Boston Legal Malpractice Lawyer Blog

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

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

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.

Continue reading "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" »

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.

Continue reading "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" »

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.

Continue reading "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" »

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.

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

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

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

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.

Decision: Vara v. Williams

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

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

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

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.

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

The Supreme Court of Mississippi has dismissed a legal malpractice action on the basis that an attorney-client relationship did not exist between the parties. In Great American E&S Ins. Co. v. Quintairos, Prieto, Wood & Boyer, an insurance company provided underinsured coverage to a nursing home, which also had a primary insurance policy from another insurer with coverage limits of $1,000,000. The underinsurer did not have to pay a claim until the primary policy's limits were exhausted.

The estate of a former patient brought a negligent care action against the nursing home. The primary insurer then retained an attorney to defend the nursing home. Throughout the litigation, the attorney provided updates to both insurers, indicating that the settlement value of the case was no more than $500,000. However, the attorney failed to timely disclose an expert witness and was prohibited from using one at trial. The attorney then sent an updated evaluation, which estimated a settlement value between $3,000,000 and $4,000,000.

Based on the new evaluation, the primary insurer paid the policy limits to the patient's estate, which left the underinsurer responsible for any excess liability. The underinsurer paid an undisclosed amount to settle the case and then sued the attorney for legal malpractice. The attorney successfully moved to dismiss the case and the insurance company appealed.

The appeals court reversed the dismissal finding that an attorney-client relationship existed because the attorney's evaluations constituted legal services. The Supreme Court of Mississippi then granted certiori to review the decision. The court reversed, finding that imposing an attorney-client relationship on these parties would be inconsistent with the practice of litigation, because defendants with common interests often share evaluations and theories of the case. The suit was remanded for further proceedings on other issues.

Decision: Great American E&S Ins. Co. v. Quintairos, Prieto, Wood & Boyer

Continue reading "Great American E&S Insurance Co. v. Quintaros, Prieto, Wood & Boyer, P.A., No. 2009-CT-01063-SCT: Supreme Court of Mississippi Dismisses Legal Malpractice Case" »

A California appellate court has reversed a summary judgment in favor of an attorney in a legal malpractice action. In Kachlon v. Spielfogel, a husband and wife ("lenders") had loaned another couple ("debtors") $53,000 in exchange for a promissory note in that amount, which was secured by a deed of trust. Thereafter, the lenders signed an agreement cancelling the promissory note and then re-conveyed the deed of trust in exchange for $12,000.

The lenders hired an attorney to file suit against the debtors for default on two additional loans. The lenders also maintained that they were still owed the deficiency on the promissory note, pursuant to an oral agreement. Based on the attorney's advice, the lenders sought non-judicial foreclosure on the deed of trust, which resulted in the filing of three notices of default on the debtors' property.

The debtors then sued the lenders for damages arising from the foreclosure proceedings, including attorney's fees they incurred to clear title and the diminished value of the property. The lenders fired the attorney and hired two other lawyers to represent them in that case. Two years later, the debtors' action resulted in the entry of judgment against the lenders in the amount of $500,000.

Continue reading "Kachlon v. Spielfogel, No. B238406: California Appellate Court Reverses Summary Judgment for Attorney in Legal Malpractice Action" »

An Ohio appellate court has reversed a summary judgment for an attorney in a legal malpractice case. In Svaldi v. Holmes, a 93 year old client visited an attorney to revise an existing power of attorney. The client was accompanied by two of his neighbors, who also managed the apartment complex where they all resided. At the client's request, the attorney drafted a new power of attorney naming the neighbors as his agents and granting them authority to manage, sell and transfer his assets.

Under the terms of the power of attorney, within thirty days of their appointment, the neighbors were required to submit to the attorney an inventory of the client's assets and subsequent yearly accountings of all transactions. The neighbors failed to deliver the initial inventory and never submitted an annual accounting. Other than one letter reminding the neighbors to submit the inventory, the attorney never followed up to determine if accountings were made.

Two years later, a suspicious withdrawal was made from the client's account, which caused the bank to contact law enforcement. An investigation determined that the neighbors had stolen over $800,000 from the client.

Continue reading "Svaldi v. Holmes, 2012 Ohio 6161: Ohio Appellate Court Reverses Summary Judgment for Attorney in Legal Malpractice Action" »

The Alaska Supreme Court has reversed the dismissal of a legal malpractice action. In L.D.G., Inc. v. Robinson.docx.doc, a man had consumed alcohol at a bar and then shot and killed a woman later that night. The patron was convicted of first degree murder and the estate of a victim brought a wrongful death action against the bar. The bar hired an attorney to defend it in that case.

The estate named the bar as the only defendant. The attorney failed to join the patron as a third-party defendant to bring a claim against him for an allocation of fault. After a jury trial, the court entered a directed verdict for the estate and, following a separate damages hearing, entered judgment in the amount of almost $1 million. The judgment was affirmed on appeal. The bar then brought a legal malpractice suit against the attorney for his failure to add the patron as a third-party defendant.

The attorney moved to dismiss the case on the basis that at the time of the underlying suit, Alaskan law was unsettled as to whether alcohol providers could bring contribution claims against consumers. He argued therefore, that attorneys cannot be held liable for an error in judgment regarding an unsettled area of law. The trial court granted the motion and the bar appealed.

The appellate court reversed. An attorney always has a duty to exercise reasonable care in representing a client. In this instance, the court found that, although the area of law was unsettled, a prudent attorney would have added the patron as a defendant, especially in light of the uncertainty in the law and the risk of not naming the patron. Therefore, dismissal was inappropriate and the court remanded the case for further proceedings.

Decision: L.D.G., Inc. v. Robinson

Continue reading "L.D.G., Inc. v. Robinson, No. S-14427, No. 6734: Alaska Supreme Court Reverses Dismissal of Legal Malpractice Action" »

A New York appellate court has affirmed a summary judgment for an attorney in a legal malpractice case. In Coccia v. Liotti, a client retained an attorney to represent her in divorce proceedings. The attorney negotiated a settlement of the marital estate, which paid the client $1.6 million and provided additional support payments. The client, however, believed that the settlement was insufficient, based on information obtained from an accountant she had retained, who suggested that the client's former husband was not reporting all of his earned income. She then filed an action against the attorney, alleging multiple counts, including a negligence count on the basis that he recommended settlement for an insufficient sum.

The attorney successfully moved for summary judgment, but that ruling was reversed on appeal. He then deposed the former husband and his accountant. The attorney made another motion for summary judgment on all counts, on the basis that the deposition testimony clarified any discrepancies about the husband's income. The trial court denied the motion, relying on New York common law, which generally bars the filing of successive motions for summary judgment. The attorney then appealed.

The appellate court reversed, finding that the motion was not duplicative as to the legal malpractice claim because the deposition testimony constituted newly discovered evidence, and also ruled that the client could not prove that she had suffered any damages, as a matter of law. The court entered judgment in favor of the attorney on the malpractice claim only, and remanded the case for further proceedings on the remaining counts.

Decision: Coccia v. Liotti

Continue reading "Coccia v. Liotti, 2012 NY Slip Op 08273: New York Appellate Court Affirms Summary Judgment for Attorney in Legal Malpractice Action" »

A New York appellate court has reversed a summary judgment granted in favor of an attorney in a legal malpractice action. In Jack Hall Plumbing v. Duffy, a family owned business hired an attorney to advise them on how to properly terminate their chief operating officer ("COO") in accordance with his employment contract.

The contract specified that the company could fire the COO for cause in writing and he would be given an opportunity to respond. The attorney reviewed the contract and then delivered a letter to the COO informing him that he was terminated, effective immediately. The COO brought an action against the company for violation of his employment contract.

The company prevailed at trial, but an appellate court reversed the judgment, finding that the termination was improper since the COO did not receive sufficient notice and had no opportunity to respond. The company then sued the attorney for legal malpractice. The attorney successfully moved for summary judgment and the client appealed.

Continue reading "Jack Hall Plumbing & Heating, Inc. v. Duffy, 2012 NY Slip Op 07249: New York Appellate Court Reverses Summary Judgment for Attorney in Legal Malpractice Action" »