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The attorney judgment rule essentially provides a lawyer with a defense to a malpractice action where the lawyer made a judgment call among one of several reasonable alternatives. The classic example would be to recommend a client plead guilty to a crime or for a criminal defendant not to testify at trial. Either choice (plead guilty or go to trial) may be a reasonable decision and the lawyer should not be punished for choosing one alternative among several options. A baseball analogy would be the manager’s decision to intentionally walk the other team’s cleanup hitter or to pitch to the hitter. Either choice is reasonable. The manager may get burned with an intentional walk if the next batter gets a hit or badly burned if the next hitter hits a home run. On the other hand, after the intentional walk, the next hitter may ground into a double play and the inning may end. No one should second guess the manager because either decision was reasonable.

In the case of Springs v. L&D Law PC, 2025 NY Slip Op 32, Springs sued his lawyers alleging that they committed malpractice by failing to properly amend his complaint in an underlying retaliatory discharge action, which was dismissed. The lawyer defended on the ground that he made a reasonable choice to amend the complaint in response to a motion to dismiss, which was ultimately unsuccessful. The court rejected the application of the attorney judgment defense for these reasons:

“Supreme Court correctly declined to find that the professional judgment rule protected defendants from liability. Pursuant to the professional judgment rule, an attorney’s “selection of one among several reasonable courses of action does not constitute malpractice” (Rosner v. Paley, 65 NY2d 736, 738 [1985]). Defendants maintain that their decision to amend the complaint in an attempt to moot the 2019 motion to dismiss instead of opposing the motion on its merits was a reasonable strategic choice that is protected by the professional judgment rule. However, plaintiff’s allegations are that defendants failed to submit a memorandum of law in opposition to the motion to dismiss and instead filed a deficient amended complaint that failed to state that there was a causal connection between plaintiff’s decision to file an EEOC complaint and the 2017 Action and the adverse treatment he suffered. At this juncture, the professional judgment rule is not available as a defense because the record does not allow us to make a determination that defendants’ course of conduct was reasonable as a matter of law (see Escape Airports [USA], Inc. v. Kent, Beatty & Gordon, LLP, 79 AD3d 437, 439 [1st Dept 2010]). Absent a finding that the attorney’s courses of conduct were reasonable as a matter of a law, a determination that a course of conduct constitutes malpractice requires findings of fact (see Bernstein v. Oppenheim & Co., 160 AD2d 428, 430[1st Dept 1990]).”

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A limited liability company (LLC) is a distinct entity and the lawyer for the LLC does not represent the members, absent evidence to the contrary, such as an engagement letter. Cafe Holdings, Inc. v. Burke, Warren, Mackay & Serritella, 2024 IL App (1st) 230091 discusses this case and holds that the lawyer for the LLC does not represent the members and had no duty to the members. Thus, Cafe Holdings lawsuit against the lawyers for the LLC was dismissed. The dismissal was affirmed by the Appellate Court. The reasoning:

¶ 28 From what we can discern, on appeal, CHI does not address the first issue. CHI raises two arguments in its appellate brief. The first is that dismissal was premature in that questions of fact remain regarding the circumstances surrounding the settlement agreement and the assignment of the legal malpractice claim. Its second argument is that public policy, under the Learning Curve test, favors assignability here. In neither argument does CHI claim to have an attorney-client relationship with the Silver defendants. And as we review the pleadings below, CHI did not assert an attorney-client relationship between itself and the Sliver defendants before the circuit court, either.

¶ 29 CHI, in other words, does not challenge the trial court’s first ruling that the Silver defendants did not owe a legal duty to CHI, as CHI was not their client, and thus a legal malpractice brought cannot ordinarily lie. See Northern Illinois Emergency Physicians v. Landau, Omahana & Kopka, Ltd., 216 Ill. 2d 294, 306 (2005) (among other things, claim for legal malpractice must establish duty arising from attorney-client relationship). And CHI did not raise that argument below, either. So any such argument is forfeited twice over. See Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020) (arguments not raised in appellate brief are forfeited); Hebert v. Cunningham, 2018 IL App (1st) 172135, ¶ 37 (argument not raised by appellant in circuit court is forfeited on appeal).

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In Stogis v. Miller, 2024 Il App (1st) 230379 the Illinois Appellate Court affirmed the dismissal of a legal malpractice lawsuit. The lawsuit was dismissed by the trial court on two grounds, the statute of limitations had expired and that there was no attorney client relationship between the lawyer and the plaintiff. Because the plaintiff did not obtain a transcript of the proceedings and the record did not reflect why the case was dismissed, the court held that the dismissal was proper. The explanation: “¶ 16 Since the record on appeal does not contain a properly bound and certified transcript of the hearing on defendants’ motion to dismiss, we cannot determine whether the trial court erred in granting defendants’ motion. We are therefore compelled to affirm the judgment of the trial court. See Foutch, 99 Ill. 2d at 392. Consequently, we must reject plaintiff’s contention of error.”

Should you have a question about a legal malpractice case or appeal, please contact us. Do not try to do an appeal without the record of proceedings from the trial court. It won’t work.

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I receive an email like this every month or so:

“Hi I have a business law matter for which I need assistance. Kindly confirm if you are available to handle such matters. Thank you for your time and consideration. Please contact me via my personal email for more details”

You can tell it is a scam because there are no details furnished in the email. I never respond. Be wary of any such communication. I am not sure how the scam works, but this cannot be a real matter from a real client.

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One common complaint against an attorney is that the attorney did not negotiate an adequate settlement of the underlying case. In this fact pattern, Plaintiff hired Lawyer 1 to file a personal injury action. Plaintiff replaced Lawyer 1 with Lawyer 2 who (a) settled the personal injury case, and (b) brought and settled a claim against Lawyer 1 for legal malpractice. Plaintiff then sued Lawyer 2 for negligently advising him to settle the malpractice case against Lawyer 1.

So, one personal injury case spawned two legal malpractice lawsuits. The trial court dismissed the legal malpractice case against Lawyer 2 on the ground that the plaintiff’s allegations were conclusory. Plaintiff failed to allege an error by Lawyer 2 that would have caused the allegedly inadequate settlement. The key paragraph of this opinion is quoted below:

Here, plaintiff’s allegation that Bellinson’s advice denied him the full value of his malpractice suit against Pepperman was “purely conclusory” (Murray Hill Invs. v Parker Chapin Flattau & Klimpl, LLP, 305 AD2d 228, 229 [1st Dept 2003]). Plaintiff’s complaint lacked any factual allegations to support his conclusion that he “would have succeeded” in achieving a better result in the personal injury action but for Pepperman’s negligence, and that he would have proved legal malpractice against Pepperman but for defendants’ advice (Pellegrino, 291 AD2d at 63). Additionally, plaintiff’s damages were speculative as he provided no basis for his calculations (see id.; Zarin v Reid & Priest, 184 AD2d 385, 387-388 [1st Dept 1992]).

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In Anderson v. Law Offices of Benedict Schwarz, 2014 Il App (2d) 230308-U, the plaintiff sued her former attorney, alleging malpractice in a divorce case. Plaintiff alleged: “that the defendants failed to take appropriate measures to freeze or maintain accounts that she owned with her husband. Because the assets were not frozen, her husband was able to sell five homes, five land parcels, an office, and an apartment building, most below appraised or market value. She asserted that the defendants knew of her husband’s liquidation and dissipation of marital assets but did not take adequate steps to prevent those losses. As a result of the defendant’s negligence, she alleged that she had to settle the underlying matter prematurely in order to keep her marital home and not be evicted. She further alleged that she lost money, all alimony, all her retirement, all her businesses, all her health insurance, and was left six figures in debt, with a home that needed major repairs.” The trial court dismissed the Complaint on a 735 ILCS 2-615 motion, but the Appellate Court reversed.  The trial court was swayed, in part, by the defense argument that the lawyers withdrew before the case was completed and that subsequent counsel could have remedied the problems. The Appellate Court reasoned as follows:

¶ 12 Here, the trial court erred in dismissing the plaintiff’s complaint. The plaintiff set forth all of the elements of a legal malpractice claim. She alleged that she hired the defendants to represent her in her marriage dissolution proceedings. She alleged that the defendants breached their duty to her by not freezing her husband’s assets so as to prevent him from diminishing the marital estate. She further alleged that due to the defendants’ breach of their duty, she suffered damages due to a diminished marital estate and because she had to accept a marital settlement agreement “prematurely” in order to keep her marital home. Despite the defendants’ insistence to the contrary, the plaintiff’s allegations included enough specificity for them to prepare a defense.

Of more interest to the practitioner in this area is the court’s discussion of why the fact that the lawyers withdrew does not bar the claim. Plaintiff argued that the actions of the defendant law firm so badly damaged her case that she was required to settle it for less than its value. The court cited Webb v. Damisch, 362 Ill. App. 3d 1032, 1042 (2005) and McCarthy v. Pedersen & Houpt, 250 Ill. App. 3d 166, 172 (1993). The court reasoned that there were factual disputes between the parties as to which of the various law firms was to blame for the failure to protect assets and that those factual disputes could not be resolved on a motion to dismiss.

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Rodowicz v. Feldman, Perlstein & Greene, LLC 3:20-cv-00777  D. Conn. 2024 was a legal malpractice suit where the plaintiff claimed that he lost the underlying litigation (a breach of fiduciary duty by a trustee case)  because of his lawyers’ negligence. He had no expert and summary judgment was granted in favor of the lawyers. The explanation:

“In order to demonstrate a “wrongful act or omission,” the plaintiff must establish the “standard of proper professional skill or care,” i.e., the standard by which a lay person—such as a juror—should judge the attorney’s conduct. Grimm v. Fox, 303 Conn. 322, 329-330 (2012). To demonstrate causation, the plaintiff must show what likely would have happened if the attorney had not breached the standard of care. See Bozelko, 323 Conn. at 284.

Establishing the standard of care and causation ordinarily requires an expert witness. The negligence of an attorney and the consequences of that negligence are matters “beyond the field of ordinary knowledge and experience possessed by a juror.” Id. at 284-85. As a result, a claim of legal malpractice usually requires the testimony of an expert witness to prove before a jury. Ibid.; see also Grimm, 303 Conn. at 329-30.

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In Jackson v. Law Offices of Peter Sverd, PLLC, 2024 NY Slip Op 30413 (NY Supreme Court 2024), the plaintiff sued her lawyer for malpractice arising out of an appeal of a discrimination lawsuit. The court held that the plaintiff would not have won the appeal under any circumstances so the lawyer was not negligent in handling the appeal. The reasoning: “Here, this Court finds plaintiff’s arguments do not prevail, and even if the defendant executed a different strategy, and whether the defendant had submitted certain documents, facts, or allegations at the time of the appeal, that would not have rendered plaintiff a more favorable outcome on her appeal. The plaintiff’s grievances or disappointment in the outcome of her appeal handled by the defendant does not constitute legal malpractice.”

If you have a question about a bad outcome in your case, do not hesitate to contact us.

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