The statute of repose bars any claim against an attorney that occurred more than 6 years prior to the filing of the lawsuit.

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Filed June 12.

The respondent, an attorney, was the President and Treasurer of her condo association. She allegedly used $5,666.29 in condominium funds for personal purchases. The Condominium association apparently reported her to the ARDC which filed a complaint. The Hearing Board states that the respondent had $175,000 in student loans.

This is another example of a lawyer engaging in misconduct in non-legal duties and suffering punishment as a result. Also, the conversion was extremely easy to prove because the association’s funds were used for personal items.

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KLINGELHOEFER v. PARKER, GROSSART, BAHENSKY & BEUCKE, LLP, 20 Neb. App. 825 – Neb: Court of Appeals 2013 – Google Scholar.

This case concerns whether a member of an LLC can sue for legal malpractice the lawyers who represented the entity. The Nebraska Court of Appeals held that the plaintiff, Donald Klingelhoefer, lacked standing to sue.

Nebraska follows the traditional rule that the shareholder of a corporation or member of a limited liability company lacks standing because the corporation or LLC suffered the injury, not the shareholder or member.

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BEFORE THE HEARING BOARD.

This is a disciplinary complaint filed by the ARDC against a lawyer. The ARDC alleges that the 93 year old client entrusted $80,000 to the lawyer. The lawyer used $79,963 of the funds for his own expenses and did not use any of the money for the benefit of the elderly client. Elder abuse is a fast-growing area of the attorney discipline regime.

This is a complaint only. It has not been proven. If true, it is a dreadful story.

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This case is a somewhat routine affirmance of a bank fraud conviction and the rejection of an ineffective assistance of counsel claim. The Defendant alleged that her lawyer rendered ineffective assistance of counsel by failing to call certain witnesses at the trial of the case. In the criminal world, an ineffective assistance claim is equivalent in many ways to a legal malpractice claim. If there is a finding of ineffective assistance of counsel, the defendant is sometimes entitled to a new trial.

Here, the defendant fired her lawyers, but was assisted by stand by counsel at her trial. Counsel decided not to call certain witnesses because the potential risk of their negative testimony far outweighed the potential reward. This case makes it clear that these decisions are for the lawyer to make at trial, except in unusual circumstances.  The Seventh Circuit explains the rules applicable to witness testimony issues: “A “lawyer’s decision to call or not to call a witness is a strategic decision generally not subject to review. The Constitution does not oblige counsel to present each and every witness that is suggested to him.” United States v. Best, 426 F.3d 937, 945 (7th Cir. 2005) (quoting United States v. Williams, 106 F.3d 1362, 1367 (7th Cir. 1997)). Indeed, Parker acknowledges that the decision whether to call a witness was her attorney’s to make.”

Comment: the point here is that it is almost impossible to win a legal malpractice case on the ground that the lawyer failed to call a witness. That decision was the lawyer’s to make in his professional judgment.

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EXACT SOFTWARE NORTH AMERICA, INC. v. DeMOISEY, Court of Appeals, 6th Circuit 2013 – Google Scholar.

This is a dispute between an attorney and a client concerning an attorney lien. Such disputes are common. This case illustrates the correct way to protect a disputed legal fee with an attorney lien.

The Sixth Circuit has affirmed a legal fee award of $1.4 million to a lawyer who brought proceedings to enforce an attorney lien. The underlying dispute was a software licensing dispute between two companies, which occurred in the federal district court. Infocon was to receive a $5 million settlement from Exact Software, Inc. Just before the settlement was finalized, Infocon fired its lawyer, J Fox DeMoisey. DeMoisey placed a charging lien on the proceeds of the litigation.  The district court froze the disputed portion of the settlement ($1.2 million) pending the outcome of litigation.

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CLAUSON & ATWOOD v. PROFESSIONALS DIRECT INSURANCE CO., Dist. Court, D. New Hampshire 2013 – Google Scholar.

This is yet another development in the huge and growing area of litigation between lawyers and their legal malpractice insurers.

Here, the insurance company obtained summary judgment against the lawyers on the ground that the claim was not made in the policy period. Once again, the lawyers did little to help their own cause – they failed to promptly report the claim to the insurance company.

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Filed December 28.

This case involves a lawyer who was the executor of his father’s estate and who, allegedly, took loans from the estate. The prosecution follows a recent trend – the ARDC has often prosecuted lawyers for conduct that does not relate to their legal work if the ARDC believes that the conduct was improper, deceptive or fraudulent. In almost all of these cases, the lawyer took some action that caused financial harm to others.

The ARDC hearing board found that there were violations of the rules and recommended a one year suspension of the lawyer.

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Hospital Sues Law Firm For Losses Related To Lehman Brothers

PASSAVANT MEMORIAL AREA HOSPITAL ASSOCIATION v. LANCASTER POLLARD & CO., Dist. Court, CD Illinois 2013 – Google Scholar.

This is a case alleging legal malpractice in the context of corporate law. Passavant Memorial Hospital has sued a law firm that allegedly provided negligent legal advice concerning a commercial transaction. The Hospital, acting on advice of the lawyers, attempted to terminate a bond interest swap. The notice of termination was sent by fax, not by regular mail. Lehman Brothers claimed it had no record of receiving notice. Litigation ensued and the Hospital was required to pay $2,975,000 to settle the litigation.  The lawyers were negligent because they sent the termination notice by fax, instead of by mail.

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BEFORE THE HEARING BOARD.

The ARDC has brought a complaint against an Illinois lawyer, accusing him, among other things, of failing to diligently handle litigation that was assigned to him in his firm, failing to keep clients informed and, most seriously, preparing a fake court order to cover up his own negligence and providing a copy of that court order to a partner in the firm.

Every now and then there is a case like this where someone makes a mistake by missing a deadline in responding to a motion, loses the motion and then tries to cover it up with misrepresentations.  This is a sad case. The negligent act, failing to respond to a motion for summary judgment, caused a judgment to be entered against a client. Had the bad result and the error been communicated to the client promptly, the lawyer would have been terminated, but would not be facing professional discipline.

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