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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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Dombrowski v. Bulson, 2012 NY Slip Op 4203 – NY: Court of Appeals 2012 – Google Scholar.

This case arose out of a dispute between a client suing his former criminal defense attorney.  The Court noted that New York has rejected nonpecuniary damages in malpractice in civil cases.  It came to the same conclusion for legal malpractice in criminal cases:

“New York courts that have been confronted with the issue have generally rejected the claim that a plaintiff in a legal malpractice action is entitled to nonpecuniary damages arising out of representation in civil proceedings (see e.g. Dirito v Stanley, 203 AD2d 903, 904 [4th Dept 1994] [affirming dismissal of damages claim for emotional pain and suffering]; Wolkstein v Morgenstern, 275 AD2d 635, 637 [1st Dept 2000] [“A cause of action for legal malpractice does not afford recovery for any item of damages other than pecuniary loss so there can be no recovery for emotional or psychological injury”])….

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Cullinan v. FEHRENBACHER, Ill: Appellate Court 2012 – Google Scholar.

This case alleges malpractice.  It  is unusual because the defendants moved for a stay of the case.  A stay stops the proceedings dead in their tracks.  The defendants filed this motion because the alleged malpractice arose out of estate planning and the plaintiff was a party to other lawsuits (with family members and other heirs) involving that estate planning.  The Court held that it had appellate jurisdiction over the motion for a stay of proceedings.

The Appellate Court held that the trial court properly denied the motion for stay of proceedings.

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BEFORE THE HEARING BOARD OF THE.

The ARDC has filed a complaint against a lawyer alleging that he billed false time to a matter while he was working for a law firm.  Obviously, this is a complaint and has not been proven.  The lawyer has the right to counsel and a hearing.  It can be difficult to prove false time cases because you must prove that the lawyer really did no work, even if he claimed he did.  It involves a question of intent, often hard to prove.  The evidence introduced at the hearing must be compelling to sustain a finding of dishonesty.

Edward X. Clinton, Jr.

 

 

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The caption of this case is Evanston Insurance Company v. Riseborough and Jacobson and Riseborough, 1-10-2660.

The opinion is not available online or on the website of the Appellate Court.  I learned of this case when I read an excellent article by the Chicago Daily Law Bulletin.  I am amazed that an opinion of this importance is not published or easily available.  I had to send someone to the Appellate Court clerk’s office to obtain a copy of the opinion.

The case is of importance because it holds that the legal malpractice statute of limitations does not apply to a suit brought by a non-client against an attorney arising out of the performance of professional services.

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Thomas E. Spahn has published an article titled “A Practical Roadmap To The New Illinois Ethics Rules.”  The article compares the 2010 Illinois ethics rules with the ABA model rules and the previous 1990 version of the Illinois Rules of Professional Conduct.  The article can be found at 35 Southern Illinois University Law Journal 27.

It is an understatement to describe this article as thorough and thoughtful.  Spahn also discusses the lengthy comments appended to the Illinois Rules.  The discussion is focused on the needs of the practitioner, not the academic.  As such it is worth reading.  The article is about 90 pages long and it requires close study.

Edward X. Clinton, Jr.

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Filed May 24.

This is an opinion of the ARDC review board, the final step before a disciplinary matter goes before the Illinois Supreme Court.  The ARDC charged the lawyer with failing to disclose her financial interest in six real estate closings because she was the title agent.  Moreover, in four transactions the lawyer represented both buyer and seller.

Lawyers often act as title agents in real estate transactions.  Acting as a title agent is very common.  This opinion tells lawyers that they must disclose that they are acting as a title agent.  Failure to disclose this conflict of interest (even though this occurs every day in Illinois) is misconduct.

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