Wednesday, March 7, 2012

Untracked Changes

The Montana Supreme Court reversed a grant of summary judgment to an attorney and firm in a legal malpractice suit.

The attorney was retained to represent an individual client (and entities created on his behalf) in a boundary negotiation with a golf course. The client wished to develop adjacent property.

The attorney submitted a draft agreement to opposing counsel. The attorney for the golf course made a series of untracked changes in the agreement and returned it. The attorney did not review the changes and had the client sign it with the changes.

Thereafter, things went poorly for the client. The deal went south and the client lost his home. He filed a pro se suit against the attorney in the name of the entity. He then retained counsel, who filed suit in another county.

The key question was whether, for statute of limitations purposes, the suit initiated through counsel related back to the pro se suit. The court rejected the contention that the pro se suit in the name of the entity was a nullity. Rather, the remand directs the lower court to consider factors in resolving the "relate back" issue.

Practice pointer: Always make sure there are no untracked changes of opposing counsel in a document you have your client sign. (Mike Frisch)

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