November 19, 2007
Summary Judgment Not Upheld In Legal Malpractice Case
The personal representative of a client who was defended in civil litigation by a law firm sued the firm for malpractice. The theory of the suit was that the lawyers "negligently pursued counterclaims and third-party claims that failed as a matter of law and failed to plead other claims that...were viable and would not have been dischargeable in [the opposing party's] bankruptcy." The trial court entered judgment in favor of the lawyers.
On appeal, the D.C. Court of Appeals reversed in part the trial court's dispositive order. The court agreed that summary judgment on most of the claims was appropriate "because the fatal flaw...was the lack of an expert witness who would opine that the Lawyers breached the standard of care." However, the trial court "too narrowly construed or overlooked some of [plaintiff's] allegations regarding the Lawyers' failure to bring an alternative fraud-related claim or claims in the underlying litigation." The case was sent back to the trial court to permit discovery into this claim.The court rejected contentions that the trial court demonstrated partiality to the Lawyers or that the plaintiff was unduly prejudiced by her pro se status ("[plaintiff] has shown herself in her briefs and oral argument to be intelligent, articulate and sophisticated"). Mike Frisch)
As we have previously noted, a failure to fully participate in the bar disciplinary process can be, as a hearing panel in Illinois noted, "the strongest of profession ending options." The panel recommends disbarment for neglect of seven matters as well as failure to follow through with the process despite participation in the early stages:
"we consider Respondent’s failure to fully cooperate and participate in the disciplinary proceedings. Although Respondent did file an answer to the Complaint and participated in two pre-hearing conferences, he failed to participate in two other pre-hearing conferences, failed to file his Rule 253 witness list, failed to appear for his deposition, and did not appear at the hearing. The Supreme Court has stated that an attorney’s failure to cooperate in his or her own disciplinary proceeding demonstrates a want of professional responsibility and is a factor to be considered in aggravation for the purpose of determining an appropriate sanction. Hearing panels in other cases have warned that when an attorney fails to attend his hearing, he is taking the "strongest of profession ending options" and "should be viewed as refusing to concede to the inherent authority and power of the Illinois Supreme Court." (citations omitted) (Mike Frisch)