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Phinisee v. LAYSER, Dist. Court, ED Pennsylvania 2014 – Google Scholar.

One common claim against a lawyer is that he failed to obtain a good enough deal for his client. Here, the lawyers obtained $1.2 million for the plaintiff and her minor child in a lawsuit against the United States. After accepting the settlement, she filed suit for legal malpractice. Plaintiff was apparently unhappy about a Medicaid lien and the amount of the settlement.  The district court dismissed the lawsuit on a motion to dismiss. The district court held that the claims were not negligence claims, but, rather claims that the amount of the settlement was insufficient, which are not valid claims under Pennsylvania law.

What the court is saying is that you need more than a bad result to allege legal malpractice. You need to allege some error by the lawyer. Here, plaintiff did not allege an error by the lawyer.

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Adkins v. Palermo, Dist. Court, ED Kentucky 2014 – Google Scholar.

Probably the most common way to lose a legal malpractice case is to fail to identify an expert. The defendant moves for summary judgment and the court grants it. This opinion is worth reporting because it is well-written.

In the underlying case, plaintiff, represented by Mr. Palermo, filed a personal injury case. The trial court held that the defendant was immune under workers compensation doctrines. The lawyer told Adkins that there was no valid basis to appeal and concluded the representation. Adkins sued the lawyer, but he failed to obtain an expert witness and, thus, could not prove a breach of the standard of care.

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IN RE MARRIAGE OF WIXOM AND WIXOM, Wash: Court of Appeals, 3rd Div. 2014 – Google Scholar.

This is an appeal from a divorce case in which a lawyer (Robert Caruso) and his client (Rick Wixom) were held jointly and severally liable for a $55,000 sanction award. The lawyer and client were sanctioned because, in the underlying custody litigation, they made false charges about Rick’s ex-wife Linda.

Here is where the lawyer made an error. He appealed the sanctions against himself and filed an appeal for his client, Rick Wixom. The court explains how the lawyer threw the client under the bus:

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DEHART v. Lavit, Ky: Court of Appeals 2014 – Google Scholar.

This case recognizes a duty of care to opposing counsel to put the opposing counsel’s name on a settlement check. Lavit sued DeHart because DeHart forgot to put his name on a settlement check. The settlement funds were spent before they could be recovered.

The duty to opposing counsel is based on expert testimony concerning local practices. The court accepted the testimony.

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LAW OFFICE OF OSCAR C. GONZALEZ, INC. v. Sloan, Tex: Court of Appeals, 4th Dist. 2014 – Google Scholar.

This is a Texas case in which the lawyer, Oscar Gonzalez, was held liable when his co-counsel converted a settlement check. The attorney tried to defend on the ground that there was no attorney-client relationship. That defense was properly rejected by the jury where there was a signed engagement letter.

Edward X. Clinton, Jr.

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Meyers v. LIVINGSTON, ADLER, PULDA, 87 A. 3d 534 – Conn: Supreme Court 2014 – Google Scholar.

One recurring theme in lawsuits against lawyers is whether the plaintiff can sue for breach of contract and thereby obtain a longer statute of limitation. In Illinois, the statute of limitations for a breach of contract is either 5 years (oral) or 10 years (written). In Connecticut, the contract statute of limitation is 6 years, but the legal malpractice statute is 3 years.

Here, the court concluded that the action (filed more than three years after the claim arose) was untimely because the action was based upon a legal malpractice theory, not a contract theory. In particular, the plaintiffs’ allegations that the lawyer breached the Rules of Professional Conduct convinced the court that the case was a malpractice case not a contract case.

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IN RE JAHRLING, Bankr. Court, ND Illinois 2014 – Google Scholar.

Jahrling is an Illinois lawyer who filed for bankruptcy protection. A creditor who had won a legal malpractice judgment against Jahrling sought to block the discharge of that obligation in the bankruptcy proceeding.

“The Estate seeks to except from discharge a $26,000 state court legal malpractice judgment entered against Jahrling in 2007. It also seeks to deny the Debtor a discharge. The Amended Complaint asserts causes of action under four Bankruptcy Code (“Code”) sections: § 523(a)(4) — denial of discharge of a particular debt due to defalcation by a fiduciary; § 523(a)(6) ….” In other words the creditor was claiming that Jahrling breached his fiduciary duty to the creditor and therefore could not discharge the debt in his bankruptcy proceeding.

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BEFORE THE HEARING BOARD.

The ARDC has asserted a problematic claim against a lawyer who split a fee with another lawyer who did some of the work on the matter. I believe that the claim represents a misreading of the text of Rule 1.5(e).

First, I will quote the complaint:

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BEFORE THE HEARING BOARD.

The ARDC has filed a complaint against two lawyers of a Chicago law firm and has alleged that they engaged in the unauthorized practice of law in New Mexico, Georgia and North Carolina. This is an unusual complaint. Usually, the ARDC brings cases for the unauthorized practice of law against those who were not licensed in Illinois and who attempted to practice law in Illinois. The two lawyers accused in the complaint are licensed in Illinois and are in good standing with the Illinois. The ARDC has claimed that they wrongfully practiced in other states and failed to promptly refund fees for those matters. The underlying matters involved real estate foreclosures in other states.

This case is a reminder to everyone that Illinois lawyers are not licensed to practice law in other states.

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One of the recurring themes that I see is that a client has a problem with a lawyer, but the client waits years and years before addressing what to do about it. Inevitably, the statute of limitations (2 years from discovery of injury) runs while the client deals with other issues.

First, if you are the subject of a bad ruling in a case, ask your lawyer to appeal the ruling. If the decision cannot normally be appealed, ask the trial court to certify it for an immediate appeal. Rule 304 allows a litigant to attempt to certify a question for an appeal:

Rule 304. Appeals from Final Judgments That Do Not Dispose of an Entire Proceeding

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