Some lawyers include arbitration clauses in their agreements with their clients. In this unpublished decision, the Third Circuit upheld an arbitration clause and rejected a challenge that the clause was prohibited by New Jersey law.
Source: Smith v. Lindemann, Court of Appeals, 3rd Circuit 2017 – Google Scholar
When you sue a lawyer for a breach of the standard of care, you must prove proximate causation. If the underlying matter, was a lawsuit, you must show that, but for the negligence, you would have won the case.
Here, the lawyer was hired to pursue a lawsuit for insurance coverage. The lawyer allegedly missed the deadline to file the case. However, there was no legal malpractice because the underlying case lacked merit. The underlying case claimed that the insurance company did not cover certain losses. The problem was that the policy language excluded those losses. Thus, if the clients had read the insurance policy, they would have known that there was no coverage. Because the coverage case had no merit, the lawyer’s failure to file the lawsuit on time was of no importance. The trial court granted summary judgment for the lawyer and the appellate court affirmed that judgment.
The opinion explains the failure of proof in this fashion:
In this matter, a typical drug prosecution, the record reflected that county prosecutors supported the reelection campaign of a judge. Did that support create an obligation, on the part of the judge, to recuse himself from cases in which those lawyers appeared?
The trial court and the Indiana Court of Appeals held that there was no duty to recuse.
The lawyer for the defendant argued that the prosecutor’s support for the judge’s reelection campaign created an appearance of impropriety. The Indiana Court of Appeals disagreed. The court distinguished a prior case in which it had held that a judge was required to recuse himself because of an unusually close relationship to one of the lawyers.
Disclaimer: This is a charge and it has not been proven. These are mere allegations by the ARDC.
The case is worth reading because it is relatively rare for the ARDC to allege that a lawyer wrongfully accessed an email account. The underlying case involved a former employee. The lawyer was employed as the CFO of the former employer. According to the allegations, the lawyer used a work email address of the former employee to reset the password on the employee’s personal email account. The lawyer then read the personal emails and used them in the litigation. The allegations of wrongdoing are as follows:
21 t all times alleged in this complaint, there was in full force and effect Chapter 720, Section 5/17-51 of the Illinois Compiled Statutes, which provided, in part:
This is a rare patent malpractice case. According to the court, the plaintiff alleged that the lawyers failed to properly file and amend various patent claims and that the errors of the lawyers caused them economic damages. The lawyer defendants moved to dismiss on the ground that the plaintiff had not adequately alleged proximate causation. In particular, the defendants argued that the alleged errors did not cause plaintiff any economic damages. The court disagreed, holding that the plaintiff pleaded lost licensing revenue and royalties.
The underlying case was a personal injury case. The plaintiff hired a lawyer to represent her in that case and the lawyer obtained a settlement of the lawsuit that the plaintiff accepted. Despite accepting the settlement, the plaintiff sued for legal malpractice. The trial court dismissed the lawsuit and the appellate court affirmed. The fatal flaw with the case was that the plaintiff did not allege how the lawyer breached any professional duty to the plaintiff.
Source: Tarrant v. Ramunno, Del: Superior Court 2017 – Google Scholar
This case is newsworthy.The 11th Circuit affirmed a contempt finding against a lawyer who allegedly wrongfully procured evidence from the defendant. The Court set forth the facts as follows:
Attorney Sandra Finch represented Elane Armstead in Armstead’s lawsuit against Allstate Property & Casualty Insurance Company. In the weeks leading up to trial, Finch, on Armstead’s behalf, filed a motion in limine to exclude or strike the deposition testimony of Allstate’s fact witness Mark Gould. Allstate filed a response in opposition that, among other things, described what happened during Gould’s deposition, which it supported by citing the deposition transcript and Gould’s affidavit. The transcript showed that during the deposition Finch handed Gould page-by-page photographs of a document titled “Steamatic Guide to Restoration Services” (an outdated company document) and that when Gould asked Finch where she had found that document, Finch refused to answer. Gould in his affidavit stated that he “got very upset when it became apparent [that Finch] had obtained the document from my office without my permission.”
The photographs of the Steamatic Guide were not the only photographs Finchshowed Gould during his deposition. At one point she handed Gould a photograph of the inside of his office, but refused to explain where she had gotten the picture. Gould accused Finch of trespassing, at which point Finch responded, “I caution you on defaming me, because if you defame me, I can promise you it will not be good.”
Source: HARBORD v. SAFEWAY, INC., Wash: Court of Appeals, 1st Div. 2017 – Google Scholar
The plaintiff claimed that her lawyer committed malpractice by agreeing to the entry of a stipulated protective order. The lawyer had brought a wrongful employment termination case against Safeway, Inc. Plaintiff did not prevail in that action and sued her lawyer for malpractice. The court held that the plaintiff could not establish proximate causation in that the entry of a protective order did not cause her to lose the underlying case.
Sandler was a plaintiff in an underlying medical malpractice action in which he alleged that he received substandard care at Advocate Good Samaritan Hospital. Advocate retained a standard of care witness who testified against him. Sandler, even though he won the underlying case, sued Advocate’s expert on the ground that the expert failed to diagnose his brain injury. The trial court dismissed the case on the ground that there was no doctor-patient relationship and no duty of care. The Appellate Court affirmed, but on different reasoning. The Appellate Court reasoned that a statement by an opposing expert in a report or deposition was absolutely privileged. For many years courts have recognized that a lay witness is immune from liability for his pertinent testimony at trial. The relevant caselaw, quoted in Sandler, is as follows: “As a general rule, witnesses enjoy an absolute privilege from civil suit for statements made during judicial proceedings. Ritchey v. Maksin, 71 Ill. 2d 470, 476 (1978). The purpose of the rule is to preserve the integrity of the judicial process by encouraging full and frank testimony. Layne v. Builders Plumbing Supply Co.,210 Ill. App. 3d 966, 969 (1991). ” Sandler ¶ 26.
The plaintiff claimed that he missed the closing date on three real estate transactions because his lawyers did not give notice. The lawyers insisted that (a) the plaintiff fired them long before closing and (b) they notified plaintiff of the new closing dates.
The court held the case barred by the three-year statute of limitations in New Jersey. The explanation:
Here, plaintiff, a New Jersey resident, brings a legal malpractice claim against Kane and Berger. The applicable statute of limitations for a claim of legal malpractice is three years in New York (CPLR 214[6]) and six years in New Jersey (McGrogan v Till, 167 NJ 414, 426, 771 A2d 1187 [2001]). Therefore, New York’s three-year statute of limitations period applies.
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