Mar 31 2017

Legal Malpractice Law Update 3/31/17

Massachusetts Appeals Court

Waiver: Dismissal of second legal malpractice case affirmed where client waived attorney client privilege regarding statement that became known during underlying action, which was relevant, material and/or necessary to defend the original legal malpractice case. Thus, second legal malpractice complaint was devoid of sufficient facts to support a claim, and was properly dismissed.
Doe v. Am. Guar. & Liab. Co.
91 Mass. App. Ct. 99 (3/1/2017)

The Massachusetts Appeals Court affirmed a trial court’s dismissal of a legal malpractice lawsuit that involved four separate actions, all of which were relevant to the Court’s decision. The first case related to criminal charges against a defendant for assault and battery of one of two foster children. The child at issue, identified in the decision as Foster 1, allegedly was abused by the defendant. During the course of representation, defendant revealed to his attorney that he had sexually abused a second foster child (Foster 2), who lived with defendant at the same time as Foster 1. The criminal case ended with defendant’s guilty plea related to his abuse of Foster 1. In the second case, Foster 1 sued defendant in a civil case, alleging physical and sexual abuse. Defendant hired his criminal attorney to represent him in defense of the tort action. The attorney however failed to serve interrogatory answers, defendant was defaulted, and later ordered to pay $400,000 in damages and interest to Foster 1. The defendant/client (“client”) then brought a legal malpractice action against his former attorney, known as the third case discussed in the decision. The attorney was represented by an attorney retained by the defendant attorney’s insurer. The defendant attorney told his defense counsel about the admission of client, who was now the plaintiff in the legal malpractice case. Specifically, the defendant attorney told the defense counsel that the client had confided that he sexually abused Foster 2. Defense counsel, through information in the file and use of a private investigator, was able to locate Foster 2. Defense counsel planned to defend the malpractice action partly by using the allegations related to Foster 2 against the client. The client’s attorney warned defense counsel not to use any information that was obtained through the defendant attorney’s prior representation of the client. However, defense counsel went ahead and filed a motion to compel the client’s deposition, supported by an affidavit including the client’s admission that he had abused Foster 2. Shortly thereafter, the legal malpractice action was resolved through a mediated structured settlement, which also included payment for Foster 1's collection action Also, the client agreed to release the defendant attorney from “all claims that were or could have been asserted against him as of the date of the filing of [the legal malpractice action] but shall not release him … or any other party of other claims.” The fourth case, almost two years after the settlement, was the instant action. This case constituted the client’s second legal malpractice action against the defendant attorney, and also included claims against defense counsel in the first legal malpractice action, as well as the defendant attorney’s insurer. In the complaint, the client alleged that the defendant attorney and his defense counsel misused information subject to attorney-client privilege related to the client’s statement that he had abused Foster 2. The client claimed that revelation of the information provided an advantage to Foster 1’s attorney, and also provided leverage against the client, and subjected him to possible civil and criminal liability related to Foster 2 (although no criminal charges were brought against him related to Foster 2). The trial court dismissed the complaint in the second legal malpractice action because the client had waived the attorney-client privilege that otherwise would have applied to the information at issue, i.e., related to his statement that he had abused Foster 2. On appeal, the client claimed that the attorney for Foster 1 in the underlying tort action (the second case discussed in the decision) would not have known about the alleged abuse of Foster 2, that Foster 2’s whereabouts were not known during that case, that Foster 2 would not have been raised in that action, and was thus not relevant to the underlying tort action. As a result, the client claimed he did not waive the privilege regarding his statement about Foster 2, the privilege was breached with information about Foster 2 that was not relevant to the underlying tort case, and should not have been revealed. The Appeals Court noted that the client’s theory rested on the assumption that Foster 2 was unavailable in the underlying tort action. The Court agreed that Foster 2’s whereabouts were not known to Foster 1’s attorney, but explained that based on the circumstances, the bare allegation in the complaint for the second legal malpractice action that Foster 2’s whereabouts could not have been determined had the underlying tort action proceeded, were unsupported, and were not sufficient to sustain the malpractice claims against the defendants. The Court also explained that issues and facts about Foster 2 were in fact relevant to the underlying malpractice claim. Moreover, by bringing the first legal malpractice claim, the client waived the attorney-client privilege regarding this statement about Foster 2. Thus, the Court ruled that none of the defendants could be liable for their use of that information (about the client’s admission regarding Foster 2) in defending the malpractice action. Accordingly, the Appeals Court affirmed that the second malpractice claim was properly dismissed.

Court of Appeals of Georgia

Anti-SLAPP Dismissal: A group of lawyers who were allegedly involved in making an illegal videotape, issuing an extortionate demand letter and using the video in connection with legal proceedings were not entitled to have claims against them dismissed under Georgia's anti-SLAPP statute.
Rogers v. Dupree
2017 WL 1021873 (Ga. Ct. App. 3/16/2017)

A prominent and wealthy individual began to carry on a sexual relationship with an employee housekeeper. The housekeeper was terminated after sustaining an injury, but was rehired after recovering, and resumed the previous sexual relationship. The housekeeper had obtained an audio recording of sexual conduct with her employer and sought to bring sexual harassment claims against him, alleging that the sexual relationship became a condition of employment. She learned by consulting an attorney who did not become involved in the matter that the audio recording was not strong enough evidence to prove her case. The housekeeper then retained two of the three defendant attorneys to represent her in her sexual harassment claim. The housekeeper thereafter surreptitiously video recorded sexual conduct between her and the employer. The housekeeper's employer was not aware that their conduct was being recorded and did not consent to the recording. Six weeks after making the video, and having resigned from her position, the housekeeper's attorneys sent a demand letter to the employer stating that the employer had engaged in "a long history of unwelcome sexual demands and other sexual harassment and abuse" toward the housekeeper which was well documented by numerous video and audio recordings. The letter further stated that the housekeeper was prepared to proceed with a lawsuit if the matter could not be settled quickly. The letter claimed that in the defendant attorneys’ view, a "scorched earth policy" was never a successful defense to a sexual harassment claim. The letter further stated that facts, witnesses and other matters came to light through protracted litigation which garnered unwelcome media attention, intrusive governmental investigations and civil and criminal charges. After the demand letter was sent, the third defendant attorney became involved in the case and forwarded a segment of the video recording to one of the employer's attorneys. On the same day of an unsuccessful mediation, the employer sought an injunction to prevent the housekeeper from disseminating the video. Later, the employer filed suit against the attorney defendants and housekeeper claiming invasion of privacy, intrusion upon seclusion, solitude and private affairs, civil conspiracy and other similar claims, alleging among other things that the attorneys had encouraged the housekeeper to make the video. Two defendant attorneys responded with anti-SLAPP motions to dismiss that were denied by the trial court. The trial court held that the employer's lawsuit was a SLAPP suit according to Georgia law but found that the statutory verifications accompanying employer's complaint were sufficient to allow the case to proceed under Georgia law. The third attorney defendant's anti-SLAPP motion was granted when the trial court found that the verification accompanying that complaint must have been false. On appeal, the Court of Appeals of Georgia affirmed on other grounds, holding that the anti-SLAPP statute did not apply to the employer's suit because it was not a SLAPP suit and did not need to comply with any anti-SLAPP-related procedural obligations. The court reasoned that the acts forming the heart of employer's claim against the three attorney defendants involved the making of the videotape, the demand letter and the continued use of the videotape, all of which occurred before any official proceeding was underway and therefore did not occur in the context of "an actual official proceeding," as is required by the anti-SLAPP statute. The majority drew further support from a Georgia law holding it unlawful for any person to videotape activities of another in a private place without that person's consent. The Court characterized the attorney defendants’ alleged involvement in making the videotape as tortious and criminal and thus not within the protected activity defined by the anti-SLAPP statute, as distinguished from acts done in furtherance of litigation that are arguably legitimate although bothersome. Finally, the majority noted that the employer sought to recover damages for the making of an illegal video, theft of financial information, public disclosure of private facts and extortion, instead of the refusal to dismiss various civil proceedings brought by the housekeeper.

Colorado Court of Appeals

Burden of Proof: Defendant alleging that plaintiff cannot recover in legal malpractice action because damages would have been uncollectible in underlying action must raise issue of collectability as an affirmative defense and bears the burden of proving that the judgment would not have been collectible.
Gallegos v. LeHouillier
2017 WL 1089559 (Colo. App. 3/23/2017)

Plaintiff consulted with defendant attorney regarding a potential medical malpractice claim. There was a factual issue as to whether defendant told plaintiff that he would not represent her in the action. The statute of limitations ran on plaintiff's potential medical malpractice claim and plaintiff brought suit against defendant for legal malpractice. A trial commenced on plaintiff's legal malpractice claim, and a jury found that the doctor in the underlying action was negligent and defendant attorney was negligent. Both at the close of plaintiff's evidence and after the jury's verdict, defendant asserted that plaintiff bore the burden of proving that any judgment against the doctor in the underlying action would have been collectible and plaintiff failed to carry her burden. The trial court agreed that it was plaintiff's burden to prove collectability but ruled that plaintiff had provided certain evidence satisfying that element. Defendant appealed. The Court of Appeals held that there was insufficient evidence to prove that judgment in the underlying action was collectible. The Court then turned to the issue of whether the burden was on the plaintiff to prove collectability or the defendant to prove uncollectability in the underlying action, which was an issue of first impression in Colorado. The Court acknowledged that the majority of states allocate the burden of proving collectability to a plaintiff. But the Court also appreciated the growing trend of the minority states that allocated the burden to a defendant. The Court of Appeals found the minority trend persuasive, citing seven rationales: (1) the burden of collectability is created by the negligent attorney and a plaintiff in a legal malpractice case already has the burden of proving negligence twice; (2) the negligent attorney is in as good a position to prove uncollectability, as he or she should have investigated the solvency of a defendant at the beginning of the underlying case and is as capable as a plaintiff in discovering this issue; (3) requiring a plaintiff to introduce evidence of collectability would be at odds with evidence rules and case law generally excluding evidence of insurance coverage; (4) time between the legal malpractice action and the original injury could prejudice a client's opportunity to gather evidence about collectability and an attorney should not benefit from a delay caused by his or her negligence; (5) proving insolvency benefits the attorney, so he or she should have the burden of proving it; (6) placing the burden on the attorney does not eliminate the effect of insolvency as damages could be mitigated or eliminated if the attorney proves that a judgment is not collectible; and (7) collectability is not a part of causation in other negligence cases. Thus, the Court of Appeals held that the trial court erred when placing the burden of proving collectability on plaintiff, and defendant must raise the issue of collectability as an affirmative defense and bear the burden of proof at trial. Therefore, the judgment of the trial court was reversed and the case was remanded for a new trial. One justice dissented, favoring the approach of majority of states and commenting that proof of collectability is so important that it must be an element of a legal malpractice plaintiff's case.

Supreme Judicial Court of Maine

Expert Testimony and Legal Malpractice: Plaintiff could not establish a prima facie case of causation in legal malpractice action where he failed to offer competent expert testimony on that issue.
Brooks v. Lemieux
2017 WL 1056194 (Me. 3/21/2017)

The plaintiff’s claims for legal malpractice, breach of fiduciary duty and negligent infliction of emotional distress arose from the defendant attorney’s representation of the plaintiff in an employment discrimination case. The plaintiff retained the defendant attorney to bring claims against the plaintiff’s former employer and labor union. The employer and union filed motions for summary judgment. The defendant attorney failed both to file a timely opposition to the motion for summary judgment and to respond to the accompanying statement of material facts. The defendant attorney also filed a late motion to extend the deadline to file a response to the statement of material facts. The defendant attorney allegedly failed to conduct sufficient discovery and provide sufficient affidavits in opposition to the summary judgment motion. Judgment entered in favor of the employer and union. The plaintiff subsequently filed his claims against the defendant attorney. The plaintiff’s claims against the defendant attorney were based upon the alleged failure to file an opposition to the statement of material facts, failure to conduct adequate discovery and obtain affidavits from witnesses. The defendant attorney filed for summary judgment, arguing that the plaintiff failed to establish prima facie evidence of causation. The plaintiff failed to provide evidence regarding what the defendant attorney should have done in discovery and additionally failed to offer admissible expert testimony on the issue of causation. The only evidence offered by the plaintiff consisted of an affidavit from an alleged expert who provided conclusory testimony regarding the causal relationship between the defendant attorney’s alleged omissions and the judgment for the employer and labor union in the underlying case. The trial court did not consider this affidavit and ruled that it offered testimony that was contradictory to the deposition testimony of that same witness. Accordingly, the trial court granted summary judgment in favor of the defendant attorney. The plaintiff appealed. In reviewing the exclusion of the affidavit, the Supreme Judicial Court ruled that the affidavit should not have been excluded but that the error was harmless. The affidavit was found to have offered supplemental and consistent testimony by the affiant that should have been considered by the trial court. Nonetheless, the Supreme Judicial Court determined this error was harmless as the affidavit did not offer any specific testimony regarding causation and, therefore, a determination that the defendant attorney’s purported negligence caused the loss of the underlying case would be speculative. The Supreme Judicial Court held that because the plaintiff failed to put forth prima facie evidence of causation to support his claims, the trial court properly granted a summary judgment in favor of the defendant attorney.

Court of Appeal of Louisiana, Fourth Circuit

Arbitration Clause in Fee Agreements and Challenging Arbitration Awards: Arbitration clause in fee agreement was not a contract of adhesion and therefore stay of court proceedings to arbitrate matter was appropriate, as was confirmation of the arbitrator's award.
Potier v. Morris Bart, L.L.C.
2017 WL 1013204 (La. App. 4 Cir. 3/15/2017)

The Court of Appeal of Louisiana for the Fourth Circuit affirmed an order of the Civil District Court, Orleans Parish, confirming the arbitration award for the defendant attorney and dismissing plaintiff’s suit for legal malpractice. In this case, the plaintiff hired the defendant attorney in 2011 to provide legal representation in a personal injury claim resulting from an automobile accident. The plaintiff’s case was settled in mediation in June 2013 including the $30,000 policy limits from the other driver’s automobile insurer and $15,000 in uninsured motorist coverage from her own automobile insurer. The plaintiff sued the defendant attorney for malpractice, contending that the applicable standard of care was breached in connection with the securing of a settlement agreement on her behalf. The defendant attorney responded by filing a motion to stay pending arbitration, relying on the binding arbitration clause found within its attorney-client contract with the plaintiff. In opposing the request for arbitration, the plaintiff argued that the attorney-client contract was adhesionary and thus unenforceable. The district court judge disagreed and stayed the plaintiff’s malpractice suit. The plaintiff did not seek supervisory review of the stay order, and the matter proceeded to arbitration. Ruling against the plaintiff, the arbitrator concluded that the defendant attorney did not breach the applicable standard of care in connection with its representation of the plaintiff, and awarded the defendant attorney costs and fees. The defendant attorney then moved to confirm the arbitration award in the district court in accordance with La. R.S. 9:4209. The district court judge granted the motion over the plaintiff’s opposition and signed a final judgment confirming the award and dismissing the plaintiff’s claims against the attorney with prejudice. The plaintiff timely filed a motion for devolutive appeal from the judgment and asserted that the arbitration award should not have been confirmed because it was error to initially stay the proceedings and send the matter to arbitration. On appeal, the plaintiff later argued that she is functionally illiterate and was thus incapable of understanding the ramifications of the retainer agreement and its arbitration clause at the time she signed it. However, the plaintiff failed to present this argument first to the trial court and did not assert this claim at the show-cause hearing on the defendant attorney’s motion to stay. As a result, the Court of Appeal of Louisiana, Fourth Circuit declined to address this argument. The Court of Appeal did however address the plaintiff’s opposition to the stay request on the grounds that the retainer agreement, and thus its arbitration clause, was adhesionary. Louisiana courts have found that “[g]enerally speaking, a contract of adhesion is a standard contract, usually in printed form, prepared by a party of superior bargaining power for adherence or rejection of the weaker party.” The Louisiana Supreme Court held that contracts of adhesion, which are generally in small print, “sometimes raise a question as to whether or not the weaker party actually consented to the terms” but such contracts are not per se unenforceable. After reviewing the retainer agreement in its entirety, with special focus on the arbitration clause, the Court of Appeal concluded that the agreement bound both parties to the arbitration clause equally and the district court judge did not err when she refused to conclude that it was adhesionary. The agreement specified that all disputes, including claims of malpractice, between the plaintiff and defendant attorney would be resolved by arbitration. The agreement further specified that the plaintiff had the right to seek independent legal representation to advise her before signing the agreement. The Court found that first, neither the retainer agreement, nor the arbitration clause signed by the plaintiff were in small print, but, rather, both were in identical standard type. Second, the plaintiff clearly had the option of not signing the agreement and retaining another attorney if she did not wish to be bound to arbitration. Third, the terms of the arbitration agreement were neither unduly burdensome, nor extremely harsh. As for the propriety of the arbitration award itself, the Court explained that arbitration awards are presumed to be valid and a district court judge may not vacate an arbitrator’s award unless specifically authorized by statute. La. R.S. 9:4210 provides for four exclusive instances in which a district court judge “shall issue an order vacating the award”: (1) where the award was procured by corruption, fraud, or undue means; (2) where there was evident partiality or corruption by the arbitrators; (3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy, or of any other misbehavior by which the rights of any party has been prejudiced; or (4) where the arbitrators exceed their power or so imperfectly execute them that a mutual, final, and definite award upon the subject matter submitted was not made. In this case, the plaintiff’s challenge to the arbitrator’s award was based on none of section 4210’s exclusive bases, but instead upon the assertion that the district court judge erred in granting the attorney defendant’s motion to stay. The Court of Appeal affirmed, holding the plaintiff did not present the district court with any statutorily sanctioned ground upon which to vacate the arbitrator’s award.

Court of Appeals of Ohio

Requirement of Expert Testimony: Expert testimony held to be unnecessary to sustain a claim of legal malpractice where the alleged errors were so simple and obvious that determining whether the alleged errors violated the standard of care was within the ordinary knowledge of lay people.
Flynn v. Pollock, et al.
2017 WL 1034601 (Ohio App. 3/9/2017)

The defendant attorney was retained by an estate to file for Medicaid in order to pay nursing home expenses and to file a transfer-on-death deed for the transfer of a home. The defendant attorney claimed she was only retained to file the Medicaid paperwork. During the parties’ initial meeting in March of 2014, the defendant attorney discussed Medicaid paperwork and the fact that the home needed to be transferred into another family member’s name. In June 2014, the defendant attorney met with the decedent’s family to discuss the nursing home debt. The defendant attorney asked the decedent’s family to complete another Medicaid application because she had lost the first application they filled out months earlier. The defendant attorney never filed the Medicaid application. The estate claimed that during the next few months, the defendant attorney failed to communicate with them, citing that she was experiencing family health matters and her husband had passed away. In October 2014, in response to the nursing home’s attorney's letter inquiring about payment for the outstanding bill, the defendant attorney replied that her husband had passed away and it was taking her longer than she expected to “get back in the saddle”. The decedent’s family e-mailed the defendant attorney in November 2014 to inquire about the Medicaid application and received no response. The nursing home’s attorney attempted to contact the defendant attorney on numerous occasions. In January 2015, the decedent’s family sent an e-mail to the defendant attorney terminating her services and indicated they were advised that the Medicaid application was never filed. The defendant attorney’s detailed invoice did not include a reference to filing the Medicaid application. The executor of the estate filed suit against the defendant attorney alleging that the defendant attorney breached her legal duties to the estate by not filing the Medicaid application, failing to respond to communications from the estate, and failing to respond to communications from the nursing home’s attorney. The defendant attorney filed a motion for summary judgment as to all of the estate’s claims, which was granted by the trial court due to the fact that the estate failed to support its legal malpractice claims with expert testimony. The estate filed an appeal, arguing that the trial court erred in granting the defendant attorney’s motion for summary judgment because the defendant attorney’s errors were so obvious that expert testimony was not necessary to demonstrate that she breached her duty of care. The Court of Appeals noted that, in order to substantiate a claim for legal malpractice a plaintiff ordinarily must demonstrate, through expert testimony, that the representation of the attorney failed to meet the prevailing standard of care and that the failure proximately caused damage or loss to the client. However, where the alleged errors are sufficiently simple and obvious it is not necessary for an expert’s testimony to demonstrate the breach of the attorney’s standard of care. The Court held that it is within the ordinary knowledge of lay people to determine whether a lack of communication between the parties and failure to file necessary paperwork could constitute a breach of duty. The Court of Appeals reversed the trial court’s decision granting summary judgment to the defendant attorney and remanded the proceedings to the trial court, as expert testimony was not necessary for the errors alleged by the estate.

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