Articles Posted in Legal Malpractice

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ESTATE OF LIFTIN v. US, Court of Appeals, Federal Circuit 2014 – Google Scholar.

This appeal is slightly off topic, but is relevant to the area of legal malpractice liability. The Estate filed its federal estate tax return five months late. The IRS then assessed a 25% percent penalty, in the amount of $135,714.45.

The Estate claimed that it had a legitimate reason to delay filing the estate tax return, namely that it had received legal advice not to file the return from its lawyers. The issue is whether counsel’s advice gave the executor of the estate “reasonable cause” to delay filing. The trial court found no reasonable cause and the Federal Circuit affirmed. Tax counsel allegedly advised waiting to file the return until the decedent’s widow became a United States citizen. Tax counsel also advised delaying the filing until certain information had become available.

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WEST BEND MUTUAL INSURANCE COMPANY v. RODDY, LEAHY, GUILL & ZIEMA, LTD., Dist. Court, ND Illinois 2014 – Google Scholar.

This is a legal malpractice case arising out of a defense of a workers compensation claim. West Bend alleged that the defense counsel retained to handle the workers compensation claim did not meet their professional duties because they conceded liability and failed to prepare an adequate defense, including failing to adequately depose the treating physician and failing to develop a causation defense.

Judge Guzman dismissed the complaint pursuant to Rule 12(b)(6) on the grounds that the record demonstrated that the lawyer defendants did not concede liability and failed to plead causation. The opinion explains:

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This is a legal malpractice case in which the plaintiff, after enormous effort, obtained a damages award of $2000 at trial. The Appellate Court affirmed the damage award.  Unfortunately, the Appellate Court issued an unpublished opinion, Hubertus Investment Group v. Smiegelski & Wator, P.C., 2014 IL App (1st) 131927-U. This case is an example of a case where there may have been negligence, but the damages were minimal.

On May 7, 2009, Hubertus entered into a contract to purchase 12 vacant properties in Chicago, Illinois, from Dragan Radojcic for the sum of $190,000. The closing was scheduled for June 1, 2009. Hubertus alleged that the lawyer defendants were negligent because they failed to secure water certificates from the City of Chicago and because they failed to obtain title to a lot at 4407 West Fulton in Chicago, Illinois. The Fulton lot was appraised at a value of $2000. The water certificate (when obtained) proves that the water bill of the City of Chicago has been paid.

Hubertus also alleged a breach of title commitment against Chicago Title. However, on January 23, 2013, CTIC “produced, executed and recorded quitclaim deeds encompassing 11 of the 12 properties; the remaining property at 4407 West Fulton had been sold for taxes.” The trial court ultimately granted summary judgment in favor of Chicago Title. The case proceeded to trial against the lawyer defendants.

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Harris v. Vitale, Ill: Appellate Court, 1st Dist., 2nd Div. 2014 – Google Scholar.

This case was brought by Robert Harris, the Public Guardian of Cook County. Harris was appointed the plenary guardian of the person for Andrea Molloy, a disabled person. The Illinois Appellate Court, First District, has affirmed a decision dismissing a legal malpractice case against a lawyer, who became involved in the guardianship case.

Molloy had dementia and chronic obstructive pulmonary disease. In February 2009, Harris filed a petition to be appointed temporary guardian of Ms. Molloy and a petition for the appointment of a guardian for a disabled person.

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Powell v. POTTERFIELD, SC: Court of Appeals 2014 – Google Scholar.

This is an unpublished opinion, which is unfortunate, because it deals with a key issue in divorce malpractice cases – could one of the parties have shown that he or she was entitled to maintenance? This issue can be difficult to demonstrate in a legal malpractice context.

Here the court agreed that wife could have obtained maintenance had the lawyers been diligent in asking for it.  Thus, summary judgment in favor of the law firm was reversed.

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Huang v. Brenson, Ill: Appellate Court, 1st Dist. 2014 – Google Scholar.

This opinion affirmed the dismissal of a legal malpractice action filed against a lawyer who defended a legal malpractice case.  This case is unusual because there are two underlying cases, an immigration matter and the legal malpractice case arising out of the immigration matter.

Plaintiff John Huang is an immigration lawyer. The defendant was Ian Brenson, who defended Huang in a legal malpractice action.

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Davis v. Fenton, Dist. Court, ND Illinois 2014 – Google Scholar.

Chief Judge Castillo has stayed an unusual legal malpractice case pending the outcome of arbitration. The case is highly unusual because it was filed by Kelli Dudley a lawyer who defends against foreclosures.  In this case her client alleges that her former foreclosure defense attorney, Ernest Fenton, engaged in violations of the Fair Housing Act, 42 U.S.C. Section 3601 and the Civil Rights Act of 1866, 42 U.S.C. §§ 1981 and 1982, as well as common law legal malpractice.

The district court followed well-settled law in enforcing an arbitration clause in the engagement letter and staying the case in favor of arbitration, pursuant to the Federal Arbitration Act. The district court also rejected claims that the Defendant had waived the arbitration clause.

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Cabrera v Collazo 2014 NY Slip Op 00622.

This is an opinion of the New York Supreme Court, Appellate Division. The facts were simple. The attorney missed the applicable statute of limitations and the client’s claim was barred. In such cases, the lawyer is liable for legal malpractice if the client can prove that, but for the attorney’s error, he would have won the underlying case.

Here, the lawyer’s estate raised an unusual defense. The attorney defendant passed away before the statute of limitations on the client’s claim ran. The lawyer’s estate is really making this argument: the lawyer passed away while the client’s claim was still viable, therefore, the client could have chosen another lawyer and filed the claim in timely fashion.

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The case is captioned Nelson v. Quarles and Brady, LLP, 1-12-3122, Illinois Appellate Court, First District. This is probably the most important legal malpractice case decided in Illinois in 2013. The opinion is thoughtful and scholarly.

The underlying case

The underlying dispute was a contract dispute between two business partners, Kenneth Nelson and Richard Curia. The facts are exceedingly complicated and revolve around two written agreements and an oral agreement.

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ALEO v. Weyant, Tenn: Court of Appeals 2013 – Google Scholar.

This is a growing area of legal malpractice liability for family law practitioners. After a divorce, one party claims that her lawyer failed to secure a portion of the other party’s pension. The divorce court has the right to apportion the pension plan, but unless it is done correctly, the apportionment will not take effect. In Illinois, the lawyers must enter a QDRO, a qualified domestic relations order.

In the above-captioned case the client alleged that the lawyer failed to include provisions in the marital settlement agreement necessary to divide a military pension. Unfortunately, the case was dismissed on statute of limitations grounds.

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