Articles Posted in Legal Malpractice Issues

The Supreme Court of Montana has affirmed a summary judgment for an attorney in a legal malpractice action, finding that the claim was barred by a three year statute of limitations. In Polejewski v. Lulf-Sutton, a client sued her former attorney, alleging negligent representation in her criminal proceedings.

The client was charged with several counts of animal cruelty and related crimes. The client maintained that her attorney told her she could win the case at trial. The attorney then recommended a plea agreement, which the client accepted. The client pleaded guilty to nine counts of failure to vaccinate and tag animals and no contest to one count of cruelty to animals. Sentencing took place several days later.

Unhappy with the sentence and with her attorney, who successfully moved to withdraw, the client filed a notice of appeal. However, the trial court ruled that the client had waived her right to appeal by signing the plea agreement.

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The Supreme Court of New Jersey has ruled that a criminal defendant’s legal malpractice claim was not barred by a one year time limit for filing a notice of claim against a public employee. In Rogers v. Cape May County Office of Public Defenders, a client sued his former attorney for negligently representing him during his criminal proceedings.

At his trial for drug related charges, the client’s judicially assigned attorney attempted to show that the arresting officer could not distinguish the defendant from his brother. The attorney intended to switch the two brothers’ clothing, seating the defendant sit at the back of the courtroom and the brother at counsel’s table. The attorney hoped to examine the police officer to determine if he could correctly identify the defendant. The state intervened before the attorney was able to carry out his plan. However, the defendant admitted to the scheme on cross-examination, which, he argued, damaged his credibility with the jury.

The defendant was convicted and sentenced to 14 years in prison. Six years later the defendant filed a petition for post-conviction relief based on ineffective assistance of counsel. The trial court denied the petition and the client appealed. The appellate court reversed the conviction finding that the “defendant-substitution plan” constituted deficient representation. The appellate court then remanded the case for a new trial.

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A California appellate court has affirmed a summary judgment in favor of an attorney in a legal malpractice case. In Schneider v. Blanchet, a client sued her attorney for negligently representing her in divorce proceedings.

The client’s former husband ran an investment firm and an issue arose over whether he had overpaid an employee in order to deflate the value of his business. The husband maintained that the payments were within the bounds of his commission agreement with the employee. However, the client wished to pursue the claim.

In a detailed letter to the client, the attorney explained that the client had to elect whether to agree to mediation or file suit. The letter outlined the costs and benefits of pursuing litigation, including the high unlikelihood of prevailing on a breach of fiduciary duty claim for the excess payments, and the possibility that the court might make a “finding of needs”, which would be substantially less than what the husband was then offering for support. The client agreed to go to mediation, but advised the attorney to “go after” the excess commission issue.

Several months later, the parties mediated the case, discussed the commission issue, and even heard statements of the husband to gauge his credibility on the issue. The mediation resulted in a settlement agreement. However, several weeks later the client was unhappy and wanted to pursue a more favorable agreement.

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The South Carolina Court of Appeals has reversed a partial summary judgment in favor a client where the lower court held that the statute of limitations had not expired on a legal malpractice claim. In Kimmer v. Wright, a client sued his former attorney for negligent representation in a worker’s compensation claim. The client had been injured in a work related motor vehicle accident.

The client retained the attorney to represent him in the worker’s compensation claim and also a third party personal injury action against the driver of another vehicle. The attorney settled the third party claim, but failed to obtain the prior consent of the client’s employer.

The client filed his claim with the Worker’s Compensation Commission, who ordered that the injuries were compensable, but was barred because the settlement constituted an election of remedies. The client then sought review in the trial court, which reversed the Commission’s Order. The employer appealed.

The attorney informed the client that he might have a legal malpractice claim and that he should consider hiring another lawyer. The client declined and then signed an acknowledgement of his potential claim.

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A Louisiana appellate court has affirmed a summary judgment in favor of an attorney in a legal malpractice action. In Walker v. Harris, a client sued his former attorney alleging that the attorney negligently represented him in a personal injury action arising from a motor vehicle accident.

At one point in the proceedings, the client had failed to attend a medical examination, claiming he was not required to do so because a stay order had allegedly been entered in the matter. However, the trial court disagreed and found the client in contempt of its earlier order that he attend the examination. The court then entered a judgment for the defendants, dismissing all claims related to the client’s back injuries. The client then fired the attorney and retained new counsel.

The new attorney filed a motion to vacate the judgment, which the trial court denied. The attorney then filed two separate writs for supervisory review of the trial court’s denial. Both were rejected. The client elected not to pursue an appeal on the adverse judgment, settling instead with the personal injury defendants. The settlement agreement did not preserve any right for the client to seek an appeal or bring any further claim for the client’s back injuries.

The client then filed a legal malpractice action against the first attorney. The attorney moved for summary judgment, alleging that the malpractice claim was barred because the client’s settlement precluded the attorney from proving that he was not the cause of the entry of judgment. The trial court granted summary judgment for the attorney and the client appealed.

The appellate court affirmed, reasoning that a malpractice claim could not properly be based on a non-reviewable judgment. Further, the court ruled that the settlement agreement was in full satisfaction of all injuries resulting from the accident, which necessarily included a related legal malpractice claim. Therefore, the client was estopped from seeking additional recovery with the malpractice claim.

Decision: Walker v. Harris

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The Connecticut Appellate Court has affirmed a judgment after a bench trial in favor of an attorney for unpaid legal fees from a former client and rejected the client’s counterclaim for legal malpractice. In O’Connell, Flaherty and Attmore, LLC v. Richter, an attorney brought a claim against his former client to recover unpaid legal fees related to the client’s divorce proceedings. The client then brought a counterclaim for legal malpractice, alleging that the attorney’s negligent conduct jeopardized her case. She specifically claimed that the attorney had failed to adequately conduct discovery of her former husband’s assets and that his threat to withdraw from the case also harmed her.

The client, who represented herself at trial, failed to call an expert witness to testify as to the appropriate standard of care for a lawyer and in what manner her attorney’s conduct had breached that standard. The trial court denied the client’s request for a continuance to permit her to obtain an expert, but did allow the former attorney to testify as to the proper standard of care. However, the trial court ruled in favor of the attorney, finding that the client had failed to establish each of the necessary elements of a legal malpractice claim.

The client then appealed, alleging that expert testimony was not necessary to prove her claim, and that alternatively, even if expert testimony was required, the attorney’s own testimony on that issue was sufficient to establish a breach. In Connecticut, expert testimony is normally needed to prove legal malpractice. However, in rare instances, the conduct so obviously breaches the standard of care that it would be clear even to a layperson. The appellate court ruled that the attorney’s conduct in this case was not such an obvious case, and therefore an expert was necessary to establish the proper standard of care. The appellate court also found that the attorney’s testimony did not demonstrate a breach of his duty, and therefore, the appellate court affirmed the lower court judgment.

Decision: O’Connell, Flaherty and Attmore, LLC v. Richter

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An appeals court in Texas has affirmed the dismissal of a legal malpractice suit. In Bailey v. Schneider, a client, who had been sentenced to thirty years in prison, retained an attorney to file a petition for a writ of habeas corpus on his behalf. The attorney had allegedly been late in filing the writ and the client then brought a legal malpractice action against the attorney.

The attorney then moved to dismiss the complaint on the grounds that it was frivolous and/or malicious because the claims were barred by the statute of limitations. Under Texas law, the statute of limitations for legal malpractice claims is two years. The client had not filed his suit until seven years after the attorney allegedly filed the petition late. Therefore, the trial court granted the dismissal. The client then appealed.

When determining whether a claim is frivolous or malicious one of the factors a court may consider is whether the claim has any basis in law or fact. Since the client’s imprisonment did not toll the statute of limitations, the claim was barred, which negated any legal basis for the claim. Thus, the appellate court found that the dismissal of the suit as frivolous was appropriate.

Decision: Bailey v. Schneider

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A California appeals court has reversed a summary judgment in favor of an attorney in a legal malpractice action. In Cohen v. Fried & Goldsman, a client brought a legal malpractice claim against her former attorney who represented her during her divorce proceedings. The client alleged that the attorney negligently failed to discover essential information about her former husband’s acquisition of marital property prior to her entering an agreement in settlement of the divorce.

During the marriage, the husband had plead guilty to tax evasion. At that time, the IRS had also been attempting to collect a much larger sum from the husband’s business partner. Under the husband’s plea agreement, he had agreed to pay the delinquent tax amount to the partner in exchange for the partner’s interest in the company, allowing the IRS to claim that money from the partner.

Since the husband had acquired his partner’s interest during the marriage, it should have been included as community property in the divorce settlement. However, the attorney failed to discover the terms of the plea bargain, and incorrectly concluded that the husband’s interest was separate property, which resulted the wife’s l loss of her property interest in the business.

The wife filed a legal malpractice claim against her attorney. The attorney successfully moved for summary judgment on the basis that the client had failed to bring her claim within the one year statute of limitations. The client then appealed,relying on the discovery rule as an exception to the one year statute.

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A New Jersey Appellate Court has affirmed a jury verdict in favor of an attorney to recover legal fees from a former client, who had made a counterclaim alleging the the attorney committed malpractice.  In Wallack v. Jordan, an attorney sued his former client to collect unpaid legal fees related to a divorce proceeding and a related domestic violence case.  The client then filed a counterclaim that the attorney had unnecessarily prolonged the proceedings, which resulted in excessive fees.  The two cases were consolidated upon consent of the parties and tried together.

The jury found in favor of the attorney in both matters and awarded him a judgment for the outstanding fees.  The client appealed, alleging that the court had improperly admitted evidence about the client’s conduct during the divorce, including the allegations of domestic violence.

The appellate court upheld the jury verdict, finding that the trial court had not abused its discretion by admitting the evidence..  The court reasoned that the admitted evidence, referring to the domestic violence matter, was relevant to the reasonableness of the attorney’s fees.  The court further explained that the trial court’s limiting instruction cured any potential misuse of the evidence by the jury and therefore the client had not been prejudiced.  
Decision: Wallack v. Jordan

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A California appellate court has affirmed a ruling sustaining a demurrer without leave to amend a first amended complaint alleging legal malpractice.  In Siegen v. Lewis., a client filed a legal malpractice action against his former attorney alleging the attorney negligently represented him in a civil action against another individual.  The client alleged that the attorney’s failure to request a case management conference, which resulted in the case being dismissed, constituted legal malpractice.

The client’s original pro se complaint was successfully demurred by the attorney because the client failed to plead sufficient facts to constitute a cause of action. However, the court granted the client leave to amend his complaint.  The client then filed his first amended complaint, which the attorney again successfully demurred, but the court did not allow the client to amend his complaint a third time.  The client then appealed.

Under California law, the plaintiff bears the burden of proving that there is a reasonable possibility that an amendment can cure the defects of a complaint. If a complaint cannot be cured, then a dismissal without leave to amend is appropriate.

The appellate court found that the client had failed to meet this burden. It reasoned that the client had failed to show that the attorney’s conduct fell below the standard of care because the client had alternative methods of remedying the attorney’s failure to schedule the conference. This included calling the court himself or seeking a writ to compel the attorney to schedule the conference. The client was therefore unable to show that an amendment would have cured the defects of his complaint, and thus the trial court had correctly dismissed the complaint without leave to amend.  
Decision: Siegen v. Lewis.doc

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