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A client signed a fee agreement with an attorney for representation in her divorce. On June 26, 2013, as a condition of the signed fee agreement, the client tendered to the attorney $8,000.00 as a retainer for a divorce case and for a real estate closing. Upon receipt of the check, the attorney deposited the funds into her Interest on Lawyer’s Trust Accounts (“IOLTA”).

The following day, the attorney withdrew $5,500.00 and used it for purposes unrelated to the client. At this time, the attorney had neither earned this money, nor sent a bill to the client. Over the next month, the attorney continued to withdraw funds from the IOLTA until the account balance was approximately $1,000.00.

In early December 2013, the client terminated the attorney-client relationship. At the time of termination, the attorney had spent all but $500.00 of the money she had withdrawn, failed to provide the client with an accounting of the funds and did not return the $500.00 for several months.

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

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An appellate court in California has affirmed a trial judge’s ruling on a jury instruction concerning expert testimony in a legal malpractice suit. In Theurer v. Kolodny & Anteau, a woman brought a negligence action against the law firm, which represented her in a divorce proceeding. A jury found in favor of the woman in the legal malpractice case, but failed to award the total amount of damages she was seeking.

During the divorce proceedings, her lawyer had neglected to finalize a stipulation regarding the value of the couple’s home. Because the value of the home increased by almost $200,000 during the legal proceedings, the woman was forced to pay much more to retain ownership of the home.

In the malpractice trial, an expert witness for the woman testified that her law firm’s conduct fell below the standard of care, the firm failed to challenge with its own expert. The woman claimed damages for the difference in value of the property, her expenses and she sought a reduction of $800,000 in legal fees charged by the firm, on the basis that the fees were “unreasonable or unnecessary.” The jury awarded her the difference in value of the property, but no other damages.

On appeal, the woman claimed the trial court had erred in failing to instruct the jury that uncontroverted expert testimony in a legal malpractice case is conclusive on the issue of liability. The appellate court disagreed, finding that although non-expert testimony cannot be controverted by non-experts, it was still within the province of the jury to accept or reject the expert testimony. The appellate court thus found that the jury had properly weighed the evidence and its findings on damages were consistent with the evidence, which it heard.

Decision: Theurer v. Kolodny & Anteau

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The U.S. District Court of Appeals for the 10th Circuit has affirmed the judgment of a Kansas District Court finding that a legal malpractice case was barred by the statute of limitations. In Elder v. Herlocker, an attorney had represented a father, and allegedly his two sons, with respect to the transfer of title to real property. When the father had a change of heart, he instructed the attorney to forward letters to the sons requesting re-transfer of the property.

The attorney sent letters to the sons requested that each sign a deed, which gave the property back to the father. However, the letters failed to mention that the re-transfer might result in the sons irrevocably losing their interest in the popery. Both sons signed and returned the deeds.

When the father died in 2004, the sons first learned that the property had been devised to someone else. During subsequent probate proceedings resulting from a challenge to the will by one of the sons, the attorney admitted that he had entered into a limited attorney-client relationship with the sons, but believed that he had no duty to inform them that signing the property back to the father could result in a complete loss of their property interests.

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A Georgia appellate court has held that the statute of limitations in a legal malpractice action was not tolled by an attorney’s alleged fraud. Marsha Doyal brought the case against her former attorney Vincent Sowerby and his law firm. The legal malpractice case stemmed from a domestic proceeding in February 2005 in which Sowerby represented Doyal.

In the domestic case, a contempt order was issued and Sowerby attempted to appeal the order on behalf of Doyal. However, Sowerby failed to follow proper procedures in filing the appeal. Consequently, the Supreme Court of Georgia dismissed the appeal. Four days later, Sowerby sent a letter to Doyal which provided her with the contact information of his professional liability insurer and an explanation of her rights to sue him for legal malpractice. Sowerby also explained that the statute of limitations for a negligence action was 2 years and for a breach of contract claim 4 years. However, he incorrectly informed her that the statute of limitations began to run on the date that her appeal had been dismissed.

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To err is human, but attorneys are not immune from the consequences of mistakes made in the course of representation of a client. Most attorneys carry malpractice insurance for this express purpose. Attorney Keith L. Miller has represented clients who have claims against attorneys who have provided representation, but have made errors resulting in monetary damages. These mistakes typically involve attorneys who miss court filing deadlines, who fail to inform their clients of settlement offers, who prepare documents, which contain errors resulting in adverse consequences to the client, and other negligent acts, which extinguish or damage client interests. Legal malpractice cases tend to be complex as they usually require proving two cases, the case against the erring attorney and the underlying case in which the attorney made a mistake. They also require experts, who can provide opinions to corroborate the fact that mistakes have been made.

Click here to review a sampling of cases, in which Attorney Keith L. Miller has successfully represented individuals or companies with legal malpractice claims for money or other damages.

Contact Attorney Keith L. Miller today at 617-523-5803 or click here here to send an email for a free consultation about your case.