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There are a number of issues that you should consider before you file a legal malpractice claim against a lawyer. Your lawyer should discuss these issues with you so that you understand how to proceed:

  1. Did the lawyer cause your harm or was it caused by someone or something else? You are required to prove that the lawyer was the proximate cause of the loss of your case. Consider whether you would have won the case absent whatever error you believe the lawyer made. Play Devil’s Advocate – even if the lawyer had done what he was supposed to do, would I have won the case? Often the answer to this question is “No” because the case could not be won under any circumstances.
  2. Am I prepared to waive the attorney-client privilege? When you sue your lawyer you are almost always deemed to have waived the attorney-client privilege. That privilege shields communications from you to the lawyer and from the lawyer to you. It allow you to seek legal advice without fear that your own words will come back to haunt you. But if you sue a lawyer, you waive the privilege. Consider carefully whether the waiver of the privilege is worth it to you.
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In Flusser v. Bikel, 2019 NY Slip Op 32847(U), the plaintiff was involved in a contentious divorce. She discharged one firm and then hired the Defendant law firm (Bikel v. Mandarano) to represent her. At the conclusion of the divorce case, Plaintiff filed a legal malpractice claim against the Defendant law firm. In her complaint Plaintiff alleged that the Defendants had failed to sue prior counsel for alleged malpractice by those lawyers during the divorce case.

The Defendants responded that they had entered into an engagement agreement with Plaintiff under which Defendants representation would be limited to two areas:  “(i) “the prosecution or defense of a divorce action;” and (ii) “the prosecution or defense of a Family Court proceeding concerning custody, visitation and support proceedings, including the attempt to negotiate a resolution of the matter.'”

The trial court dismissed the legal malpractice action on the ground that the Defendants were not retained to investigate or prosecute a legal malpractice claim: The reasoning:

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Two law professors, Robert Anderson IV and Derek Muller, have published “The High Cost of Lowering the Bar,” in the Georgetown Journal of Legal Ethics. It can be found in Volume 32, page 307 of that law review.

Anderson and Muller argue, based on statistical evidence that lowering the bar passage score will mean an increase in attorney disciplinary claims. They show that students with lower bar passage scores are more likely to have public disciplinary matters. They argue that the attorney’s score on the bar exam correlates with discipline rates throughout the lawyer’s career. Lawyers with higher scores are far less likely to be disciplined. Lawyers with low scores are more likely to be disciplined.

Anderson and Muller argue against lowering the bar exam score because lower scores mean weaker quality lawyers.

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The case is captioned American Inter-Fidelity Exchange v. Hope, 17 C 7934, the District Court for the Northern District of Illinois rejected a law firm’s summary judgment motion based on the doctrine of judicial error. Usually, if there is a judicial error, that would constitute a defense to a legal malpractice claim. Here, as we shall see, the district court rejected the defense.

The underlying facts and case were mundane – the insured Rypninskiy was involved in an auto accident with Joseph Hope.  Hope sued Rypninskyi for negligence.  Rypninskyi did not cooperate in the defense of the auto accident case. In particular, he did not show up for the trial. The key ruling in the underlying auto accident case occurred when Rypninskyi did not appear for trial. The trial court barred him from introducing certain evidence. Judgment was entered against him and no appeal was taken.  Cassiday Schade argued that there was a judicial error in the trial court (when the court excluded the evidence).

Next, the insurer sued him, Joseph Hope and Joseph Hope’s bankruptcy trustee. The insurance company argued that Rypninskyi did not cooperate in the defense of the underlying case. Rypninskyi, in turn, sued Cassiday Schade, LLP, alleging that the law firm committed legal malpractice in the defense of the action.

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In Parkinson v. Bevis, (Docket No. 46269), the Idaho Supreme Court reinstated an equitable disgorgement action filed by a client against her former divorce attorney.

Parkinson filed a claim for breach of fiduciary duty against her former attorney, alleging that he wrongfully revealed a confidential email to her ex-husband’s attorney after a settlement had been reached in her case. The trial court dismissed the action on the ground that Parkinson was not damaged because the email was revealed after the case settled.

The Idaho Supreme Court reversed the dismissal and reinstated the complaint for breach of fiduciary duty. The Court explained that Parkinson was not seeking damages for legal malpractice, but was seeking equitable disgorgement of legal fees paid to her prior attorney. The explanation

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An engagement letter can be very important in that it sets limits on the attorney-client relationship. A good engagement letter defines what the lawyer will do and what the lawyer will not do. In the case captioned, Attallah v. Milbank Tweed, Hadley & McCloy, 168 A.D.3d 1026 (2019), 93 N.Y.S.3d 353, the Appellate Division of the Supreme Court of New York affirmed the dismissal of a legal malpractice case based on the precise terms of the engagement letter.

The law firm agreed to represent Attallah on a pro bono basis to investigate whether or not he could be reinstated by a school that had expelled him.  The engagement letter made it clear that the law firm’s engagement did not include litigation with the professional school.  It provided:

To that end, the parties executed a letter of engagement dated July 7, 2011. The letter of engagement provided, in relevant part, that: “Our services will include all activities necessary and appropriate in our judgment to investigate and consider options that may be available to urge administrative reconsideration of your dismissal from the New York College of Osteopathic Medicine (the `College’). This engagement does not, however, encompass any form of litigation or, to the extent ethically prohibited in this circumstance, the threat of litigation, to resolve this matter. This engagement will end upon your re-admittance to the College or upon a determination by the attorneys working on this matter that no non-litigation mechanisms are available to assist you. The scope of the engagement may not be expanded orally or by conduct; it may only be expanded by a writing signed by our Director of Public Service.”

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This case, Ostrolenk Faber LLP v. Sakar International, Inc., 2019 NY Slip Op 31303(U), holds that a counterclaim for legal malpractice against an intellectual property firm stated a claim. Sakar retained Ostrolenk to defend it in a patent infringement lawsuit. In the underlying case, a plaintiff alleged that a product manufactured and sold by Sakar to Office Depot violated plaintiff’s patent.The case was eventually settled.

The current case involved (a) the law firm suing for legal fees; and (b) the former client, Sakar, filing a counterclaim for legal malpractice.  The counterclaim alleged that the law firm failed to promptly research the “prior art” in the particular invention. Had it done so, the law firm would have realized that the patent infringement claim against Sakar had no merit. Instead, the firm engaged in other litigation activity which, in Sakar’s view, ran up costs.

The court held that the counterclaim stated a claim and reasoned as follows:

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One of the more common issues that arise in a legal malpractice case is when did the claim arise? In Schwab v. Zarhadnik, 18-1118, the Iowa Court of Appeals held that a divorce malpractice claim accrued on the date of the divorce decree. Plaintiff alleged that her attorney failed to pursue certain claims in the divorce proceeding, including a medical malpractice claim filed by husband after the divorce. The Court of Appeals held that Schwab had no claim and that, even if she did have a claim. the claim was barred by the five-year statute of limitations for legal malpractice. The discussion:

In order to determine when Schwab’s damages occurred, we must determine how Schwab was injured. Settlement payments received before dissolution are marital property. In re Marriage of Schriner, 695 N.W.2d 493, 497 (Iowa 2005). “The proceeds of a personal injury claim are divided according to the circumstances of each case.” In re Marriage of Plasencia, 541 N.W.2d 923, 926 (Iowa Ct. App. 1995) (citing In re Marriage of McNerney, 417 N.W.2d 205, 206 (Iowa 1987)). Settlement proceeds do not automatically belong to either party. McNerney, 417 N.W.2d at 208. Rights not specifically preserved in the dissolution decree are forfeited. Iowa Code § 598.20 (2009); see also Plasencia, 541 N.W.2d at 926. Moreover, benefits and proceeds received after a divorce is final are the separate property of the injured spouse. In re Marriage of Schmitt, No. 15-1207, 2016 WL 3556462, at *4 (Iowa Ct. App. June 29, 2016). We have held a spouse does not have “a right to any part of a future recovery made after the dissolution.” In re Marriage of Jervik, No. 15-0766, 2016 WL 5930425, at *7 (Iowa Ct. App. Oct. 12, 2016).

Even if we found Schwab had a right to a part of Musel’s recovery and found Zahradnik violated a duty to Schwab in failing to preserve that right, the statute of limitations would bar Schwab’s claim against Zahradnik. The dissolution decree was entered in 2009, more than five years before Schwab commenced this action on January 5, 2017. Therefore Iowa Code section 614.1(4) bars Schwab’s action unless a legal doctrine tolls the limitations period. See Skadburg, 911 N.W.2d at 793.

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Illinois has a rule that allows a plaintiff to dismiss a case once. The plaintiff can then refile the case. The rule does not allow multiple dismissals. In Webster Bank v. Pierce & Associates, P.C., No. 16 C 2522 (N.D. IL March 14, 2019), the court denied a defendant law firm’s motion for summary judgment because the law firm had violated the refiling rule.

The Illinois single refiling rule provides that if:

the action is voluntarily dismissed by the plaintiff, or the action is dismissed for want of prosecution, * * * the plaintiff, his or her heirs, executors or administrators may commence a new action within one year or within the remaining period of limitation, whichever is greater, after * * * the action is voluntarily dismissed by the plaintiff.735 Ill. Comp. Stat. Ann. 5/13-217. This provision is understood to “permit[] one, and only one, refiling of a claim.” Flesner v. Youngs Development Co., 145 Ill.2d 252, 254 (1991). The single refiling rule is considered to be an extension of res judicata. Carr v. Tillery, 591 F.3d 909, 915 (7th Cir. 2010) (“The one-refiling rule is thus the extension of the doctrine of res judicata to a class of cases in which the decision deemed to be res judicata is a dismissal without prejudice.”)

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This case, Alerding Castor Hewitt, LLP v. Paul Fletcher, et al, 16-cv-02453 (S.D. Indiana, Indianapolis Division) (April 18, 2019) illustrates the necessity of obtaining expert testimony to support a claim. Fletcher brought a malpractice claim against his former counsel after counsel sued for legal fees. Fletcher alleged that the attorneys were negligent when they represented him in a civil forgery case. The court disagreed and granted summary judgment for the attorneys.

Fletcher could not show that any alleged error by the attorneys proximately caused his loss because he had no expert testimony to support his claims:

To establish the applicable standard of care, Alerding Castor has presented an expert report from attorney David C. Jensen. Jensen’s thorough report discusses his review of the record from the Forgery Lawsuit in light of the applicable standard of care. Dkt. 130-3. Jensen concludes that Alerding Castor exercised ordinary skill and knowledge in litigating the Forgery Lawsuit and met the standard of care they were obligated to provide in its representation of Defendants. Id. at 16. Jensen’s conclusions are amply supported by the facts in the record.

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