Articles Posted in Legal Malpractice Issues

A Florida appellate court has reversed a summary judgment in favor of an attorney in a legal malpractice action. In Hodge v. Cichon the beneficiary of a will brought an action against an attorney who represented a court appointed guardian of an individual who later died. Five years before his death, the individual had deeded real property to the beneficiary, and also had signed documents, creating a family trust for tax purposes.

The individual’s son initiated proceedings in probate court seeking a declaration that his father was not competent to create the trust. Prior to a hearing on the issue, the individual executed a will giving his estate to the beneficiary. The probate court ruled that the decedent was partially incompetent, appointed a guardian for him, and ordered that the prior estate plan be reinstated. The individual died two years later, but the attorney representing the court appointed guardian failed to implement the family trust in violation of the probate court’s order.

The beneficiary then sued the attorney for malpractice alleging that the attorney’s misconduct significantly reduced his share of the estate. The attorney successfully moved for summary judgment on the basis that there was no attorney-client relationship, that the family trust was defective, and would not have been allowed by the IRS. The client appealed.

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A Wisconsin appellate court has affirmed a summary judgment in favor of an attorney in a legal malpractice case. In Lawton & Cates, S.C. v. Alswager, a client sued his former attorney for negligently representing him in criminal proceedings. The client was charged with operating a vehicle while intoxicated and hired the attorney two months prior to the trial.

The client claimed that he was involuntarily intoxicated because he mistakenly took his wife’s sleeping aid prior to consuming alcohol. The attorney agreed to have the client’s blood sample analyzed and retain an expert witness for the trial. However, the week of the trial the test results had not come back and the expert informed the attorney that he was unavailable to testify. The attorney unsuccessfully moved for a continuance, but filed an affidavit of the expert explaining the effects of ingesting the sleeping aid. Nevertheless, the client was convicted.

The attorney did not receive the blood test results until after the trial, but they ultimately revealed that the client had ingested one sleeping pill. The client then filed a legal malpractice claim against the attorney. The attorney successfully moved for summary judgment and the client appealed.

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A New York appellate court has reversed the dismissal of a legal malpractice case. In Henneberry v. Borstein, a woman sued her attorney for negligently representing her in arbitration proceedings against a former employer. The client had lost her case in the arbitration. She then brought a legal malpractice against the attorney who represented her in the proceeding.

The client filed an action pro se. She served a copy of the summons on the attorney, but did not serve the complaint at the same time, but did serve it shortly thereafter. The attorney moved to dismiss on the basis of improper service. The client then moved for an extension of time to effect service.

The court dismissed the action without prejudice and granted the client’s motion, conditioned upon her paying another filing fee and properly serving a summons and complaint within 30 days. The client then filed a new complaint, but the court dismissed the new filing as untimely.

The client appealed both dismissals. The appellate court reversed the first order on the basis that it was inconsistent to dismiss the complaint, while at the same time allowing the client an extension of time to effect service. The court further ruled that it was in the interest of justice to allow the extension because the client made a good faith attempt to effect service and the attorney had knowledge of the complaint soon after its filing. The court then reversed the dismissal of the new complaint, holding that that it was in reality an amendment of the original complaint. The case was remanded for further proceedings.

Decision: Henneberry v. Borstein

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A New Jersey appellate court has affirmed a summary judgment in favor of an attorney in a legal malpractice case. In Kirby v. Chase Home Finance, a woman brought a malpractice action against an attorney who represented a bank for the refinance of a woman’s home.

The settlement agent for the bank in the refinance had retained the attorney, who did not attend the closing , but did notarize the settlement statement, reflecting the disbursement of funds. Later, the woman learned that the terms of her refinance were different that what she had been promised. She then filed an action against the attorney, alleging that the attorney’s conduct was responsible for the differing terms of the refinance.

The attorney moved for summary judgment, which the court allowed and the client appealed. The appellate court affirmed the lower court decision, finding that the attorney had no duty to the woman because there was no attorney-client relationship. The court reasoned that the woman did not have a retainer agreement with the attorney and the fact that the attorney notarized the settlement statement was only a verification of the the accuracy of the disbursements at the closing.

Decision: Kirby v. Chase Home Finance

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A New Jersey appellate court has affirmed a summary judgment in favor of an attorney in a legal malpractice action. In Goodwin v. O’Donnell.doc, a client sued his former attorney for negligently representing him in his divorce proceedings.

The attorney had recommended that the client pursue arbitration because it would be cheaper and more expeditious than litigation. The client, his former wife, and her attorney all entered into an agreement to arbitrate the matter. Before the arbitration took place, the client fired the attorney.

The arbitration eventually concluded 15 months later and cost the client over $200,000.00. The client then sued the attorney for malpractice. The attorney successfully moved for summary judgment and the client appealed.

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The Georgia Court of Appeals has affirmed a lower court ruling denying summary judgment to an attorney in a legal malpractice case. In Duncan v. Klein, a client sued his former attorney for improperly advising him that his employment discrimination claim had no merit. Relying on the attorney’s advice, the client did not file suit against his employer.

The client subsequently attended law school, and there formed the belief that he did indeed have a valid claim against his former employer. He subsequently filed a suit against his former employer, alleging discrimination and seeking back pay. However, a court later ruled that portions of his wage claim were time barred by the applicable statute of limitations.

The client and the employer eventually settled, and thereafter, the client then sued his former attorney on the basis that his advice reduced the wages, which he was able to recover. The attorney moved for summary judgment, which the court denied. He appealed.

The appellate court affirmed the lower court ruling, reasoning that there was sufficient evidence from which a jury could conclude that the attorney’s conduct caused the delay in filing. The court relied on the client’s statements that he would have filed an action, but for the attorney’s advice, and the fact that he did eventually bring an action. The case was remanded for further proceedings.

Decision: Duncan v. Klein

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A New Jersey appellate court has reversed an order, dismissing a legal malpractice action. In Swain v. Alterman, clients sued their former attorney for negligently representing them in a personal injury action.
The attorney never filed a complaint, thereby allowing the statute of limitations to expire.

The clients then sued the attorney for legal malpractice. The attorney responded, claiming that he had forwarded a letter to the clients terminating his representation before the statute of limitations had expired. The clients of course claimed that they never received the letter.

In New Jersey, a plaintiff in a legal malpractice action normally must submit an affidavit of a legal expert alleging that the attorney’s conduct fell below the standard of care. An affidavit is not required, however, if the breach can be proved without expert testimony. The clients had not filed an affidavit, believing that the failure to timely file the action fell within this exception. The trial court allowed the attorney’s motion to dismiss and the clients appealed.

The attorney took the position that the exception did not apply because there was no attorney-client relationship following his termination letter, and therefore expert testimony was required. The appellate court disagreed, finding that the failure to file within the statute of limitations could be decided without expert testimony. The court also reasoned that the complaint sufficiently alleged the existence of an attorney-client relationship, and that any discrepancy was for the fact-finder to determine. The case was remanded for further proceedings.

Decision: Swain v. Alterman

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A New York appellate court has overruled a trial court that had granted a motion to dismiss a legal malpractice claim. In Phoenix Erectors, LLC v. Fogarty, a construction contractor sued its former attorney for negligently failing to protect its claim against a surety company.

A general contractor had filed a breach of contract action in New York against the client, who was a subcontractor on a construction project. The general contractor had obtained a payment bond from the surety. The subcontractor then hired the attorney to file a separate action against the general contractor and the surety in New Jersey seeking payments due under the contract.

The attorney elected to consolidate the two claims into a single action in the state of New York. The attorney prepared a stipulation, which dismissed the New Jersey case “with prejudice” and made the surety a third party defendant only in the New York action. The case went to trial before a jury in New York, resulting in a verdict and judgment for the client against the general contractor.

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The Court of Appeals of Georgia has affirmed the denial of an attorney’s motion for partial summary judgment in a legal malpractice claim. In Villanueva v. First American Title Insurance Company, an insurer brought a negligence claim against an attorney who represented a client in the refinance of a mortgage.

At the time of the refinance, the subject property was subject to two prior mortgages. The new lender prepared closing instructions, requiring the attorney to pay off both mortgages. Following the closing, loan proceeds were deposited into the attorney’s escrow account. However, the attorney’s law associate stole the funds and the prior mortgages were never satisfied.

The lender had required the borrower to procure title insurance for the transaction. The title policy entitled the lender to reimbursement for losses arising from the loan transaction, and gave the insurer an assignment of the lender’s rights against the parties to the loan and against the closing attorney.

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A California appellate court has affirmed the dismissal of a legal malpractice action. In Kassab v. Leff, a client sued his former attorney for negligently representing him in criminal proceedings. The client was tried and convicted of numerous drug related crimes. The client then filed a notice of appeal, but twice defaulted. He then brought a malpractice claim against the attorney.

The attorney successfully moved to dismiss the complaint and the client then appealed. Under California law, in order to prevail on a legal malpractice claim arising out of a criminal case, the plaintiff must prove his actual innocence in addition to the standard elements of negligence. To survive a motion to dismiss, the complaint must plead innocence by showing post-conviction exoneration or at least the diligent pursuit of post-conviction relief.

The appellate court affirmed the motion to dismiss finding that the client’s complaint did not sufficiently allege his actual innocence and it could not be cured by a further amendment. The court reasoned that merely filing a notice of appeal did not constitute a diligent pursuit of post-conviction relief.

Decision: Kassab v. Leff

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