Articles Posted in Legal Malpractice

Here is an interesting article on a lawyer who sues lawyers.

The Tennessee Supreme Court has rejected the notion of a locality rule for lawyers in legal malpractice cases.

In Chapman v. Bearfield, No. E2004-02596-SC-R11-CV  (Tenn. S. C., November 6, 2006), the Court said that "a single, statewide professional standard of care exists for attorneys practicing in Tennessee and that expert witnesses testifying in legal malpractice cases must be familiar with the statewide professional standard of care." 

Stated differently, "[a]n attorney practicing in Tennessee, then, must exercise the ordinary care, skill, and diligence commonly possessed and practiced by attorneys throughout the state. Indeed, while there may be local rules of practice within the various judicial districts of our State, there are no local standards of care. There is only one standard of care for attorneys practicing in Tennessee: a  statewide standard."  (Emphasis supplied by the Court.)

Believe it or not yesterday’s post brought in more comments than any other post in a 24-hour period.  I have published some of the comments; other comments seemed to address personal situations so I thought it best to pass on those.

Let me respond to several  of the comments.  Bill said "a judgment that is seemingly noncollectible today may be collectible tomorrow. Have you given any thought to this argument? In other words, what kind of proof should a victim of malpractice be required to produce?" 

First, the plaintiff should have to prove the amount of liability insurance, if any, available to the original defendant.  Second, if the plaintiff wants to collect a judgment more than the amount of the liability insurance originally available, he or she should have to prove that it was more likely than not that the plaintiff could have collected more than that amount from the tortfeasor.  This will require proof of the income, assets and liabilities of the original defendant.  In appropriate cases, the lawyer defendant will want to demonstrate that the income, etc of the original defendant is such that the plaintiff cannot prove that the judgment would not have been collectible.

I am currently defending a legal malpractice case for a friend of mine and have insisted that the plaintiff prove that amount of damages that would have been collectible in the underlying tort case.  I have a hearing on this issue coming up shortly; the trial is this Winter.

I think the burden of proving collectibility should be on the plaintiff because it should be deemed part of the causation argument.  More specifically, the plaintiff has to prove damages by reason of the alleged malpractice of the lawyer.   (The lawyer failed to have process re-issued in a timely fashion, and the case was dismissed with prejudice).  That means plaintiff must prove that what damages, if any, he would have been able to collect in the underlying tort action against the original defendant.  The plaintiff should not be able to collect more damages from the lawyer defendant that he would have been able to collect against the original defendant.  What the plaintiff lost was the right to proceed to trial against the original defendant, and therefore what he should be able to collect from the lawyer is what he could have collected from the original defendant. 

Illinois Legal Malpractice Blog has a post that highlights a recent case taking the opposite view but goes on to cite cases that set forth the majority (and better reasoned) view.

In Pederson v. Barnes the Alaska Supreme Court was faced with the issue of the circumstances under which a guardian’s lawyer is liable to the ward for  the guardian’s wrongdoing.

Aiken became Barnes’ guardian after Barnes’ parents died.  (Barnes was a minor at that the time of their death.) Pederson represented Aiken in the proceedings to become Barnes guardian.   In about two years the $111,000 estate was almost entirely dissipated.

Barnes sued Aiken and Pederson and another lawyer working with Pederson.  The lawyers moved for summary judgment, arguing that they did not have any actual knowledge of wrongdoing by Aiken.  The motion was denied, and the jury returned a verdict against Pederson for compensatory and punitive damages.

When a lawyer is sued for negligence in conjunction with the appellate process who decides whether or not the appeal would have been successful, judge or jury?

The judge makes the decision, according to the Illinois Supreme Court.  The Court said that "the issue of proximate cause in an appellate legal malpractice action is  inherently a question of law for the court and not a question of fact for the jury."

The case is Governmental Insurance Exchange v. Judge, Docket No. 100668 (Ill. S.Ct. May 18, 2006).  Read it here.

The Texas Supreme Court has ruled that executors of an estate can sue the decedent’s attorney for malpractice for negligently providing estate planning advice.

In Belt v. Openheimer, Blend, Harrison & Tate, Inc., No. 04-0681 (May 5, 2005), the executors claimed that poor estate planning cost the estate $1.5M that could have been avoided by competent estate planning. The defendants argued that they owed no duty of care to anyone outside the attorney-client relationship, relying on a prior Texas decision which did not permit trust iciaries to sue a lawyer who drafted a trust which was set aside as invalid. (Noe: Texas is in the minority in this position. “In the majority of states, a beneficiary harmed by a lawyer’s negligence in draftting a will or trust may bring a malpractice claim againt the attorney, even though the beneficiary was not the attorney’s client.”

Under these facts, however, the Texas Supreme Court found that a duty existed. Noting that Ohio, Virginia, Oregon, and Illinois permit such actions, the Court said “estate-planning malpractice claims seeking recovery for pure economic loss are limited to recovery for property damage. … Therefore, in accordance with the long-standing, common-law principle that actions for damage to property survive the death of the injured party, we hold that legal malpractice claims alleging pure economic loss survive in favor of a deceased client’s estate, because such claims are necessarily limited to recovery for property damage.”