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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.

http://www.clintonlaw.net

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One area that can lead to claims against lawyers occurs when the lawyer accepts one part of a representation but declines to represent the client in another matter. Any declination should be communicated clearly to the client and confirmed in writing. If you don’t do that, the client may later bring a malpractice claim against you.

In Boukari v. Schwartzberg, LLC, 2024 NY Slip Op 01247 (March 7, 2024), the plaintiff hired the defendant firm to complete a Workers’ Compensation matter. The lawyers declined to represent the plaintiff in any personal injury action. Plaintiff sued alleging that the firm missed the statute of limitations on the personal injury claim. The Appellate Division held that summary judgment for the law firm should have been granted. The explanation: ”

“Plaintiff’s legal malpractice action should have been dismissed. Contrary to the motion court’s finding, the record conclusively established, as a matter of law, that defendants had clearly informed plaintiff during their initial meetings in May 2014, by way of unambiguous writings confirmed by plaintiff’s signature, that defendants were only assisting her in substituting counsel in a Workers’ Compensation matter and that they had declined to represent her in any personal injury action against the building owner or any third party arising from her slip and fall. Plaintiff opposed the motion only with an attorney affirmation. She did not submit an affidavit setting forth her version of the initial conversations with defendants or any other interactions that would support her attorney’s contentions that she was under a reasonable impression that defendants had agreed to represent her on a personal injury claim or that the law firm did not clearly disclaim representation (see Zuckerman v New York, 49 NY2d 557 [1980] [an attorney affirmation is insufficient to put before the court facts of which she has no knowledge]”

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