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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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ARDC claims conflict of interest.

Filed August 24.

This case illustrates one of the problems with the ARDC process.  The underlying conduct took place in 2004.  The ARDC filed a complaint against the respondent in December 2008!  She answered in February 2009, but the case did not come to hearing until January 2012.  The decision was issued on August 24, 2012.

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Legal Malpractice Case From North Carolina

Royster v. McNamara, 723 SE 2d 122 – NC: Court of Appeals 2012 – Google Scholar.

This is a legal malpractice case arising out of a litigation matter.  The plaintiff, Royster, was a defendant in the underlying case, a fraud case.

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Insurance coverage dispute

Goodman v. MEDMARC INS., 2012 Ohio 4061 – Ohio: Court of Appeals, 8th Appellate Dist. 2012 – Google Scholar.

This case involves an insurance coverage dispute. The lawyer was the policyholder and he was sued for legal malpractice. An Ohio court has ruled in favor of an attorney who tendered a claim to his carrier but was denied coverage.  Such litigation is common. The risk to the lawyer is that he ends up litigating two cases (a) the underlying malpractice case; and (b) the declaratory judgment case against the insurer.

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ARDC Claims Legal Fee Was Unreasonable

BEFORE THE HEARING BOARD OF THE.

 

One portion of the allegations against this lawyer concern an unreasonable fee.  The lawyer represented an 84 year old woman who lived in a retirement community.  The lawyer prepared routine estate planning documents and charged her $2500, which was paid.  The next several paragraphs of the complaint allege as follows:

 

“6. Between November 21, 2009 and January 23, 2010, Respondent did no additional work for Mrs. Meyer. In January, 2010, Respondent presented Mrs. Meyer with a statement which described the services rendered as: “Will Review/Possible Changes, Power of Attorney; General, Power of Attorney; Health Care, Review of Stock Portfolio Fidelity Investments, Review of Other Financial documents, Bank Accounts, Etc., Travel to Peace Village, 11-10-2009 and 11-17-2009,” the exact services set forth in the November 18, 2009 statement. Respondent merely added the date of January 23, 2010 and inserted the words “Retainer Fee for 2010.” The amount of the statement was $25,000.

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Huber v. MUES, 2012 Ohio 2540 – Ohio: Court of Appeals, 2nd Appellate Dist. 2012 – Google Scholar.

This case would have been timely in Illinois, or many other states, but it was filed in Ohio, which has a one-year statute of limitations for legal malpractice.

Ohio does observe the discovery rule: “Claims arising out of an attorney’s representation are legal malpractice claims regardless of how they are pled. Katz, Teller, Brant & Hild, L.P.A. v. Farra, 2d Dist. Montgomery No. 24093, 2011-Ohio-1985, ¶ 13. Therefore, Huber cannot avoid the statute of limitation by characterizing his claim as alleging ordinary negligence.

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