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DRAFT COMPLAINT.

The ARDC has filed a complaint against two lawyers who handled a case on a contingency basis.  The first agreement from 2005 gave them a legal fee of 33 and 1/3 of the gross amount recovered.  After they had obtained a recovery for the client, they lawyers prepared a new agreement in 2008 which increased the fee to 40% of the total amount.  The ARDC alleged that the increased fee constituted overreaching and a breach of fiduciary duty.

Generally, it is taboo to renegotiate a contingency fee agreement after a recovery has been made.  The client is vulnerable and the lawyer, who may be holding funds in a trust account, is in a stronger position.

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Osborne v. Keeney, Ky: Supreme Court 2012 – Google Scholar.

This is a legal malpractice case in which the plaintiff alleged that her lawyer failed to file a lawsuit on time and missed the applicable statute of limitations.  The Kentucky Supreme Court upheld the claim and addressed other issues as well.  The court held that punitive damages are not recoverable against an attorney in a legal malpractice case.

The opinion reaffirms that the plaintiff in a legal malpractice case must prove a case within a case.  The court set forth the method for proving the case within a case requirement:

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Allison v. Commission for Lawyer Discipline, Tex: Court of Appeals, 14th Dist. 2012 – Google Scholar.

The Texas Court of Appeals has affirmed a suspension for a lawyer who missed deadlines in an immigration matter and whose client was deported as a result.  This is a case where a lawyer’s neglect of a matter results in professional discipline.  The court rejected the lawyer’s argument that the client was difficult to reach.

The rule is quoted below:

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Filed November 30.

The ARDC Hearing Board has recommended a six month suspension for a lawyer who falsely notarized a quit claim deed and then, when he received an inquiry from the ARDC, falsely informed the ARDC that the signatures of his clients were genuine.  The panel explains:

“

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Excess Insurer Can Bring Legal Malpractice Claim Against Lawyer

ACE AMERICAN INSURANCE CO. v. SANDBERG, PHOENIX & VON GONTARD, PC., Dist. Court, SD Illinois 2012 – Google Scholar.

This is a dispute between an insurer and the lawyers who were hired to defend a case. Illinois has recognized that an insurance company has a right to sue defense counsel for malpractice. Illinois has never decided whether to allow an excess insurer to bring such a lawsuit.

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Lawyer prevails in dispute with malpractice insurer in legal malpractice case

Foster v. WESTCHESTER FIRE INSURANCE COMPANY, Dist. Court, WD Pennsylvania 2012 – Google Scholar.

This is a dispute between a lawyer and his legal malpractice insurer. One of the major trends in recent years is the coverage lawsuit filed by the insurance company against the lawyer.  Legal malpractice insurance is usually purchased for a one-year period.  The insurer agrees to indemnify and defend the insured against any and all claims arising in that year and only that year.   The policies are known as “claims made” policies, which means the insurance company must receive the claim during the policy period or there is no coverage.

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Immigration Malpractice

Miranda v. Said, Iowa: Court of Appeals 2012 – Google Scholar.

This is an unusual case – legal malpractice in the immigration setting.  Plaintiffs won a verdict at the trial but appealed on the grounds that the trial court wrongfully barred their claims for mental distress damages, punitive damages and lost chance damages.

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IN RE GLEASON, Court of Appeals, 11th Circuit 2012 – Google Scholar.

A bankruptcy lawyer was unhappy with a ruling.  What he did next netted him a 60 day suspension from practicing before the bankruptcy court.

The lawyer wrote a letter to the judge and included a bottle of wine with the letter.  The result was a legal ethics mess and a suspension.

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Harkins v. Paxton, Mich: Court of Appeals 2012 – Google Scholar.

This is a legal malpractice case. Plaintiffs (referred to as “the Judges”)  claimed that they lost an underlying case (a Section 1983 action) because of the negligence of their attorney.  The attorney, who was retained by an insurance company, moved to dismiss on the ground that the plaintiffs lacked standing.  He argued that there was no attorney-client relationship, apparently because he was retained by the insurance company.

The trial court granted the motion, but the Michigan Court of Appeals reversed.  It explained:

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Filed October 5.

This is a disciplinary case against Herbert Arthur Bates, an attorney in Illinois.  Bates was retained by a convicted criminal to handle his appeal.  Bates was paid $10,000.  Unfortunately, he missed numerous deadlines and the appeal was dismissed.  He also failed to return the transcripts to the inmate so the inmate could do the appeal by himself.  The ARDC Hearing Board recommended a suspension of eighteen months.  Bates ultimately refunded the money he was paid to handle the appeal.

The Panel explains:

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