Articles Posted in Legal Malpractice

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The case is captioned Iowa Supreme Court Attorney Disciplinary Board v. Robert Allan Wright, Jr., 13-0780, December 6, 2013.  The Iowa Supreme Court disciplined Wright for (a) failing to recognize a Nigerian scam and (b) allowing other clients to participate in the scam.  This case has received a fair amount of press attention, but the press has ignored the main issue in the case from a lawyer discipline perspective.

The trouble began when Wright was contacted by a client, Floyd Madison who informed Wright that Madison was the beneficiary of a large bequest from a long-lost cousin in Nigeria. Madison told Wright that he needed to pay $177,660 in inheritance taxes and then he (Madison) would receive the money. Most lawyers would have told Madison that the transaction was a scam. Wright, however, drafted a contingency fee agreement under which Wright would receive 10% of the inheritance in exchange for representing Madison.

Wright then made more mistakes. He urged several of his clients to loan money to Madison to help Madison pay the “inheritance taxes.”  At Wright’s urging, several of his other clients made loans to Madison. Wright placed the proceeds of the loans in his trust account. The opinion states “Wright stipulated that he failed to advise White, Stodden and Nunneman that they should seek independent counsel before making the loans to Madison.”

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WEST BEND MUTUAL INSURANCE COMPANY v. RODDY, LEAHY, GUILL & ZIMA, LTD., Dist. Court, ND Illinois 2013 – Google Scholar.

This is an unpublished decision concerning an allegation of legal malpractice in a workers’ compensation case. The plaintiff is the insurance company. The defendants are the lawyers it hired to defend a workers’ compensation case. The court dismissed the complaint, with leave to file an amended complaint. The district court reasoned that the complaint did not state a plausible claim for relief, in that the complaint did not allege specific facts showing a negligent act by the lawyers. Instead, according to the Court, the complaint was couched in broad, general terms.

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We receive many calls and other inquiries from former clients of other firms who believe that their lawyer made an error or committed legal malpractice. Here are few suggestions for those who wish to call us.

First, make sure that you have proof that the lawyer agreed to represent you. Proof can be an engagement letter or a cancelled check. A cancelled check is often the best proof because it prevents the lawyer from arguing that there was no attorney-client relationship.

Second, make sure you have a record of what the lawyer sent to you in writing. All too often written communications have been lost or thrown away by clients, preventing us from understanding how the relationship deteriorated.  Those written communications are critical. We often must spend lots of time tracking them down. Lawyers who have made an error often are reluctant to turn over their files.

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Kadlec v. Sumner, Ill: Appellate Court, 1st Dist., 2nd Div. 2013 – Google Scholar.

This is an opinion affirming the dismissal of a contribution claim against an accounting firm.

The executor of an estate sued the lawyer for the estate, alleging that the lawyer failed to timely file estate tax returns and that the estate suffered a financial loss as a result. The lawyer then filed a contribution claim against the accounting firm. The trial court dismissed the contribution claim on the ground that the statute of limitations for accounting malpractice had expired.

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Par

via Malm v. MOMKUS McCLUSKEY, LLC, Dist. Court, ND Illinois 2013 – Google Scholar.

This is a link to an unpublished decision denying a motion for Rule 11 sanctions in a legal malpractice. The client was sued in connection with a business transaction in the Northern District of Georgia. In 2009, the law firm withdrew from the representation. The court gave the client until May 4, 2009 to get a new attorney.

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RAFOOL v. Evans, Dist. Court, CD Illinois 2013 – Google Scholar.

This is a legal malpractice case where the plaintiff claimed that the defendant lawyers were negligent in failing to instruct the plaintiff to draw on a letter of credit prior to filing bankruptcy. The court held that there was no legal malpractice because the letters of credit were the property of the bankruptcy estate.  The letters of credit could have been assumed by the bankruptcy trustee.   The opinion also provides a thorough discussion of the law relating to letters of credit.

Thus, this is a case where the lawyers did not cause any damage to the plaintiff because the letters of credit were the property of the bankruptcy estate.

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McClintock v. West, Cal: Court of Appeal, 4th Appellate Dist., 3rd Div. 2013 – Google Scholar.

The Illinois courts have held that a guardian ad litem is immune from a lawsuit from one of the parties. A guardian ad litem is a lawyer appointed by the court in a family law case usually to protect the interests of a minor child. Family law litigants often become frustrated with the guardian ad litem. Here the frustrations mounted after the guardian submitted a fee petition.

This case is unusual in that the guardian was appointed to protect the interests of the plaintiff husband, who was suffering from extreme depression. Here, the plaintiff’s causes of action of negligence, fraud and legal malpractice were dismissed on the ground that the guardian ad litem was immune from suit. The court held that the negligence and fraud causes of action were barred by quasi-judicial immunity.

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Koch v. PECHOTA, Dist. Court, SD New York 2013 – Google Scholar.

This is an immigration malpractice case where the lawyers were hired to represent a woman to help her obtain a green card. They apparently succeeded in that effort. Later, the plaintiff was deported. She sued the lawyers for legal malpractice, arguing that they failed to prevent the deportation.

The defendant lawyers argued that the representation ended when the green card was issued. Therefore, under their logic, they did not commit legal malpractice by failing to prevent the deportation of the plaintiff.

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800 SOUTH WELLS COMMERCIAL, LLC v. HORWOOD MARCUS AND BERK CHARTERED, Ill: Appellate Court, 1st Dist., 4th Div. 2013 – Google Scholar.

Plaintiff alleged that Horwood Marcus & Berk (HMB) aided and abetted a breach of fiduciary duty by Nicholas Gouletas and John Cadden.

Legal malpractice is governed by a two-year statute of limitations in Illinois. 735 ILCS 5/13-214.3(b). Breaches of fiduciary duty are governed by a five-year statute of limitations. The question presented was which statute of limitations applies when a lawyer is alleged to have aided and abetted a breach of fiduciary duty. Plaintiff argued that the two-year statute of limitations only applies in legal malpractice cases. The court, relying on the plain language of Section 13-214.3(b) disagreed because the text of the statute does not refer specifically to legal malpractice claims.

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The case is captioned, Klever Belisario Miranda v. Michael H. Said, 11-0552, Supreme Court of Iowa, July 19, 2013.

This is an immigration malpractice case. Plaintiffs were two citizens of Ecuador who entered the United States without documents. Their son, Cesar, joined them in 1995. They gave birth to another child, Ronaldo, in 1998.

In 2005 Klever received notice of a removal order. He consulted with Said. Said allegedly advised him to return to Ecuador and have his son Cesar sponsor him and Nancy for citizenship once Cesar obtained citizenship.  He advised Cesar to use form I-130, which permits a citizen to sponsor a relative’s application for citizenship. Further, he advised the plaintiffs to use form I-601, which permits an applicant who is otherwise ineligible, to be admitted into the country based on “extreme hardship” to a qualifying relative.

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