Articles Posted in National Legal Malpractice Cases

The Florida Court of Appeals has ruled that a lower court dismissal of a legal malpractice action was properly dismissed, but the dismissal should have been without prejudice, permitting the plaintiffs to re-file the action. A corporation had sued its attorneys for negligence and added a consultant as an additional plaintiff, on a third party beneficiary theory.

The law firm moved to dismiss because of deficiencies in the complaint and claiming that the consultant lacked standing. The Appeals Court upheld the lower court dismissal, finding that the complaint “lack[ed] minimal organization and coherence” and was so poorly written that it failed to meet minimum pleading requirements.

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The Appellate Division of the New Jersey Superior Court recently decided that a successor-in-interest’s legal malpractice claim did not relate back to an action filed 13 years earlier by the predecessor’s chief partner. The original action arose from a 1996 property refinance. An attorney with the law firm, which had represented the borrower in the refinancing negotiations with the lender, neglected to file a consent order with the bankruptcy court, which had jurisdiction over the borrower at the time.

The Order was particularly significant to the lender, who intended to sell the mortgage to a third party, because it would have resulted in dismissal of the bankruptcy proceedings. The borrower eventually defaulted on the loan and commenced dissolution proceedings. A third party succeeded to its assets and thereby became acquired the legal malpractice cause of action.

Prior to the dissolution, one of the borrower partners had filed a malpractice suit against the attorneys who neglected to submit the consent order. That case was initially dismissed due to lack of standing, but the court then permitted the partner to sue on behalf of the borrower. In 2008, eleven years later, after a string of dismissals and appeals, an appellate court determined that the partner indeed lacked standing, which allowed the borrower’s successor to proceed with the claim.

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The District of Columbia Court of Appeals has affirmed a trial court’s ruling decision that the negligence of a law firm prevented a client from prevailing in an employment discrimination case. The client sued his former attorneys for legal malpractice when they failed to follow a judge’s order to respond to a motion in an discrimination action against the client’s former employer.

The attorneys filed a complaint, alleging that the client’s former boss told him he was too old to perform his job, terminated him shortly thereafter and replaced him with a younger worker. The employer filed a motion to dismiss the complaint, to which the attorneys never responded, even after a judge ordered them to file a response. The case was dismissed with prejudice, giving rise to the malpractice action.

A trial took place on the legal malpractice claim, resulting in a $230,000 jury verdict for the client. The attorneys appealed, claiming that any negligence was not the proximate cause of any damages suffered by the client. The legal issue was whether or not a reasonable jury could find, based on the evidence, that the attorneys’ negligence prevented Ross from winning his discrimination case.

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The Texas Court of Appeals had affirmed a trial court’s grant of summary judgment for a lawyer defending a legal malpractice claim brought by a former client. The client originally hired the lawyer to represent him in a lawsuit to modify the client’s custody arrangement with his ex-wife. Prior to the trial, the lawyer withdrew from the case by mutual consent. The client then lost the custody case, and then rehired the attorney to appeal the decision.

On appeal, the lawyer overturned one trial court ruling regarding allocation of fees and costs, but failed to overturn the denial of a motion to change venue. The client then sued the lawyer on multiple negligence and breach of contract counts. After two years of discovery, the client had failed to designate exerts within a deadline established by the trial court. The attorney moved for summary judgment on all counts, arguing that the client’s multiple claims amounted to a single legal malpractice claim, which required expert witness testimony. The court agreed and dismissed the case. The client appealed.

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The California Court of Appeals has ruled that a client’s legal malpractice claim against their attorney may be severed and arbitrated under a clause in their fee agreement, allowing claims against a second attorney without such a clause to proceed in the district court. A couple had hired an attorney to help them collect on a promissory note and for outstanding contractor services. They then fired him and hired a second attorney.

The couple claimed that the first attorney had counseled them to initiate non-judicial foreclosure proceedings on the note. The second attorney did the same, and referred them to a third attorney to proceed on the claim for services. However, because the note had already been paid, a court dismissed the foreclosure proceeding and the couple lost their quantum meruit claim for services performed.

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An appellate court in New York recently dismissed a client’s legal malpractice action against her former attorney because the attorney’s negligence did not affect the result of the underlying case. The client alleged that her former attorney failed to pursue an action against her insurance company after it mistakenly cited the wrong policy when denying her claim.

Margaret Schorsch, the client, owned M.R.S. Antiques with her brother David and her mother Marjorie. On September 23, 1995 someone robbed the store of nearly $2 million worth of inventory. Margaret reported the theft to the police and filed a claim with the store’s insurer, Utica Mutual Insurance Company. Margaret believed that it was her brother David who stole the merchandise. She subsequently hired the law firm Moses & Singer LLP to represent her in her claim against her brother and in a separate action regarding the insurance claim.

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October 4, 2010 – A recent Iowa appellate court decision allowed a legal malpractice case to continue against an attorney who failed to ensure that a trust was set up for his former client’s benefit in accordance with a divorce settlement. The plaintiff in the case hired the attorney to represent her in divorce proceedings in 2001. The parties to the divorce reached a settlement, which required the plaintiff’s ex-husband to make alimony and mortgage payments and establish a trust for the plaintiff’s benefit by March 5, 2001. In the event that the ex-husband predeceased the plaintiff, the trust would pay off the mortgage of the home awarded to plaintiff and pay her alimony payments for the five years following his death.

The plaintiff received the initial alimony and mortgage payments, but without the plaintiff’s knowledge, her ex-husband never set up the trust. Subsequently, on May 30, 2005 her ex-husband died and the payments ended eventually resulting in the loss of her home.

On May 25, 2007, the plaintiff filed a legal malpractice claim against her former attorney seeking monetary and emotional damages. The defendant attorney brought a motion for summary judgment asserting that the 5 year statute of limitations (“SOL”) had run out on the plaintiff’s claim. The trial court granted the attorney’s motion asserting that the SOL began to run when the trust was supposed to be established on March 5, 2001.

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