Legal Profession Blog

Privity Still Required

The Maryland Supreme Court has upheld the "strict privity rule" in legal malpractice cases

In this legal malpractice case by the beneficiary of an inter vivos trust against the drafting attorney, we are mainly asked to abandon or relax the rule—known as the “strict privity rule”—under which “a third party not in privity with an attorney has no cause of action against the attorney for negligence in the absence of fraud or collusion.” Noble v. Bruce, 349 Md. 730, 738 (1998). Alternatively, the beneficiary asks us to hold that she can proceed against the attorney on a third-party beneficiary theory. As explained below, we hold that the strict privity rule under Noble is still good law and that, on the undisputedfacts, the beneficiary does not have a claim against the attorney as a third-party beneficiary.

The representation

In 2015, Madelyn Bennett’s mother, Pauline Bennett, age 91, retained Respondent Thomas Gentile, Esquire, to prepare her estate planning documents. Mr. Gentile prepared a trust instrument memorializing the terms of the Pauline A. Bennett Revocable Living Trust (“Trust”), which Pauline executed on October 30, 2015 (“2015 Instrument”). Pauline wore three hats under the 2015 Instrument: “Settlor,” “Trustee,” and “Beneficiary.” The 2015 Instrument was broken down into nine sections, each with one or more subsections.

A second document was prepared by the attorney in 2017

But the 2017 Instrument also made some significant changes. Subsection 1.02 was changed to acknowledge that Pauline had transferred the property as contemplated in the prior version, and it retained the provision stating that she “agree[s] to hold any such property, IN TRUST, on the terms set forth in this instrument.” Also, by that time, [Pauline's son] Matthew had died, so the provisions addressing Fillmore and its contents were modified to replace Matthew with Pauline’s grandson, Jonathan. Audrey was added as a Successor Trustee to serve jointly with Madelyn.

At issue was the inheritance of property located at 4715 Wissahican Avenue in Rockville (“Wissahican”)

Perils of Pauline

In 2019, while temporarily living in a nursing facility, Pauline learned that [Madelyn's  daughter] Audrey had withdrawn money from Pauline’s bank accounts, used Pauline’s credit cards without authorization, and mismanaged Pauline’s money. In November 2019, Pauline expressed these concerns and others to Mr. Gentile, including her fear that she lacked sufficient funds to pay for home nursing care. She told Mr. Gentile that she needed to sell Wissahican to pay for that care. Recall that under subsection 2.01, as Trustee, Pauline was required to “utilize” Wissahican “for the benefit” of Audrey, so an amendment to the 2017 Instrument would be required to use that property for her benefit, that is, to sell Wissahican and use the proceeds for her own needs. Pauline asked Mr. Gentile to adjust her estate planning documents accordingly and told Mr. Gentile “don’t put anything about [Wissahican] going to Audrey.”

Mr. Gentile prepared a new trust instrument called the “Amended Revised Pauline A. Bennett Revocable Living Trust,” which Pauline signed on November 20, 2019 (“2019 Instrument”). This version contained the same nine sections as the two previous ones, again with most of the provisions unchanged. Subsection 2.01 was amended by removing the clause that required Pauline to use Wissahican for Audrey’s benefit.

In addition, subsection 3.01 was changed substantially. The provision in subsection 3.01 calling for Audrey to receive Wissahican upon Pauline’s death was removed.

As is invariably the next event in a probate dispute

Pauline died on December 31, 2019, and Madelyn became the Successor Trustee of the Trust. A dispute arose between Madelyn and Audrey over the ownership of Wissahican. Audrey believed she was entitled to Wissahican due to a deed, signed by Pauline in November 2019, that would have transferred Wissahican to Audrey. After Pauline executed the deed, and due to her concerns about Audrey’s conduct, Pauline instructed Mr. Gentile not to deliver it to Audrey, and the deed was never delivered or recorded. In January 2020, Audrey’s counsel asked Mr. Gentile to record the deed or deliver it to Audrey, but Mr. Gentile refused.

Madelyn sued Audrey and lost

The circuit court resolved the first question in Audrey’s favor on summary judgment. Construing the terms of the 2017 Instrument and 2019 Instrument, the court held that the provisions regarding Wissahican in the former were untouched by the latter, which meant that the disposition of Wissahican was governed by the 2017 Instrument—so the property went to Audrey.

Then sued the attorney

Now to the claims that bring this matter before us. Having lost the battle over Wissahican to Audrey, Madelyn pursued her claims against Mr. Gentile. Madelyn argued that Pauline intended that Wissahican or any remaining proceeds from its sale would, along with all other Trust property, go to her upon her mother’s death. She alleged that but for Mr. Gentile’s negligent drafting of the 2019 Instrument, Wissahican or its sales proceeds would have been distributed to her upon Pauline’s death. She argued that Mr. Gentile admitted under oath that he had made a drafting mistake by failing to specifically provide for the transfer of Wissahican or its sales proceeds to Madelyn in the 2019 Instrument. To substantiate her claim of negligent drafting, Madelyn relied on the circuit court’s determination, confirmed by the en banc panel, that the provisions of the 2017 Instrument regarding Wissahican remained in effect when Pauline signed the 2019 Instrument.

The case was thrown out on summary judgment; hence this appeal and invitation to overturn existing law

Madelyn urges this Court to overturn Noble and abolish the strict privity requirement for legal malpractice claims involving the negligent drafting of estate documents or negligent estate planning advice. She argues that beneficiaries should not be denied a remedy for injuries proximately caused by the negligence of the attorney who drafted the estate planning documents or rendered negligent advice to the attorney’s now-deceased client. Madelyn also points to the modern trend of abandoning or relaxing the strict privity rule in this context. She notes that only a few states, other than Maryland, apply the strict privity rule in claims against the drafting attorney. She contends that six states and the District of Columbia allow disappointed beneficiaries to sue estate planning attorneys in tort actions despite a lack of privity.

The court concluded that stare decisis compelled the result

Having determined that the strict privity rule survives Madelyn’s challenge, we turn to the only exception recognized by this Court: the third-party beneficiary exception...

Accordingly, under Noble and Ferguson, a testamentary beneficiary is not automatically a third-party beneficiary of the attorney-client relationship. To claim thirdparty beneficiary status, the beneficiary will have to allege and then prove, as the Court said in Flaherty, “that the intent of the client to benefit the non-client was a direct purpose of the transaction or relationship.” 303 Md. at 130-31.

Result

We conclude that the circuit court was correct in granting summary judgment for Mr. Gentile on whether Madelyn was an intended third-party beneficiary of Pauline’s and Mr. Gentile’s attorney-client relationship. The material facts, which were not genuinely disputed, showed that Pauline’s primary intent in revising the Trust in 2019 was to ensure that she had enough money to fund her care and to ensure that Audrey received none of the Trust property. That is not to say Pauline did not want Madelyn to reap a benefit if the sales proceeds she had anticipated from Wissahican’s sale were not depleted by the time she died. But, as the circuit court observed, “Pauline’s direction that Madelyn, her only other living child, receive ‘anything left’ was [nothing] more than incidental to removing Audrey as beneficiary.” The circuit court did not err in granting summary judgment on that basis.

Oral argument linked here. (Mike Frisch)

California Expert May Be Able To Opine On Wyoming Malpractice

The Wyoming Supreme Court reversed the grant of summary judgment in favor of law firm defendants in a legal malpractice case

Victoria Loepp appeals the district court’s summary judgment order that dismissed her legal malpractice claims and all other claims she brought against her former counsel (Appellees). The district court’s summary judgment decision was based on its concurrent order striking her malpractice expert. Because the district court did not fully analyze the proffered expert’s reliability and fitness under W.R.E 702, and because we find no other basis on which to affirm the court’s summary judgment order, we reverse and remand.

Issue

The issue presented is whether an out-of-state expert may provide opinion testimony about the standard of care in legal malpractice actions in Wyoming.

The underlying case involved an inheritance dispute between sisters over their late mother's house

Ms. Loepp hired attorney Ryan Ford of Williams, Porter, Day & Neville, P.C. to help. Mr. Ford sent Ms. Scott a demand letter. He also initiated an eviction by serving a Notice to Quit. He ultimately negotiated with Ms. Scott’s attorney to settle the dispute by Ms. Loepp selling the house to Ms. Scott for $90,000. On March 22, 2019, the title company managing the closing of the transaction received the funds from Ms. Scott. The next day, Ms. Loepp notified Mr. Ford that she would not accept the money or settlement terms. Ms. Loepp declined Mr. Ford’s advice to abide by the settlement agreement, and Mr. Ford withdrew from representation.

Scott Murray replaced Mr. Ford as Ms. Loepp’s counsel. He prepared a complaint to file against Ms. Scott for a declaratory judgment and to quiet title. However, before that complaint was filed, Ms. Scott sued Ms. Loepp for breach of contract and related claims, seeking specific performance of the agreement to sell her the house. In April 2020, the district court entered summary judgment in favor of Ms. Scott. The remainder of Ms. Scott’s suit settled when Ms. Loepp agreed to transfer the property to Ms. Scott in exchange for the $90,000.

Loepp pursued the malpractice case pro se and retained a California attorney as her expert.

Mr. Watters based his opinions on his knowledge and experience as a trial attorney, as a practice group leader and managing partner in his firm, as a torts professor, and as a frequent expert witness in fee disputes. To support his assertions that the Appellees misapplied contract law, Mr. Watters included a legal memo which cited Wyoming case law and referenced the Restatement of Contracts.

The district court

After hearing argument on both motions, the district court acknowledged that Mr. Watters brought experience, finding it “nothing short of impressive,” but found Mr. Watters did not speak with any Wyoming attorneys and that his research of legal standard  consisted only of comparing some rules between states. Accordingly, the court granted the motion to strike, concluding there was an insufficient showing that Mr. Watters had knowledge of “what a prudent Wyoming lawyer would have done.” Having stricken Ms. Loepp’s expert, the court then granted summary judgment on all claims. Ms. Loepp timely appealed.

Out of state does not necessarily mean out of luck (and court)

We therefore instruct the court on remand to analyze the reliability of Mr. Watters’s opinion under W.R.E. 702, considering the nature of each of Ms. Loepp’s malpractice claims and whether those claims are so state-specific that Mr. Watters could not assist the trier of fact.

Conclusion

Having determined that W.R.E. 702 governs the admissibility of expert opinion in legal malpractice cases and that where a proffered malpractice expert is licensed or practices is just one factor to consider in the W.R.E. 702 analysis, we reverse and remand for further proceedings on the motion to strike. Because we find no other basis on which to affirm the related summary judgment decision, we also reverse and remand the court’s summary judgment order for further proceedings consistent with this opinion.

(Mike Frisch)

Collectability

The Wyoming Supreme Court has held that collectability is an essential element of a legal malpractice action

In legal malpractice cases, the client claims an attorney’s negligence caused her damages. In some cases, like this one, the client alleges her damages are the loss of a legal action against a defendant (hereinafter referred to as the “underlying action”). In such cases, the client must show a “case within a case,” that is, that she would have obtained a favorable judgment in the underlying action but for the attorney’s negligence. The First Judicial District Court in Laramie County, Wyoming, certified four questions to this Court concerning what role, if any, the collectibility of the judgment in the underlying action plays in legal malpractice cases in Wyoming. We conclude the collectibility of the judgment is an essential part of the causation/damages element of a legal malpractice action which, like all elements of a civil cause of action, the client has the burden to prove by a preponderance of the evidence.

Alleged malpractice

Lula M. Tanner, age 90, resided at Deseret Health and Rehab at Rock Springs, LLC (Deseret). Deseret provided health care services. On January 30, 2015, Ms. Tanner began taking a new medication prescribed by her primary care physician. Her condition worsened and, about a week later, on February 5, 2015, an ambulance was called to take Ms. Tanner to the hospital. Ms. Tanner died a few hours later in the hospital’s emergency department. In January 2016, Ms. Tanner’s daughter, Patricia Kappes, contacted Diana Rhodes at the Diana Rhodes Law Firm, LLC, for a legal opinion concerning whether she had any legal recourse for her mother’s death against any of her mother’s health care providers. Ms. Rhodes agreed to “investigate” the matter. On February 9, 2017, Ms. Kappes called Ms. Rhodes for an update and noted her concern about the statute of limitations, which she believed was three years. Ms. Rhodes stated they had two years from Ms. Tanner’s death on February 15, 2015, to file suit. Ms. Kappes corrected Ms. Rhodes, stating Ms. Tanner died on February 5, 2015. Thereafter, Ms. Rhodes discovered she had mis-calendared the end of the limitations period as February 15, 2017, rather than February 5, 2017.

Ms. Rhodes retained successor counsel and sued the attorney.

The court here surveyed the law regarding collectability as an essential element rather than an affirmative defense and answered the certified question

The collectibility of the underlying judgment is an essential part of the causation/damages element of a legal malpractice action in Wyoming which, like the other elements, the client has the burden to prove by a preponderance of the evidence.

(Mike Frisch)

Except

The New York Appellate Division for the First Judicial Department affirmed the denial of a motion to dismiss a legal malpractice and breach of contract claim

In this case, plaintiff alleges that on or about February 28, 2012, she was terminated from Chanel after nineteen years of employment. She was not satisfied with the severance package offered and believed that her employment was terminated on the basis of discrimination. Plaintiff thus consulted with defendant to negotiate a more favorable separation and release agreement (the Agreement) from Chanel that would still permit her to retain her legal right to move forward on her discrimination claims.

After a few weeks of negotiation, defendant received the final draft of the Agreement from Chanel which contained language that included a release from any discrimination claims. Unbeknownst to plaintiff at the time, defendant unilaterally and without plaintiff's consent, changed one word in the Agreement so that plaintiff would be released from all of her rights as part of the settlement, except for any right arising under Title VII, the New York State Human Rights Law and the New York City Human Rights Law, thereby allowing plaintiff to still file a lawsuit under these statutes. Plaintiff was instructed by defendant to initial each page of the release and sign it, which she did.

On or about April 15, 2012, plaintiff received her first severance check. Subsequently, on or about September 6, 2012, defendant filed a discrimination lawsuit on plaintiff's behalf in the United States District Court for the Southern District of New York (Allen v Chanel, Inc., et al., 12-cv-6758 (LAP). Chanel's motion to dismiss was denied on the grounds that plaintiff had not knowingly or voluntarily waived any of her rights to file a discrimination lawsuit against Chanel.

On or about December 3, 2012, defendant emailed to plaintiff an affidavit that he had prepared and instructed plaintiff to sign, that stated that plaintiff herself, not defendant was responsible for modifying the Agreement.

On or about June 18, 2013, Chanel filed a counterclaim in the Federal action alleging that plaintiff knowingly and fraudulently misrepresented the severance agreement to Chanel and demanded that they be reimbursed the amount already paid in severance to plaintiff as well as for the costs of defending the discrimination lawsuit. Chanel then filed a motion for summary judgment on its counterclaim as well as on the discrimination claims, which was granted on or about November 13, 2014, and Chanel was awarded damages.

Plaintiff further alleges that she expressed to defendant the importance of having the discrimination suit sealed upon completion, as it would harm her job and career opportunities. She was continuously assured by defendant that he would make sure it was sealed and there was nothing to worry about. However, this was never done.

On or about November 30, 2020, plaintiff filed the instant action.

The first judge who handled defendants' motion to dismiss issued an Interim Order setting the matter down for a traverse hearing to determine whether the summons and complaint were properly served. After the testimony of the process server, the defendant conceded that service was proper, and the motion court determined that the "traverse [was] overruled." The balance of the grounds upon which the motion to dismiss was made were never addressed by the first motion court.

The defendant then moved for an order to reargue the original decision to the extent it did not consider those portions of his motion seeking dismissal pursuant to CPLR 3211 (a)(1), (5) and (7) dismissing plaintiff's first cause of action for legal malpractice, second cause of action for breach of fiduciary duty, third cause of action for breach of contract, or alternatively, extending defendant's time to respond to the complaint. Since none of these issues were decided the first time around, it was not error for Justice Kraus to decide the motion to dismiss on the other grounds raised by defendant on the merits as well as to determine that so doing rendered the motion to reargue moot (Poland v B. & N. Cab Corp., 51 AD2d 692 [1st Dept 1976]).

On the merits, the complaint sufficiently states a claim for legal malpractice. Defendant fails to offer a reasonable explanation as to how changing a word in the release entered into between his client and her former employer, which substantially changed the meaning of the contractual provisions, or suborning his client's perjury in the related Federal discrimination action, constitute reasonable strategic choices (cf. Leon Petroleum, LLC v Carl S. Levine & Assoc., P.C., 122 AD3d 686, 687 [2d Dept 2014]). Plaintiff also sufficiently pleaded causation by asserting that defendant's failure to seal the file in the federal action damaged her job-hunting efforts for new employment. While plaintiff did not identify specific lost employment opportunities on this basis, she did allege specifically that she was told this was the case by recruiters. At the pleading stage, this is sufficient (see Gotay v Breitbart, 14 AD3d 452, 454 [1st Dept 2005]).

Moreover, the claims were not barred by the statute of limitations, which was tolled by both executive order (9 NYCRR 8.202.8), as extended, and the continuous representation doctrine (Murphy v Harris, 210 AD3d 410, 411 [1st Dept 2022])

(Mike Frisch)

Idaho Clarifies Proof Requirement In Legal Malpractice

The Idaho Supreme Court affirmed the grant of summary judgment against a plaintiff who had sued her former attorneys for legal malpractice.

It is undisputed that the defendants had filed suit against a medical center on behalf of the plaintiff shortly after the statute of limitations had expired.

The court rejected a standard that the suing plaintiff had only show some chance of success in the underlying medical malpractice case

we now disavow the “some chance of success” rule from Murray and the cases applying it. Instead, we fully reiterate the standard advocated by Respondents and cited in Lanham, 164 Idaho at 359, 429 P.3d at 1235, that a plaintiff in a legal malpractice case must generally prove a “case within a case” to establish proximate cause. In Lanham, we first set forth the elements of a legal malpractice claim against an attorney in Idaho:

(1) the existence of an attorney-client relationship that gives rise to a duty of care on the part of the attorney to the client; (2) an act or omission by the attorney in breach of the duty of care; (3) the breach of the duty was a proximate cause of damage to the client; and (4) the fact and extent of the damages alleged. Id. We then explained, “[a]s in many other torts, the plaintiff bears the burden of proving each of these elements by a preponderance of the evidence.” Id.

In so holding, we also recognized the nuance in legal malpractice cases that comes in establishing proximate cause—that cause “which, in natural or probable sequence, produced the complained injury, loss or damage complained of. It need not be the only cause. It is sufficient if it is a substantial factor in bringing about the injury, loss or damage.” Beebe v. N. Idaho Day Surgery, LLC, 171 Idaho 779, 526 P.3d 650, 657 (2023)

The Lanham precedent

This reference was the Court’s effort to clarify that plaintiffs in legal malpractice cases shoulder a heavy burden. They must try two cases: The legal malpractice case before the court and the underlying case in which the lawyer allegedly committed malpractice. Respondents cited Lanham in support of this standard in their joint memorandum in support of their motion for summary judgment. While Rich also cited Lanham in her opposition memorandum to summary  judgment, she argued that the case is “entirely inapposite to this case.” In reality, Lanham and the premise for which it stands are squarely on point with the issue before us.

The lack of admissible expert testimony was fatal to the "case within a case" proof

Rich argues that the district court abused its discretion in deciding that her experts were not qualified to testify. Her argument turns on the conclusion that the district court applied the wrong legal standard to evaluate the foundation for her three experts: (1) attorney Lance Nalder, (2) Dr. Garber, and (3) Nurse Collins. Because the alleged legal malpractice occurred while handling a medical malpractice case, the district court had to analyze Rich’s expert witness disclosures under the standard required by Idaho Code sections 6-1012 and 6-1013. The remaining issue hinges on whether any of Rich’s expert witnesses provided admissible testimony. For the reasons below, we hold that the district court did not abuse its discretion by striking Rich’s expert witnesses’ testimony. Thus, Rich failed to establish a breach of the standard of care in the medical malpractice case that would give rise to a viable legal malpractice case against Respondents.

(Mike Frisch)

Stalking Order Against Former Client Affirmed

The Vermont Supreme Court affirmed the grant of an order against stalking brought by an attorney against a former client

In October 2022, plaintiff filed a complaint for an order against stalking against defendant. Plaintiff, who is an attorney, alleged that she represented defendant from July 2021 to September 2022 in a criminal proceeding for domestic assault. Plaintiff alleged that defendant had been making angry and abusive phone calls to her office, causing plaintiff, her law partner, and her support staff to fear for their safety. Defendant also sent plaintiff a letter in which he complained about a lost billfold, accused plaintiff of covering up for whoever did it, and demanded that she put $5000 on his account. The letter concluded, “I have your home address,” and listed plaintiff’s Essex County address. Defendant filed a motion to dismiss, arguing that plaintiff had mischaracterized his letter and made false statements in her affidavit. He appeared to claim that his actions were justified because she had lost his wallet. The court held a final hearing on October 19, 2022. Plaintiff attended, but defendant did not. The court issued a one-year order against stalking that prohibited defendant from contacting plaintiff and ordered him to stay 300 feet away from plaintiff and her home and office.

On appeal, defendant argues that plaintiff violated the Vermont Rules of Professional Conduct by losing his wallet as well as a large sum of cash that she had obtained from police on his behalf for safekeeping. He asserts that only after calling plaintiff’s office multiple times did she compensate him by depositing funds into his prison account. He claims that he was unable to attend the final hearing because his case manager in the prison did not set up a connection for him. He argues that the court never ruled on his motion to dismiss. He claims that plaintiff violated attorney-client privilege and lied on her affidavit in support of the complaint, that his actions did not constitute stalking, and that she only filed the complaint because he had sued her to recover damages for his lost wallet. Finally, he appears to argue that the Essex Unit of the superior court lacked jurisdiction over plaintiff’s complaint because defendant mailed the letter to plaintiff’s office in Lyndonville, which is in Caledonia County.

On appeal

We are unable to review defendant’s claims that the evidence did not support the trial court’s determination that he stalked plaintiff, that his actions were justified by plaintiff’s conduct, or that plaintiff’s statements were not credible, because defendant did not order a transcript of the final hearing below.

(Mike Frisch)

No Personal Jurisdiction

A law firm that sued for unpaid fees failed to establish personal jurisdiction over the defendant former clients, according to a decision of the New York Appellate Division for the Second Judicial Department.

The plaintiff Cary Scott Goldinger, an attorney licensed to practice law in New York, and his law office, the plaintiff Law Office of Cary Scott Goldinger, P.C., with its principal place of business in New York, commenced this action against the defendants alleging, inter alia, that the defendants owed them legal fees. The plaintiffs alleged that they represented the defendants Sloan Fine Art, LLC (hereinafter Sloan), SFA Investing, Inc. (hereinafter SFA), and Barbara Marburger, an art dealer who was the sole and managing member of Sloan and SFA (hereinafter collectively the Marburger defendants), as well as the defendants Luba Deluca, Moisonzhnick Fine Art, LLC, and MFA, LLC (hereinafter collectively the MFA defendants), in an action commenced by a third party against the Marburger defendants and the MFA defendants in New Mexico, and allegedly represented the MFA defendants in a related action against the same third party in New York.

In response

The Marburger defendants moved pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against them for lack of personal jurisdiction, contending, among other things, that the plaintiffs only represented the Marburger defendants in connection with the action commenced in New Mexico, that Barbara Marburger never traveled to New York to meet with the plaintiffs in connection with their alleged representation of the Marburger defendants, and that she never signed an engagement letter with the plaintiffs. In opposing the Marburger defendants’ motion, the plaintiffs submitted only an unsworn memorandum of law. The Supreme Court granted the Marburger defendants’ motion. The plaintiffs appealled.

And lost

The complaint alleged only that the plaintiffs represented the Marburger defendants in the New Mexico action, not in the New York action (see Bloomgarden v Lanza, 143 AD3d at 852). Further, the plaintiffs failed to allege that the Marburger defendants solicited the plaintiffs’ legal services (see Paterno v Laser Spine Inst., 24 NY3d at 377; Fanelli v Latman, 202 AD3d at 760; cf. Fischbarg v Doucet, 9 NY3d at 385). Thus, the plaintiffs failed to sufficiently allege that the Marburger defendants projected themselves into New York and purposefully availed themselves of the benefits and protections of New York’s laws governing lawyers (cf. Fischbarg v Doucet, 9 NY3d at 385). Moreover, the statement in Barbara Marburger’s affidavit that she occasionally traveled to New York to attend art fairs and to visit New Mexico clients who have homes in New York City did not support a prima facie showing of personal jurisdiction, as there was no showing of an articulable nexus or substantial relationship between those activities and the causes of action asserted by the plaintiffs against the Marburger defendants.

Dan's Papers has an interesting profile of the plaintiff. (Mike Frisch)

Case Within A Case

The Indiana Court of Appeals affirmed the denial of summary judgment to the defendant a legal malpractice case

Nancy Lemen (Lemen) and her husband Mark (Mark) (collectively the Lemens) entered into a retainer agreement with Kevin L. Moyer and Moyer Law Firm, P.C. (collectively Moyer), to represent them against vascular surgeon Dr. Robert McCready, who provided medical care to Mark. Moyer did not file suit against the doctor before the statutory limitation period for medical malpractice expired, and Mark subsequently died. Lemen filed a complaint against Moyer alleging that he was negligent in not filing a medical malpractice action within the statutory limitation period and that he breached his contract with the Lemens. Moyer filed a motion for summary judgment, and Lemen filed a cross-motion for summary judgment. The trial court denied both motions. Moyer now appeals, arguing that the trial court erred in denying his motion. We disagree and therefore affirm.

Defendant had not established that the medical malpractice case could not be proven

Moyer’s summary judgment motion, which relied primarily on pre-Jarboe cases, merely pointed to Lemen’s lack of expert testimony to support her medical malpractice claim, and thus Moyer failed to meet his onerous burden of affirmatively negating that claim. In support of her opposition to Moyer’s summary judgment motion, Lemen designated Dr. Cameron’s report, which, at minimum, establishes genuine issues of material fact that are not conclusively negated by Dr. Skudder’s report. Based on the foregoing, we affirm the trial court’s denial of Moyer’s summary judgment motion.

(Mike Frisch)

Contingency Fee Not Enforced

The Nebraska Supreme Court affirmed the disposition of a civil action 

Sieg H. Brauer is a licensed attorney doing business as Brauer Law Office. Kent Hartmann and Kirk Hartmann are brothers and were, at all relevant times, joint owners of Hartmann Hay Co., LLC (HHC), a farming and livestock company. In December 2015, Kent met with Brauer about a claim that HHC wanted to bring against Wilbur-Ellis Company (WECO). WECO had provided agricultural services to HHC; according to Kent, WECO had negligently misapplied chemicals and caused some of HHC’s crops to fail during the 2014 crop year. Kent explained to Brauer that a setoff might be possible insofar as WECO had a potential claim against him for nonpayment of charges for chemicals and services. Brauer prepared an engagement letter, as well as a contingency fee agreement.

As to the potential counterclaim

Brauer later sent Kent an “Hourly Fee Agreement” for “General Matters Including Defending Claim by [WECO] for Chemicals.” The document was never signed and returned; however, the parties agree that with respect to WECO’s claim against Kent, Brauer agreed to defend Kent for a fee of $100 per hour.

The underlying case

HHC and WECO ultimately settled and dismissed their claims against one another with prejudice. As part of the settlement, neither HHC nor WECO admitted liability. On March 9, 2018, HHC and WECO obtained judicial approval of their settlement. Brauer billed Kent and HHC for unpaid fees and costs. For the most part, Kent and HHC failed or refused to provide the requested payments.

Hence this litigation

On August 25, 2021, the county court entered a judgment. The court found for Brauer on his first cause of action. But the court found for Kent and HHC on Brauer’s other causes of action. Specifically, the court concluded that Brauer was not entitled to recover under the contingency fee agreement. The county court also found that Brauer did not prove damages as necessary to recover for fraudulent misrepresentation. Brauer appealed to the district court.

The district court affirmed; hence Brauer's appeal

Here, the evidence at trial established that Brauer and Kent entered into two fee agreements, one being an hourly fee agreement and one being a contingency fee agreement. Brauer was previously paid $3,500 toward the hourly fee agreement and has received a judgment in the amount of an additional $3,876.70 under the hourly fee agreement. No party challenges these amounts. Brauer seeks to recover an additional $42,474.50 under the contingency fee agreement; thus, Brauer must produce evidence that the additional sum he demands is reasonable based on the work he has performed and the value he has provided through his services.

Insufficienct evidence

it suffices to say that Brauer has produced insufficient evidence of the work performed and value provided pursuant, specifically, to the contingency fee agreement. We can only speculate as to whether or not the claimed fee computed pursuant to the contingency fee agreement is reasonable.  Resultingly, Brauer has not met his burden in attempting to enforce the contingency fee agreement; because this conclusion is dispositive as to Brauer’s request for a contingency fee, we do not reach his assigned errors thereunder. Moreover, we express no opinion as to the general enforceability of what the appellees have labeled a “reverse” contingency fee agreement under Nebraska law. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it.

The claim of fraudulent misrepresentation also failed.

The case is BRAUER V. HARTMANN Cite as 313 Neb. 957. (Mike Frisch)

Avatar

The United States District Court for the District of Columbia (Judge Timothy Kelly) granted judgment on the pleadings to a defendant attorney sued by his former client.

This case is an episode in a long-running row between Plaintiff and Defendant, Plaintiff’s former lawyer. Having repeatedly failed to vindicate his belief that Defendant owes him money under their representation agreement, Plaintiff now sues alleging torts arising mostly from their first legal clash. Because he has not stated claims, the Court will enter judgment on the pleadings for Defendant.

Defendant had represented Plaintiff in a D.C. Superior Court case

Plaintiff’s case settled in 2013 without the award of any damages, and the same day, Defendant charged Plaintiff’s credit card for his services. Compl. at 6. Defendant also announced that he would keep Plaintiff’s retainer. Compl. at 6–7. Plaintiff disputed those charges, and so requested arbitration before a D.C. lawyer-client arbitration board. See Compl. at 43. Defendant then sued Plaintiff in Virginia state court. See Compl. at 8

Plaintiff, though, believed Defendant was bound by D.C. attorney-ethics rules to arbitrate their dispute. See Compl. at 8. He told Defendant so, and suggested that the two proceed to arbitration instead. See ECF No. 15-1 at 4–5. Defendant refused, claiming that any arbitration would require his consent—and that he would not agree. Id. at 5. Plaintiff replied with more information, and Defendant conceded that he did not “know anything” about the D.C. arbitration program, “having never used it before.” Id. at 6. But Defendant claimed that was irrelevant because arbitration would require the state court to stay its proceedings, which he said would “not happen.” Id. Those opening salvos kicked off years of multi-forum litigation. See generally Compl. at 10–16.

Plaintiff responded partly by suing Defendant in D.C. Superior Court for legal malpractice. Compl. at 43. That court held that Defendant was bound to arbitrate the dispute being heard by the Virginia court, but that it lacked jurisdiction to order further relief while the Virginia suit was pending. See Compl. at 51. Eventually, the Virginia court agreed, and the dispute proceeded to arbitration. ECF No. 12 at 34 n.22. But the Virginia court ultimately dismissed Defendant’s claims with prejudice. Compl. at 39–40. Thus, the D.C. Court of Appeals concluded that the arbitration was moot. ECF No. 12 at 5 n.3.

Towards the end of those battles, Defendant’s law firm received an unfavorable internet review. A user named “Alan R.,” whose avatar resembled the notorious murderer Charles Manson, called Defendant “sleazy” and advised potential clients to “[r]un away!” Compl. at 111. The review suggested that Defendant was incompetent and malicious. Id. Defendant responded to the posting online by explaining that he had “never represented an Alan R. or Charles Manson.” Id. at 112. He charged that Plaintiff, whom he called an “obsessed former client,” had posted the review under a false name and image. Id. He said Plaintiff had “posted many negative reviews” about him and “sued him unsuccessfully 6–10 times.” Id. But he took no issue with the chosen avatar—he stated that “Charles Manson is a perfect capture of [Plaintiff’s] psyche.” Id.

In D.C. federal court

Plaintiff sued Defendant in this Court both for filing the Virginia state-court case and for attributing the bad review to him.

The claims

Plaintiff brings four claims. First, he says Defendant conspired with another lawyer to deprive Plaintiff of money and his right to arbitration when Defendant sued him in Virginia state court. Compl. at 21–23. Second, he argues Defendant abused the Virginia court process by filing and maintaining that suit because his purpose was to evade required arbitration. Compl. at 23–24. Third, he claims that suit constituted malicious prosecution. Compl. at 24–25. Fourth, he contends that Defendant’s response to the online review invaded his privacy by portraying him in a false light. Compl. at 25–26.

The court applied choice of law analysis to apply D.C. law to the first two claims and Virginia law to the remaining claims.

That proved fatal to the "false light" cause of action

Plaintiff’s final claim is that Defendant invaded his privacy by falsely accusing him of posting the review under the name “Alan R.” and comparing him to Charles Manson. Compl. at 25–27. That accusation, he says, created publicity about him in a way that would be “highly offensive to a reasonable person.” See ECF No. 28 at 49–55.

Those allegations do not state a claim because, as the Court has already explained, Virginia “simply do[es] not recognize such a common law cause of action.” Falwell v. Penthouse Int’l, 521 F. Supp. 1204, 1206 (W.D. Va. 1981). So the Court must dismiss that claim.

(Mike Frisch)

Mississippi Rejects Implied Attorney-Client Relationship As Basis To Disqualify

The Mississippi Supreme Court overturned an order disqualifying counsel in litigation

This case presents an issue of first impression: whether an attorney’s representation of a general partnership creates an implied attorney-client relationship between the attorney and the individual members of the general partnership, and, if so, whether the Mississippi Rule of Professional Conduct prohibiting communication by a lawyer with an individual represented by other legal counsel was violated. James L. Pettis, III, attorney for the plaintiff, appeals an order of the chancery court disqualifying him for a violation of Mississippi Rule of Professional Conduct 4.2, which prohibits a lawyer from communicating with a person they know to be represented about the subject of the representation. After a careful review of the law, this Court reverses the chancery court’s order, renders a judgment in favor of Pettis, and remands for further proceedings.

Facts

Newell Simrall, IV (“Newell”), John Karsten Simrall (“Karsten”) and Catherine Rea Leist n/k/a Catherine Rea Ray (“Rea”) are siblings and shareholders in the closely held Mississippi corporation B.N. Simrall & Son, Inc. (“the Corporation”). On April 1, 2010, Karsten and Rea, along with Dorman Dewayne Leist, entered into an amended partnership agreement for the general partnership Simrall & Simrall (“the Partnership”). In December of 2012, Newell, represented by J. Lawson Hester (“Hester”), filed a lawsuit (“the underlying litigation”) in the chancery court of Warren County, naming as defendants Karsten, the Corporation, the Partnership, and several other entities connected to Karsten. Penny Lawson (“Lawson”) represented all named defendants in the underlying litigation.

James L. Pettis, III (“Pettis”), was the law partner of Hester and had represented Newell in various matters over the years. In 2011, prior to the commencement of the underlying litigation, Pettis represented Newell in the negotiation of a stock purchase and  land-transfer agreement (“the Agreement”) with Karsten. The alleged breach of the Agreement formed part of the basis for the underlying litigation. Although Pettis was involved in the negotiation of the Agreement, he was not retained to represent, nor did he enter an appearance on behalf of Newell in the underlying litigation.

Rea withdrew from the partnership while the litigation was pending

Sometime in 2019, two years after Rea had disassociated from the Partnership, Rea became aware that Karsten was attempting to sell land belonging to the Corporation. At Newell’s request, Rea and Newell met with Pettis on April 8, 2019, in his office to discuss the attempted sale. On April 11, 2019, Rea spoke with Lawson via telephone and informed her that she had met with Pettis. Pettis met Rea a second time when he attended the meeting of the shareholders and board of directors of the Corporation at Rea’s home on April 15, 2019. At both meetings with Rea, Pettis asked whether she was represented by Lawson or any other attorney in the underlying litigation. Rea responded on both occasions that she was not represented by anyone, nor did she wish to seek representation in connection with the underlying litigation. Both Rea and Pettis submitted affidavits stating they only discussed how to prevent the sale of the Corporation’s land by Karsten and that Rea was not represented by counsel in connection with the underlying litigation.

The trial court had disqualified Pettis

We hold that the chancery court erred by finding an attorney-client relationship existed between Lawson and Rea. Additionally, presuming such a relationship did exist, there was no evidence of knowledge or discussion of illicit subject matter which would provide the grounds for Pettis’s disqualification.

No implied attorney-client relationship on these facts

The representation of a general partnership by an attorney does not automatically give rise to an attorney-client relationship between the attorney and any of the individual partners.

And

Even if an attorney-client relationship had arisen between Rea and Lawson, the chancery court erred by disqualifying Pettis because there was no evidence concerning the knowledge and subject matter requirements of Rule 4.2 of the Mississippi Rules of Professional Conduct. Rule 4.2 states that “[i]n representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.” Miss. R. Pro. Conduct 4.2 (emphasis added). The comment to Rule 4.2 specifically states that the rule does not bar communications with a party “concerning matters outside the representation.” Miss. R. Pro. Conduct 4.2 cmt. The only finding the chancery court made was that “[Rea] is no longer a partner of the partnership but was a partner when Plaintiff’s Complaint was filed in 2012[,] . . . that Penny Lawson represented the general partnership and its individual members,” and that Pettis “violated the Rules of Mississippi Professional Conduct by conducting meetings with [Rea], a represented person.”

Conclusion

Although not explicitly argued by the parties, as Hester’s law partner, Pettis’s disqualification does not fall under Rule 1.10 of the Mississippi Rules of Professional Conduct as an imputed disqualification of a law firm due to a conflict of interest because the chancellor only made a finding that Pettis violated Mississippi Rule of Professional Conduct 4.2, not that a conflict of interest existed. Hester’s disqualification was within the jurisdiction and authority of the chancery court because he was engaged in practices and proceedings before the court as Newell’s attorney in the underlying litigation. Because Rea was not a party to the underlying litigation and because Pettis did not represent Newell in the litigation, no conflict of interest existed. Therefore, this Court finds the disqualification of Pettis under the theory of an imputed disqualification as a member of Hester’s law firm to be untenable.

(Mike Frisch)

Lawyer Beats The Rap

The New York Appellate Division for the First Judicial Department rejected Lil Wayne's claims against his former attorney

Plaintiff, a prominent rap artist and musician, alleges that defendant Sweeney, his former representative and lawyer of 13 years, fraudulently induced his retention by (1) representing that he was a lawyer authorized to provide legal services despite having been administratively suspended in California for brief periods around that time, and (2) by practicing law in New York without a license. To state a claim for fraudulent inducement, a plaintiff must show that the defendant's misrepresentation or concealment induced the plaintiff to enter into the transaction and directly caused the plaintiff to suffer a loss (Meyercord v Curry, 38 AD3d 315, 316 [1st Dept 2007]). Here, however, plaintiff has not alleged that Sweeney was suspended from practice at the time he was retained, or that a misrepresentation regarding his status induced the retention. Nor has plaintiff pointed to any direct harm he suffered on account of not knowing Sweeney's status at the time of his retention, more than a decade ago.

The legal malpractice claim, largely premised on the same allegations, also fails. Plaintiff clarifies on appeal that his malpractice claim is tethered to the contingency fee agreement that Sweeney drafted with a litigation firm in California on his behalf and Sweeney's actions in a breach of settlement agreement action in New York that resulted in a default judgment entered against plaintiff. In a legal malpractice action, a plaintiff must also prove that, but for the defendant's negligence, the plaintiff would have been successful in the underlying action or not sustained the alleged damages (Rudolph v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442-443 [2007]). In both instances, however, plaintiff has failed to sufficiently allege how any purported shortcoming by Sweeney was the direct cause of harm.

Plaintiff's breach of fiduciary duty claim, based upon the same alleged misrepresentations and omissions regarding Sweeney's status as a lawyer as those contained in the fraudulent inducement and legal malpractice claims, fails for the same reasons (see e.g. EBC I, Inc. v Goldman Sachs & Co, 5 NY3d 11, 19-20 [2005]). Plaintiff has failed to establish that damages were directly caused by defendant's conduct other than the payment of his fees (Retirement Plan for Gen. Empls. of the City of N. Miami Beach v McGraw, 158 AD3d 494, 496 [1st Dept 2018]).

Plaintiff's unjust enrichment claim, largely based upon a theory that Sweeney was unjustly enriched because he received a percentage fee that was higher than what other lawyers might have charged, fares no better. Unjust enrichment is a quasi-contractual claim that is "imposed by law where there has been no agreement or expression of assent, by word or act, on the part of either party involved. The law creates it . . . to assure a just and equitable result" (Bradkin v Leverton, 26 NY2d 192, 196 [1970]). The motion court properly rejected this claim both because (1) the 10% contingency fee was not so high as to demand the intervention of equity, and (2) plaintiff did not object to the 10% fee for more than 13 years, until after the parties had a dispute and plaintiff fired Sweeney. Further, to the extent plaintiff's unjust enrichment claim is grounded upon Sweeney's purported 10% retention of the amounts recovered by the California litigation firm, the claim also fails. The parties were operating under a contractual agreement until the time of defendant's termination, thus precluding a claim for unjust enrichment.

(Mike Frisch)

Class Action Against Class Counsel Revived

The Tennessee Court of Appeals reversed and remanded the dismissal of a legal malpractice claim against class counsel

This is a proposed class action lawsuit pertaining to actions allegedly taken by attorney Kathryn Barnett and others in connection with prior class action litigation concerning the Galilee Memorial Gardens cemetery. In the prior class action case (“the Galilee Class Action”), Ms. Barnett served as lead counsel for a class that alleged several defendant funeral homes had wrongfully abandoned the remains of the class’ deceased loved ones at the cemetery. See Wofford v. M.J. Edwards & Sons Funeral Home Inc., 528 S.W.3d 524, 527 (Tenn. Ct. App. 2017) (affirming trial court’s decision granting class certification in the Galilee Class Action). Under the operative complaint in the present case, which is brought by Plaintiff April Hawthorne, a member of the Galilee Class Action class, it is generally alleged that Ms. Barnett and attorney John Morgan, along with their corporate affiliates, refused to entertain and respond to over $14,475,000.00 in settlement offers made by the funeral home defendants during the pendency of the Galilee Class Action.

Result

Having considered the matter on appeal, we respectfully disagree with the trial court and hold that claims for legal malpractice and breach of fiduciary duties are sufficiently well-pleaded in the complaint. It is not exactly clear why the trial court was of the opinion that the Plaintiff’s allegations do not rise to the level of actionable conduct, but it appears clear to this Court that the Plaintiff has pled facts implicating valid legal theories. Indeed, the Plaintiff has accused the class counsel in the Galilee Class Action of having acted recklessly, by among other things, ignoring settlement offers and rejecting them on illogical bases, and of having failed to carry out fundamental obligations owed to represented clients, namely not communicating the fact that settlement offers had been made. Of course, the Plaintiff has asserted that damages resulted from class counsel’s failures to act upon the settlement offers such that actual settlements could be achieved.

We also conclude that the claim for punitive damages was sufficiently pled and note that the complaint submits that the Defendants’ actions were, among other things, “at the bare minimum, reckless.” We, therefore, reverse the trial court’s dismissal of the legal malpractice, breach of fiduciary duties, and punitive damages claims.

(Mike Frisch)

State Of The Union (Counsel)

The Massachusetts Supreme Judicial Court affirmed the dismissal of a legal malpractice case on the grounds that no attorney-client relationship existed

The defendants, Dwyer & Duddy, P.C., and attorney Christina C. Duddy (collectively, union counsel), are legal counsel to the Boston Teachers Union (union). The plaintiff (grievant) was a tenured teacher and a member of the bargaining unit. Union counsel and the union followed a discrete protocol governing the filing of arbitration demands when the union agreed to take a case of a teacher termination2 to either contractual or statutory arbitration. See the Education Reform Act (ERA or act), G. L. c. 71, § 42. Union counsel was authorized to demand arbitration only when directed to do so by the union leadership, in writing.

Grievant was terminated after an untimely demand was made.

As to the merits of the prohibited practice charge, the hearing officer ruled that the grievant would have been successful in reversing her dismissal and would have been reinstated, but for the untimely filed arbitration demand. The hearing officer imputed to the union the conduct of union counsel as agents of the union. The hearing officer found that "no attorney-client relationship exists between the [union counsel] handling an arbitration and the grievant." The department ordered the union to make the grievant whole, but restricted the remedy to wages and contractual benefits lost between her September 25, 2014 termination and March 16, 2015. This restriction was based on the factual finding that the grievant would not have returned to work. No appeal was filed from the hearing officer's decision.

The grievant filed suit in the Superior Court alleging legal malpractice against union counsel due to the untimely filing of the arbitration demand. Union counsel moved for summary judgment, contending that they never had an attorney-client relationship with the grievant, and, alternatively, that the grievant was unable to establish recoverable damages due to the award issued by the department. After a hearing, a Superior Court judge allowed the motion, concluding that no attorney-client relationship existed; judgment entered in favor of union counsel. This appeal followed.

To no avail

Because the grievant's claims against union counsel are for actions they took as agents of the union, summary judgment was properly granted to union counsel. The grievant's exclusive remedy for a breach of the duty of fair representation by the union or its agents was the filing of prohibited practice charges with the department.

(Mike Frisch)

Forced Arbitration Of Fee Dispute In Retainers Unenforceable

The New Jersey Appellate Division affirmed a decision that  declined to enforce an arbitration provision in a law firm's retainer agreements.

In these ten one-sided appeals, which we consider back-to-back and have consolidated for the purpose of writing a single opinion, appellant Weinberger Divorce & Family Law Group LLC (the firm), challenges the denial of its motions to enforce the terms of its retainer agreement (RA) to obtain a judgment against its former clients for unpaid fees, or alternatively, to compel the former clients to submit to binding arbitration to resolve the parties' fee disputes. We affirm.

There were detailed retainer agreements in each matter

Once a fee dispute arose in each of the ten cases before us, the firm mailed the client a pre-action notice (PAN) via regular and certified mail pursuant to Rule 1:20A-6. The PAN stated that the client owed the firm legal fees and that the firm would "place [the] account into suit" unless the client complied with the RA and paid the "total outstanding balance."

The notice advised each former client of the Bar's fee arbitration services; none opted to pursue that option.

None of the ten clients requested fee arbitration with the District Fee Arbitration Committee. Consequently, in lieu of filing a complaint, the firm filed motions to enforce the RAs in the underlying matrimonial matters and sought entry of a judgment for the unpaid fees. Alternatively, the firm sought an order requiring it and the client "to attend binding arbitration governed by the New Jersey Uniform Arbitration Act, N.J.S.A. 2A:24-1 et. seq., with an Arbitrator to be selected by the [c]ourt from the listed options provided by [the firm] respecting the parties' fee dispute, in accordance with paragraph 17 of the" RAs. The firm also sought an award of counsel fees.

The facts of each case and the trial court actions are set out at length.

A recent decision does not impact the analysis

when determining the enforceability of the arbitration provisions contained in the firm's RA, the ordinary contract principles applicable to arbitration provisions in consumer and employment contracts apply, and the heightened Delaney standard does not.

But the fees must be reasonable

Here, we are satisfied the firm's certifications in support of its motions did not adequately address the factors under RPC 1.5(a). For example, the firm included one paragraph in each certification that generally explained the nature of the work performed and, in some cases, noted the results obtained, e.g., a final judgment of divorce. The certifications did not inform the court of the outcome of every motion filed. Moreover, the certifications did not address the fee customarily charged in the locality for similar legal services or offer any information regarding the experience, reputation and ability of the lawyer or lawyers who performed the services.

And as to compelled arbitration

Similarly, we cannot conclude the judges erred in denying the firm the alternate relief it requested in its motions, i.e., to enforce the binding arbitration provision in the firm's RA.

...the plain language of Rule 1:20A-6 makes clear that it is the client who has the right to initiate fee arbitration proceedings conducted under Rule 1:20A. Stated differently, "[w]hether or not a fee dispute will be arbitrated" pursuant to Rule 1:20A "is a matter within the exclusive control of the client" and "[t]he lawyer may not unilaterally invoke the binding arbitration technique of this rule." Pressler & Verniero, cmt. 1 on R. 1:20A-6. Therefore, the language in Paragraph Seventeen of the firm's RA, mandating that its clients initiate fee arbitration pursuant to Rule 1:20A-6, is contrary to the Rule itself, and is unenforceable.

The provision of the RA that the law firm sought to enforce was confusing and contradictory

Given the confusing, contradictory and improper language included in Paragraph Seventeen, we are convinced the judges did not err in declining to compel the firm's former clients to submit to binding arbitration. We hasten to add, however, that although Paragraph Seventeen of the RA is unenforceable, the balance of the RA is not rendered a nullity. Thus, striking Paragraph Seventeen's binding arbitration provision does not "defeat[] the primary purpose of the contract," Jacob v. Norris, McLaughlin & Marcus, 128 N.J. 10, 33 (1992), i.e., the firm's provision of legal representation to the client in exchange for payment of reasonable fees and costs.

(Mike Frisch)

No Small Potatos

The Idaho Supreme Court reversed and remanded a disqualification and gag order in a bicycle accident claim against the property owner.

The issue involved an associate move

The law firm Hepworth Holzer, LLP (“Hepworth Holzer” or “the firm”), petitions this Court for a writ of mandamus or prohibition, seeking relief from a district court order disqualifying it as counsel for Dr. Gary Tubbs in a personal injury lawsuit against Bogus Basin Recreational Association, Inc. (“Bogus Basin”). Bogus Basin was represented by Elam & Burke in the proceedings. Elam & Burke moved to disqualify Hepworth Holzer after an associate attorney who worked at Elam & Burke when Tubbs initiated his lawsuit went to work for Hepworth Holzer and assisted the firm on a memorandum in support of a motion to reconsider filed in the case. The district court granted Elam & Burke’s motion. The district court ordered that “[a]ny attorney associated with Hepworth Holzer, LLP, including [the associate attorney], are disqualified from any further representation of [Dr.] Gary Tubbs in this matter and from providing any information from its files after January 21, 2021, and cannot relay any information discussed or received about this case after January 21, 2021[,] to Tubbs or any new attorney/firm representing Tubbs.” Hepworth Holzer contends the district court’s disqualification and gag order is clearly erroneous and unconstitutional.

The move

Dr. Gary Tubbs was severely injured in a bicycle accident that occurred on Bogus Basin’s property. In 2019, Tubbs hired Hepworth Holzer to represent him on a contingency fee basis in a personal injury lawsuit against Bogus Basin. John Janis was the primary attorney representing Tubbs. Elam & Burke represented Bogus Basin. The case proceeded to summary judgment, where Bogus Basin argued that Tubbs’ claims were barred because, after the accident, he signed three waiver agreements releasing Bogus Basin from any and all liability or claims arising from Tubbs’ use of the Bogus Basin ski area. After Elam & Burke filed Bogus Basin’s motion for summary judgment, but before a final judgment was entered, an associate attorney working for Elam & Burke resigned and started working for Hepworth Holzer. Later, the district court granted summary
judgment to Bogus Basin. After working at Hepworth Holzer for one month, the associate attorney helped draft a memorandum in support of a motion for reconsideration in Tubbs’ case. In the motion to reconsider, Tubbs allegedly raised a new legal argument that Bogus Basin claimed was attributable to the associate attorney’s prior communications and access to internal files while he was still an attorney for Elam & Burke...

Bogus Basin’s motion alleged the associate attorney did research and had knowledge of work product and strategy in defending the case against Tubbs based on his
employment with Elam & Burke. Bogus Basin alleged the associate attorney’s conflict was imputed to the entire firm under Idaho Rule of Professional Conduct (“I.R.P.C.”) 1.10. Tubbs opposed the motion, supported by the declaration of Hepworth Holzer attorney John Janis. The associate attorney also submitted a declaration in which he adamantly denied: (1) ever having represented Bogus Basin while employed by Elam & Burke, (2) having otherwise obtained any confidential information about Bogus Basin, or (3) having used any information related to Bogus Basin to its disadvantage. In support, the associate attorney emphasized that he did not bill Bogus Basin for any legal services—highlighting the brief nature of his involvement in the case.

Standing

Hepworth Holzer suffered a distinct and palpable injury from the district court’s order that it cease all representation and communication with Tubbs. The firm had invested significant time, money, and resources into its representation of Tubbs. The value of its reputation and standing in the local legal community is also at stake. Not only did the district court’s order preclude the firm’s ability to recover any financial benefit of that representation, but it also placed Hepworth Holzer  in breach of its contract with Tubbs. Hepworth Holzer’s injury is directly connected to the district court’s order; thus, Hepworth Holzer has standing to petition this Court for relief.

The trial court had jurisdiction to disqualify

Here, the district court used its discretion to grant Bogus Basin’s motion to disqualify Hepworth Holzer based on an imputed conflict of interest. A writ of prohibition is not appropriate here because the district court did not exceed its jurisdiction in issuing the disqualification order. Hepworth Holzer’s request to enter such a writ is therefore denied.

But mandamus relief was appropriate

Here, the district court entered its disqualification and gag order based on its review of documents Elam & Burke submitted to the district court in camera. The documents were not provided to Hepworth Holzer, leaving the firm with no recourse or ability to challenge the district court’s decision, inasmuch as it could not know the basis for the district court’s ruling. The district court erred as a matter of law by limiting Hepworth Holzer’s opportunity to be heard and preventing the firm’s ability to meaningfully respond to Bogus Basin’s claims of impropriety.

Result

Ultimately, no one at Hepworth Holzer, including the associate attorney, could discern what argument allegedly raised confidential arguments that would merit the far-reaching action taken by the district court. The district court needed to consider the prejudice that would result to Tubbs in disqualifying Hepworth Holzer as his counsel. “The goal of the court should be to shape a remedy which will assure fairness to the parties and the integrity of the judicial process.” Foster, 145 Idaho at 32, 175 P.3d at 194 (quoting Weaver, 120 Idaho at 697, 819 P.2d at 115) (“whenever possible, courts should endeavor to reach a solution that is least burdensome to the client.”).

Tubbs suffered substantial and catastrophic physical injuries that led to him filing the underlying lawsuit. Tubbs’ prejudice includes the loss of his long-standing counsel who is familiar with the facts of the case and who undertook representation on a contingent fee basis. It is impractical to conclude that Tubbs retaining new counsel is “a plain, speedy and adequate remedy in the ordinary course of law.” The district court’s order disqualifying Hepworth Holzer as counsel is reversed.

And remanded to a new judge

while we make no finding that the district court is biased against Hepworth Holzer in this case, to avoid even the appearance of impropriety we order that the administrative district judge assign a new judge to this case upon remand. This holding is limited to the unique facts presented here and this determination, made via a special writ, should not be viewed as an expanded means of disqualifying a sitting judge throughout a case.

(Mike Frisch)

Kentucky Rejects Non-Client Standing To Seek Disqualification

The Kentucky Supreme Court reversed a disqualification of defense counsel in medical malpractice matters, holding that opposing parties (as here) have no standing to seek disqualification

Consistent with these authorities, and our reading of the pertinent Rules of Professional Conduct, we conclude a general requirement exists that to raise a conflict of interest and seek disqualification of counsel, a party must be a current or former client of the attorney against whom disqualification is sought.

We need not—and do not today—determine whether a non-client may ever have standing to assert an alleged conflict of opposing counsel. However, in our view, a non-client’s standing to raise an alleged conflict of interest by opposing counsel is questionable at best. Absent an unethical change of sides or a violation so open and obvious it compels a court to act, the ability of a non-client to “champion the rights” of an opponent typically does not exist. See FMC Technologies, Inc. v. Edwards, 420 F. Supp. 2d 1153, 1156 (W.D. Wash. 2006) (citing In re Yarn, 530 F.2d at 89). No such circumstances are present in this case sufficient to confer standing on Appellees. The trial court and the Court of Appeals erred in not so finding.

Further, the Appellees’ continually shifting reasoning and their failure to point to a single issue of fact revealing an actual conflict after years of litigation exposes the weakness of their position. It further reveals the true purpose of the motions: to gain a tactical advantage and wrest control of attorney selection from the opposition. Morgan-White’s own affidavit states she files disqualification motions in every case where an attorney represents multiple parties, regardless of whether she believes an actual conflict exists. This is the very sort of weaponizing which should be avoided.

We are convinced Appellants have shown all parties represented by Effinger and Piekarski have agreed to joint representation and a unified defense has been and continues to be asserted against all of Appellees’ claims. There appear to be no factual, legal, or strategic conflicts among any of Effinger and Piekarski’s clients. Although the trial court and Appellees can conjure potential scenarios where conflicting interests might possibly emerge, that is simply not enough. The appearance-of-impropriety standard was rejected in Marcum wherein this Court held “there should be something more substantive than just a possible conflict before disqualification takes place.” 457 S.W.3d at 717. Thus, contrary to the holdings of the trial court and the Court of Appeals, even if Appellees had standing to raise an alleged conflict—which they do not—we discern no issue exists here warranting the draconian sanction of attorney disqualification. The trial court’s disqualification orders were improper and writs of prohibition barring their enforcement is the appropriate remedy.

(Mike Frisch)

Fee Flee Leaves Law Firm Stuck

The South Carolina Court of Appeals affirmed the dismissal of a suit brought by a law firm alleging that the Workers Compensation Commission had failed to protect its fee interest

In its complaint, KCC alleged the following set of facts. On July 31, 2007, Bruce Nadolny retained KCC to represent him in a worker's compensation claim against AVX Corporation and Liberty Mutual Insurance Company. KCC, on behalf of Nadolny, entered into mediation on his claim. From that mediation, Nadolny agreed to accept a $120,000 settlement. The day after mediation, Nadolny informed KCC he no longer needed its representation, and KCC was relieved as counsel. KCC informed Nadolny that it had expended multiple hours and expenses working on his case and would file a claim for attorney's fees.

The law firm alleged that it notified the workers compensation commission of its claim but nonetheless

On November 3, 2016, the Commission approved the settlement to Nadolny's widow without notifying KCC of the hearing. KCC alleged Nadolny's widow moved out of South Carolina after receiving the settlement. 

KCC asserts the Commission was negligent, reckless, and willful...

In response the Commission asserted governmental immunity.

The circuit court agreed and here

KCC argues the circuit court erred in finding the Commission was immune under the Act. KCC asserts the Commission's failure to notify KCC of the hearing was a ministerial act and therefore neither the Act nor judicial immunity immunized the Commission. We find the issue of whether the Commission's alleged action or inaction was ministerial is not preserved for appellate review.

In its response to the Commission's motion to dismiss, KCC asserted the Commission was not immune because the Commission's act was not a judicial or quasi-judicial act because it was simple negligence. KCC did not raise the issue of whether the Commission's act was a ministerial act—and thus an exception to the Act's immunity—until its Rule 59(e), SCRCP, motion.

Thus waiving that issue on appeal.

The court further rejected the law firm's claimed due process violations. (Mike Frisch)

Utah On Flat Fees And Safe Harbors

A significant opinion of the Utah Supreme Court confirmed and reversed in part the district court's denial of summary judgment to an attorney who had accepted flat fees treated as earned on receipt.

The court found the attorney had violated Rule 1.15(c) in two instances but that a third such arrangement was protected by a Safe Harbor provision in Utah's disciplinary  rules.

The Safe Harbor against disciplinary prosecution is a provision that protects an attorney whose conduct complies with an in-force ethics advisory opinion.

The case - which does not seem amenable  to cut-and-paste - extensively interprets prior Utah disciplinary and ethics opinions on the subject of flat/advanced fees and will be required reading for every lawyer practicing in the Beehive State.

To better understand [the attorney's] arguments. it helps to consider how the law surrounding flat fee agreements has developed. This requires us to examine two rules, two ethics opinions and one Utah Supreme Court case.

 Ethics Opinion 136 addressed the circumstances under which a retainer could be earned on receipt.

The court decision in the Jardine case considered that opinion

But while one hand giveth, the other taketh away. Although we acknowledged that Opinion 136 could be read to support Jardine's argument, we rejected that reading.

The second ethics opinion came in the wake of the Jardine decision.

There are two concurring and dissenting opinions.

Chief Justice Durrant would apply the rule of lenity and give safe harbor here with notice to the Bar going forward.

Associate Chief Justice Lee would find the violation in all three instances. (Mike Frisch)

Withdrawal Negated Liability

The Tennessee Court of Appeals affirmed the grant of summary judgment to the defendant in a legal malpractice case where the law firm had withdrawn before the statute of limitations had expired

In this legal malpractice action, the trial court determined that any duty owed by the defendant law firm to the plaintiff ceased when the law firm undisputedly terminated its representation of the plaintiff more than five months prior to expiration of the statute of limitations applicable to the plaintiff’s underlying claim. The court found that the plaintiff had ample time within which to hire new counsel before the statute of limitations would have run on his personal injury claim. The court also found that the plaintiff had failed, within that timeframe, to obtain new counsel or inquire about the status of his claim such that any damages he suffered were due to his own inaction. The court accordingly granted summary judgment in favor of the defendant law firm. The plaintiff has appealed. Discerning no reversible error, we affirm.

The law firm withdrew after the plaintiff failed to sign documents to effectuate a settlement. (Mike Frisch)