Published on:

By

The case is captioned In the Matter of Joseph Stork Smith, 29S00-1201-D1-8.

The Indiana Supreme Court disbarred an attorney for “revealing confidential information relating to his representation of a former client by publishing the information in a book for personal gain.”  The lawyer also allegedly had a sexual relationship with the client. In the book, the lawyer revealed “such details as his negotiations regarding bail and plea agreements, conversations with a police detective, conversations with [client] pertaining to the charges and her incarceration, [client’s] mental and physical state, the source of funds for restitution, discussions about his fees, and personal thoughts about [client] and about the matters.”

The Indiana Supreme Court rejected the claim that the lawyer obtained the client’s consent before disclosing the confidences.  The Indiana Supreme Court was especially concerned that the confidential information was revealed for personal financial gain.  The main violation alleged was Rule 1.9(c)(1) and (2) which prohibit disclosures of information concerning former clients.

Continue reading →
Published on:

By

Fink v. SHELDON BANK, Ill: Appellate Court, 1st Dist., 3rd Div. 2013 – Google Scholar.

Illinois has long followed the actual innocence rule, which holds that a criminal defendant may not sue his former attorney for legal malpractice unless he can prove that he was actually innocent of the crime.

A plaintiff in a legal malpractice case must prove a case-within-a-case, that is he must prove that, but for the lawyer’s negligence he would have won the underlying case. In the criminal context, the word “won” means “actual innocence.”

Continue reading →
Published on:

By

AXA CORPORATE SOLUTIONS ASSURANCE v. HOFF & HERRAN, Dist. Court, ND Illinois 2013 – Google Scholar.

The Illinois Attorney Lien Act of 1909 (yes, that is not a typo) provides that an attorney can place al lien on a claim that his client places with him for collection. Liens are typically asserted in contingent fee cases. A lawyer who is paid by the hour usually does not have a lien because he has already been fully compensated.

The typical lien situation is one where a claimant hires a lawyer to sue someone. Filing suit is not enough for an attorney lien. Instead, the lawyer must serve the party “against whom” the client has a claim. That means that the lawyer must serve the adverse party with a copy of the lien. There is no requirement that the lawyer serve his own client with the lien.

Continue reading →
Published on:

By

A qui tam case is a case in which a plaintiff, usually a former insider, sues his former employer on behalf of the United States and alleges that the United States was defrauded. The plaintiff is referred to as a “relator.” The relevant statute is the False Claims Act, 31 U.S.C. Section 3729, which allows qui tam actions on behalf of the United States to allow the United States to recover where the government was defrauded. In many cases, the United States takes the case over and proceeds to judgment. The individual relator is then awarded a fee for bringing the fraud to the attention of the United States.

This is an unusual qui tam action, United States of America, Fair Laboratory Practices Associates v. Quest Diagnostics, Unilab Corp., Second Circuit, 11-1565-cv, in which the Second Circuit upheld the disqualification of the defendant’s former general counsel from acting as a plaintiff against his former employer. The attorney, Mark Bibi, for several years was the general counsel for a corporation that was later purchased by the Defendant.

The Bottom Line:

Continue reading →
Published on:

By

KELLEY & WITHERSPOON, LLP v. Hooper, Tex: Court of Appeals, 5th Dist. 2013 – Google Scholar.

When the claim is that a lawyer breached the duty of care and thereby lost a case, the plaintiff must prove a case within a case, that is, that but for the lawyer’s negligence the plaintiff would have won the underlying case.

The Hooper case is a routine legal malpractice case in which the lawyers allegedly failed to sue the correct defendant in an auto accident case. At trial the jury found the law firm negligent and awarded damages of $235,000.

Continue reading →
Published on:

By

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.

Continue reading →
Published on:

By

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.

Published on:

By

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.

Continue reading →
Published on:

By

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.

Continue reading →
Published on:

By

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.

Continue reading →
Contact Information
111 W Washington St, #1437
Chicago, IL 60602 Phone: 312.357.1515

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

Please do not include any confidential or sensitive information in a contact form, text message, or voicemail. The contact form sends information by non-encrypted email, which is not secure. Submitting a contact form, sending a text message, making a phone call, or leaving a voicemail does not create an attorney-client relationship.

Copyright © 2015 – 2025, The Clinton Law Firm
JUSTIA Law Firm Blog Design