December 9, 2008
No Summary Judgment In Legal Malpractice Case
The Oregon Court of Appeals reversed an order granting summary judgment to a lawyer defendant in a legal malpractice action. The putative client had sought assistance with respect to a property division in a divorce case. It was undisputed that the client wished to limit costs. The client consulted the lawyer, who referred him to a paralegal for assistance:
In July 2001, plaintiff met with defendant. Plaintiff showed defendant the informal agreement that he and his wife had reached, and they discussed that agreement in detail. Plaintiff and defendant had several subsequent meetings, and they discussed the parties' assets and possible distribution of those assets during each meeting. During one of the meetings, defendant told plaintiff that "what [plaintiff and his wife] had agreed upon was adequate." Defendant then "referred [plaintiff and his wife] to 'Karen[,]' a paralegal who he said did good work and to whom he had referred other people." Plaintiff then contacted the paralegal and asked her to prepare the documents for the final property division.
When the agreement was drafted by the paralegal, the client had the lawyer review it. After executing the document, he later consulted with another lawyer, who advised him of problems with the agreement. The client sued the first lawyer for malpractice, contending that (1) the referral to an untrained paralegal (2) advising that the paralegal was competent to handle the matter (3) failing to determine the nature and complexity of the matter and (4) failing to advise the plaintiff to seek the advice of a competent attorney established a viable malpractice claim.
The court held that there was evidence that the defendant had suggested that the paralegal route was the "way to go" and was sufficient to create a triable issue of legal malpractice. (Mike Frisch)
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