Boston Legal Malpractice Lawyer

May 29, 2013

Wilson v. Gladstone, No. A-1774-11T1: New Jersey Appellate Court Affirms Summary Judgment in Favor of Attorney in Legal Malpractice Case

by Boston Lawyer

A New Jersey appellate court has affirmed summary judgment in favor of an attorney in a legal malpractice action. In Wilson v. Gladstone, a client landowner, who was part of a group of similarly affected property owners, hired his own attorney to challenge a city ordinance, which rezoned districts in a way that negatively affected their properties. After a trial, the court found in favor of the city, and an appellate court affirmed the decision.

The client subsequently brought a legal malpractice action against the attorney, alleging that he negligently failed to retain a hydrogeologist to testify as an expert witness at trial. The trial court granted summary judgment in favor of the attorney, and the client appealed.

The appellate court affirmed, finding that the attorney had used reasonable professional judgment in declining to use a hydrogeologist as an expert. The attorney’s decision was based on the plaintiff group’s collective decision not to call the hydrogeologist because of financial constraints. The court determined that the client, by his conduct, had consented to being a part of the group, and submitted to its strategic decisions. As a result, the attorney had not breached the standard of care owed to the client, and summary judgment was proper.

Decision: Wilson v. Gladstone

May 18, 2013

Haddy v. Caldwell, No. 08-12-00131-CV: Texas Appellate Court Affirms Summary Judgment in Favor of Attorney in Legal Malpractice Action

by Boston Lawyer

A Texas appellate court has affirmed a summary judgment for an attorney in a legal malpractice case. In Haddy v. Caldwell, a client retained an attorney to bring a medical malpractice suit against United States Army physicians, who treated the client’s then wife. The trial court granted summary judgment in favor of the doctors and the case was dismissed.

The client then sued the attorney for negligently failing to designate an expert witness and file an expert report in the medical malpractice suit. The attorney moved for summary judgment, which the trial court granted. The client appealed.

The appellate court affirmed. In a legal malpractice case arising from litigation, in addition to proving that the attorney was negligent, the plaintiff must also prove the “case within the case”. This means that he must show that he would have succeeded in the underlying suit but for the attorney’s negligence.

Here, the client submitted an affidavit of a medical professional with his opposition to the attorney’s motion for summary judgment, but failed to present expert witness testimony regarding the attorney’s negligence. Therefore, summary judgment was appropriate because the client could not show that the attorney’s failure to designate a medical expert constituted a breach of the standard of care for a reasonable lawyer.

Decision: Haddy v. Caldwell

May 10, 2013

Roy D. Mercer, LLC v. Hon. Matthew G. Reynolds, Docket No. 33,830: Supreme Court of New Mexico Finds Impermissible Conflict of Interest in Legal Ethics Case

by Boston Lawyer

The Supreme Court of New Mexico has ruled that an attorney and his law firm are disqualified from representing a client because of a conflict of interest. In Roy D. Mercer, LLC v. Hon. Matthew G. Reynolds, a landowner hired a law firm to defend it in a case brought by a railroad company seeking to enforce an easement.

The railroad company had hired a contractor to construct a series of berms, dykes and channels to divert water away from the railway and through the landowner’s property. The contractor was also named in the suit and hired a separate law firm to defend the company.

Two years into the lawsuit, the landowner retained another law firm and it’s prior attorney’s firm disbanded. One of the associates from that firm then joined the law firm that represented the contractor. The contractor’s firm immediately sent a letter to the landowner’s firm informing them that the associate would be screened from the case and requested that the landowner sign a waiver of the conflict of interest.

May 1, 2013

Frasco, Caponigro, Wineman, & Scheible, PLLC v. IGC Management, Inc., No. 308405: Michigan Court of Appeals Affirms Summary Judgment In Favor of Attorney In Legal Malpractice Case

by Boston Lawyer

A Michigan appellate court has affirmed a summary judgment in favor of an attorney in a legal malpractice action. In Frasco, Caponigro, Wineman, & Scheible, PLLC v. IGC Management, Inc., a sub-contractor hired an attorney to recover funds from a general contractor. The general contractor later filed for bankruptcy, and a bank was found to have a priority security interest against the contractor’s assets.

The attorney, who also represented other unpaid sub-contractors, negotiated a mediated settlement with the financers of the project. However, the original sub-contractor did not assent to the terms of the settlement. The attorney informed the mediator and requested that the agreement contain a separate signature line for the sub-contractor, which the mediator failed to include. Nevertheless, the attorney executed the agreement and the bankruptcy court found that the sub-contractor was bound by its terms because the attorney signed on its behalf.

The sub-contractor then sued the attorney for legal malpractice. The attorney moved for summary judgment, which the trial court granted. The sub-contractor appealed.

The appellate court affirmed, finding that although the attorney’s conduct may have breached his ethical duties, it did not constitute malpractice. Under Michigan law, liability for settling a case without a client’s consent stems from a bad faith breach of contract rather than negligence. Here, the attorney did not intend to sign the agreement on behalf of the sub-contractor and had informed the mediator that he did not have such authority. Thus, the attorney acted in good faith and summary judgment was appropriate.

Decision: Frasco, Caponigro, Wineman, & Scheible, PLLC v. IGC Management, Inc.

April 25, 2013

Kouransky, Bouwer & Poracky, P.C. v. The Bar Plan Mutual Insurance Co., No. 10 CV 535: Court Affirms Summary Judgment Declaring that Law Firm Not Entitled to Insurance Coverage in Legal Malpractice Action

by Boston Lawyer

The Seventh Circuit Court of Appeals has affirmed a summary judgment declaring that an insurance company did not have to provide coverage for a legal malpractice claim brought against a law firm. In Koransky, Bouwer & Poracky v. Bar Plan Mut. Ins., an Indiana law firm represented a potential buyer in the purchase of four drugstore franchises in Ohio. The first three sales were consummated and the buyer signed the fourth sales contract and delivered it to the law firm.

However, the firm inadvertently misfiled the fourth contract and failed to forward it to the seller. The seller informed the buyer that it was rescinding the contract because it did not receive an executed contract prior to an agreed upon deadline. An attorney at the firm immediately informed the seller of its error and requested that it go forward with the deal. The seller refused, and commenced an action in Alabama seeking a declaratory judgment that the contract was null and void.

Several weeks later, the law firm renewed its professional liability insurance policy, but did not notify its insurer of the buyer’s potential malpractice claim. Approximately six months later, the buyer wrote the law firm a letter notifying it that he was going to pursue a legal malpractice claim. The law firm forwarded the letter to its insurer.

April 17, 2013

State of Tennessee v. Beeler, Case No. E2010-00860-SC-R11-CD: Attorney’s Criminal Contempt Conviction Reversed in Legal Ethics Case

by Boston Lawyer

The Supreme Court of Tennessee has vacated the conviction of an attorney for criminal contempt. In State of Tennessee v. Beeler, two attorneys separately represented a husband and a wife in criminal proceedings. The husband’s attorney was cross-examining the defendants’ minor daughter at a suppression hearing in the case. During the questioning, the wife’s attorney asked the husband a question, while the husband’s attorney was still standing at a lectern across the courtroom.

The trial judge noticed the interaction, interrupted the examination, and asked the husband’s attorney if he had given the wife’s attorney permission to speak with his client out of his presence. The attorney responded that he did not. The judge then cited the wife’s attorney for criminal contempt finding that he had willfully misbehaved in the presence of the court and violated the Tennessee Rules of Professional Conduct, which prohibits such communications.

At a hearing to show cause why he should not be convicted, the wife’s attorney explained that he was implicitly authorized to communicate with the husband because that same morning the husband’s attorney had allowed him to speak with the husband alone about the same subject matter. The attorney also explained that on prior occasions, they had communicated with each other’s’ clients both in and out of one another’s presence.

April 10, 2013

Lewis v. Album, No. 12-CA-854: Louisiana Court of Appeals Affirms Summary Judgment for Attorney in Legal Malpractice Case

by Boston Lawyer

A Louisiana appellate court has affirmed a summary judgment in favor of an attorney in a legal malpractice action. In Lewis v. Album, a client retained an attorney in order to bring a claim against the Louisiana Commissioner of Insurance. Several months later, the client terminated the attorney’s representation.

Nearly three years later, the Commissioner’s office served the attorney with an ex parte motion to dismiss the case for abandonment and a court order granting the motion. The attorney forwarded the filings to the client, and filed a motion to withdraw as counsel of record. The following month, the client moved to set aside the Order of Abandonment, which the trial court denied because the case had already been dismissed.

Over one year later, the client filed a legal malpractice claim against the attorney, alleging that he had negligently allowed the previous suit to be dismissed for lack of prosecution. The attorney moved for summary judgment, which the trial court granted on the basis that the suit was barred by a one-year statute of limitations on legal malpractice claims.

The appellate court affirmed, finding that the statutory period began to run when the attorney informed the client that his case had been dismissed, or, at the latest, the following month when the client moved to set aside the judgment. Under either scenario, the client failed to commence his action within one year of either event. Summary judgment was therefore proper.

Decision: Lewis v. Album

March 29, 2013

Vara v. Williams, No. 03-10-00861-CV: Texas Appellate Court Affirms Summary Judgment for Attorney in Legal Malpractice Case

by Boston Lawyer

A Texas appellate court has affirmed a summary judgment in favor of an attorney in a legal malpractice action. In Vara v. Williams, a client hired an attorney to represent her in a divorce proceeding. The parties reached a mediated settlement, and the trial court entered a final divorce decree, which included a provision directing the parties to sign an operating trust agreement (“OTA”) allocating community property assets. Subsequently, disputes arose regarding the OTA, and the client hired a new attorney to represent her in that transaction.

The client later filed an action against the first attorney for negligently handling the OTA negotiations and several other causes of action. The attorney moved for summary judgment, which the trial court granted on the basis that the client had failed to timely designate an expert witness.

The appellate court affirmed, finding that contrary to Texas law, the client had attempted to transform a single count for legal malpractice into several other claims. In failing to timely designate an expert, the client could not succeed on her malpractice claim because she could not prove that the attorney had breached the standard of care. Summary judgment was therefore appropriate.

March 16, 2013

Bailey v. Robinson, No. 2 CA-CV 2012-0098: Arizona Appellate Court Affirms Summary Judgment for Attorney in Legal Malpractice Case

by Boston Lawyer

An Arizona appellate court has affirmed summary judgment in favor of an attorney in a legal malpractice action. In Bailey v. Robinson, a taxpayer hired an attorney to represent him in a civil action against the Internal Revenue Service (“IRS”), seeking a refund from a prior tax year. After a trial in the U.S. District Court for the District of Arizona, the court entered judgment for the IRS. The attorney then withdrew his representation.
The client filed a motion seeking relief from the judgment, arguing that an IRS agent had perjured herself and submitted falsified documents at trial. The client also argued that his attorney failed to discover or argue these issues. The trial court denied the motion, specifically ruling that the client failed to show that the agent had lied under oath or presented falsified documents, and therefore identified no reason for the attorney to have inquired into these subjects.

Several years later, the taxpayer sued his former attorney in state court for malpractice, again alleging that the attorney negligently failed to discover the IRS agent’s alleged perjury. The attorney successfully moved for summary judgment and the taxpayer appealed.

The appellate court affirmed, finding that the taxpayer was estopped from arguing that the agent perjured herself, because this issue was fully litigated and essential to the District Court’s judgment. Thus, there were no remaining issues of material fact and summary judgment was properly granted.

Decision: Bailey v. Robinson

March 3, 2013

Facchinato v. Gerds, No. 305129: Michigan Appellate Court Affirms Summary Judgment for Attorney in Legal Malpractice Action

by Boston Lawyer

A Michigan appellate court has affirmed a summary judgment in favor of an attorney in a legal malpractice action. In Facchiano v. Gerds.doc, a husband and wife hired an attorney to draft an agreement to transfer a 40% interest in their second home to their daughter. The transaction was completed and the daughter subsequently obtained a mortgage on her interest in the property.

Over two years later, the daughter defaulted on the loan and filed for bankruptcy. The parents consulted another attorney to investigate their options. The second attorney advised the couple that there was nothing they could do to prevent the lender from foreclosing on the mortgage. However, the attorney did not inform the couple that they might have a negligence claim against the attorney who drafted the agreement.

Almost one year later, the parents filed a legal malpractice action against the first attorney. The attorney successfully moved to for summary judgment on the basis that the claim was barred by a statute of limitations. The parents appealed.

Under Michigan law, legal malpractice actions must be brought within two years of the act or omission of the attorney, which caused the clients’ damages. The statute is tolled for an additional six months from the date when the clients discovered or should have discovered the alleged injury.