Monday, October 19, 2020

Good Timing

An attorney-client relationship did not exist at the time of alleged legal malpractice and negated the liability of a departing attorney, according to  decision of the West Virginia Supreme Court of Appeals.

The underlying case was a medical malpractice claim.

Attorney Dragisich parted ways with Grishkevich & Curtis, PLLC, three months after he signed the January 3, 2011 retention agreement with Petitioner McCoy. This separation was memorialized on April 15, 2011, when Attorney Grishkevich and Attorney Michael Curtis, as members/owners of Grishkevich & Curtis, PLLC, and Attorney Dragisich, as the member/owner  of the newly formed Dragisich Law Office, PLLC, entered into an agreement outlining which files Attorney Dragisich would transfer to his new law office. In that agreement, it stated that all “cases and clients not specifically mentioned above shall be the sole property and responsibility of Grishkevich & Curtis and Grishkevich & Curtis, PLLC.” Listed in the agreement were approximately forty-three cases that Attorney Dragisich would take with him to his new firm. The claims encompassed by the retention agreements in the case sub judice—regarding the estate of Mrs. Bain—are not specifically listed in the April 15, 2011 agreement.

Then, in August of 2011, the law firm of Grishkevich & Curtis, PLLC, dissolved. On August 30, 2011, Attorney Grishkevich sent Plaintiff McCoy a letter, on her personal letterhead, that informed Plaintiff McCoy of the firm’s dissolution. In the letter, Attorney Grishkevich emphasized that she and her paralegal were still handling the potential claim of Mrs. Bain’s estate on behalf of the Petitioners. Attorney Grishkevich never brought any action on behalf of the estate.

Thus the malpractice claim

In October of 2012, Petitioners filed a legal malpractice claim against Attorney Grishkevich, Grishkevich & Curtis, PLLC, and Attorney Dragisich. In the Complaint, the attorneys and law firm were alleged to have committed legal malpractice by not bringing a wrongful death action within the statute of limitations. Eventually, the claims against Attorney Grishkevich, other lawyers, and the firm were settled. The Circuit Court granted summary judgment in favor of Attorney Dragisich finding that (1) there was no attorney-client relationship between Petitioners and Attorney Dragisich; and (2) Attorney Dragisich did not owe any legal duty of care to the Petitioners. This appeal followed.


we find that the Petitioners failed to establish that their attorney-client relationship with Attorney Dragisich existed at the expiration of the statute of limitations. In light of the passage of time, the April 2011 agreement between Attorney Dragisich and Attorney Grishkevich’s firm, and Attorney Grishkevich’s subsequent letters to Mr. Bain, in conjunction with all of the record cited above, we conclude that any attorney-client relationship between Attorney Dragisich and the Petitioners was terminated long before the expiration of the statute of limitations.

Thus, because the attorney-client relationship between Petitioners and Attorney Dragisich was terminated before the expiration of the statute of limitations, there was no breach of duty by Attorney Dragisich. Therefore, Petitioners’ legal malpractice claim must fail as a matter of law.

(Mike Frisch)

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