Friday, March 5, 2021

Second Remand In Billing Litigation

The Tennessee Court of Appeals affirmed and reversed in part a judgment in favor of an attorney in a suit brought by a former client

This appeal involves a fraud claim filed against an attorney by his former client. The attorney conceded that the client had been double-billed for some charges and repaid the client for those matters prior to trial. However, the client, now pro se, continued to pursue his claim for fraudulent billing, insisting that fraud extended to the entire invoice. He also claimed that the attorney had charged a higher hourly rate than agreed. After a bench trial, the trial court found that the client failed to demonstrate that the attorney intentionally misrepresented the amounts owed by the client and failed to present sufficient evidence of fraud. As such, the trial court dismissed the claim and granted the attorney’s request for discretionary costs. The client appeals. We affirm in part, reverse in part, and remand for further proceedings.

The attorney had represented the client in a divorce.

The client filed a bar complaint, which was dismissed.

The court had earlier remanded the case after the attorney was granted judgment based on res judicata of the dismissed bar complaint

We held that it did not, for two reasons. First, the Board was not a court of competent jurisdiction within the meaning of the res judicata analysis. Id. Secondly, the same claim was not asserted in both suits because the Board proceeding did not consider whether Vazeen should be awarded damages on his fraudulent billing claim...As such, this Court vacated the entry of summary judgment on the fraudulent billing claim and remanded for further proceedings. 

Trial was held at which only the client and the attorney testified.

The trial court found the attorney credible and granted judgment in his favor.

Here, the court found that fraud had not been proven but as to allegation that the retainer agreement had been forged

Finally, Vazeen maintains that one of the ways he was defrauded was by Sir’s “scheme” to charge $100 more per hour than Vazeen had agreed to pay. As proof of this alleged scheme, Vazeen points to his own testimony about his understanding of the fee agreement, his handwritten note evidencing that he spoke with other attorneys who were charging $250 per hour, and the invoices showing that he was charged $250 per hour for the first two months. The trial court found that “[t]he contract between [Vazeen] and [Sir] set [Sir’s] compensation rate at $375 per hour and his associate’s compensation rate at $350 per hour.” The trial court noted Vazeen’s allegation of forgery but found that he had “no proof thereof.”

The court

In our view, however, this case does not involve a simple allegation of forgery. It involves an allegation of fraud in connection with an attorney-client fee agreement. As a result, additional considerations come into play. “‘An attorney-client agreement [] is subject to a higher level of scrutiny by the courts.’” 

And so another remand

In light of the lack of findings and the lack of evidence regarding the relevant factors, we deem it necessary to remand this limited issue regarding the hourly rate to the trial court for further proceedings to include consideration of the Alexander criteria.

The Alexander criteria

In order to prove such good faith and fairness, an attorney seeking to enforce a contract for attorney’s fees must show:
(1) the client fully understood the contract’s meaning and effect,
(2) the attorney and client shared the same understanding of the contract, and
(3) the terms of the contract are just and reasonable

The court concluded that the factors must be considered even though the litigation did not involve a suit for legal fees. (Mike Frisch)

March 5, 2021 in Billable Hours, Clients | Permalink | Comments (0)

Monday, December 21, 2020

Duty To Explain Arbitration Provision In Retainer Agreement

A significant decision of the New Jersey Supreme Court on retainer provisions that mandate arbitration of fee disputes and legal malpractice claims.

For an arbitration provision in a retainer agreement to be enforceable, an attorney must generally explain to a client the benefits and disadvantages of arbitrating a prospective dispute between the attorney and client. Such an explanation is necessary because, to make an informed decision, the client must have a basic understanding of the fundamental differences between an arbitral forum and a judicial forum in resolving a future fee dispute or malpractice action. See RPC 1.4(c). That information can be conveyed in an oral dialogue or in writing, or by both, depending on how the attorney chooses best to communicate it. The Court refers the issues raised in this opinion to the Advisory Committee on Professional Ethics, which may propose further guidance on the scope of an attorney’s disclosure requirements. The new mandate will apply prospectively, except as to [former client] Delaney, who must be allowed to proceed with his malpractice action in the Law Division.

The court's opinion notes that the lawyer-client relationship is fiduciary.

The client is a sophisticated businessman who was presented with a four-page retainer agreement.

The retainer agreement stated that any dispute about the firm’s legal services or fees would be determined by arbitration and that, by agreeing to arbitration, Delaney waived his right to trial by jury. The agreement also advised Delaney that the arbitral result would be final and non-appealable. The one-page attachment indicated that the arbitration proceeding would remain confidential and would be conducted through a private arbitration and mediation organization called JAMS pursuant to its rules and procedures. The attachment, moreover, contained a hyperlink to thirty-three pages of JAMS rules governing the arbitral forum.

When the relationship terminated, the firm invoked the arbitration process to collect unpaid fees. 

As so often happens, the client then sued for malpractice.

The Chancery Court upheld the arbitration provision; the Appellate Division reversed. 


We now hold that, for an arbitration provision in a retainer agreement to be enforceable, an attorney must generally explain to a client the benefits and disadvantages of arbitrating a prospective dispute between the attorney and client. Such an explanation is necessary because, to make an informed decision, the client must have a basic understanding of the fundamental differences between an arbitral forum and a judicial forum in resolving a future fee dispute or malpractice action. See RPC 1.4(c).

An arbitration provision in a retainer agreement is an acknowledgement that the lawyer and client may be future adversaries. That the retainer agreement envisions a potential future adverse relationship between the attorney and client -- and seeks to control the dispute-resolution forum and its procedures -- raises the specter of conflicting interests. An arbitral forum and judicial forum, and their accompanying procedures, are significantly different.

Oral argument (quite interesting if you have 2+ hours to spare) linked here. (Mike Frisch)

December 21, 2020 in Billable Hours, Clients | Permalink | Comments (0)

Friday, November 20, 2020

Collectible Judgment Not An Element Of Legal Malpractice Claim

The Louisiana Supreme Court has held that the plaintiff in a legal malpractice suit need not prove that the underlying lost judgment was collectible 

We granted this writ application to determine whether “collectibility” is a relevant consideration in a legal malpractice action. Specifically, we must decide whether plaintiff’s damages in this legal malpractice action are limited to the amount she could have actually collected on a judgment against the tortfeasor in the underlying lawsuit. For the following reasons, we answer these questions in the negative, holding proof of collectibility of an underlying judgment is not an element necessary for a plaintiff to establish a claim for legal malpractice, nor can collectibility be asserted by an attorney as an affirmative defense in a legal malpractice action.

The underlying case involved an automobile accident claim that had been dismissed as untimely filed.

The trial court granted summary judgment to the defendants on non-collectibility grounds.

The court of appeals reversed and was affirmed here

Moreover, applying the collectibility rule assumes that the underlying tortfeasor will remain insolvent or unable to pay for the life of the judgment. But impecunity is a snapshot in time. Under Louisiana law, a money judgment is valid for ten years and may be revived for successive ten-year periods if appropriate steps are taken. La. C.C. art. 3501.5 It would be inherently unfair to deprive the malpractice plaintiff of recovery against the negligent attorney if the underlying judgment would be collectible at a later point in time, within the statutory prescriptive period for satisfaction of a judgment.

A money judgment rendered against a tortfeasor has intrinsic value, regardless of collectibility of that judgment. We hold collectibility is not relevant to the correct measure of a legal malpractice plaintiff’s damages. This is consistent with the policy set forth by this court in Rodriguez v. Traylor, 468 So. 2d 1186, 1188 (La. 1985) that the financial condition of the defendant is not a proper consideration in the determination of compensatory damages. We will not allow a malpractice defendant to assert a defense based on the wealth or poverty of the underlying tortfeasor when a defendant in any other type of tort action could not assert a similarly based defense.

Justice Crain dissented

Thirty states have determined collectibility is relevant in a legal malpractice action. No state has reached a contrary conclusion, until now. In reaching this conclusion, the majority correctly observes there is no codal, statutory, or jurisprudential authority that requires it. Close scrutiny of the distinct causes of action and damages unique to such claims confirms that in this instance, our civilian traditions align with those of our common law neighbors.

A hypothetical

...assume an insolvent, uninsured driver rear-ends a world-class professional athlete rendering him a paraplegic, resulting in damages of $50 million. The plaintiff hires a lawyer to sue the insolvent, uninsured driver. Then, the lawyer misses the prescription date. The plaintiff sues the lawyer for legal malpractice. The lawyer has $50 million legal malpractice insurance coverage. What did the plaintiff lose, or what harm did the lawyer cause the plaintiff, when the lawyer failed to preserve the claim against the insolvent, uninsured driver? The lawyer did not cause the paraplegia, nor did he cause the loss of $50 million, as that money was clearly uncollectible. Instead, the plaintiff lost the right to obtain a judgment against the insolvent, uninsured driver in the amount of $50 million. The determinative question, then, by a trial court is: “What is the value of the ‘lost judgment’?” That value depends largely, if not totally, on the collectibility of the “lost judgment.” This quantum determination should be left to the trial court after considering the relevant collectibility evidence, which should not be barred by the bright-line rule adopted by the majority.

(Mike Frisch)

November 20, 2020 in Clients | Permalink | Comments (0)

Thursday, October 22, 2020

No Duty To Beneficiary

The Idaho Supreme Court reversed a finding against an attorney

Attorney Craig Wise appeals a district court’s determination that he breached a duty of care owed to Billy Kyser, Jr., as a beneficiary of Carolyn Kyser’s will. Wise represented Billy’s mother, Carolyn, in divorce proceedings from Bill Kyser, Sr., and in preparing a will that bequeathed her entire estate in equal shares to Billy and his brother Brent Kyser. As part of the divorce proceedings, and before Carolyn’s will was completed, Carolyn and Bill Sr. executed a property settlement agreement in which Bill Sr. and Carolyn agreed to retain sequential life estates in the family home, with the remainder going to Brent and Billy as tenants in common upon the death of the last surviving parent. Wise prepared a deed memorializing the terms of the property settlement agreement. After Bill Sr. and Carolyn both passed away, Brent retained Wise to represent him as the personal representative of Carolyn’s estate. Brent also hired Wise independently to prepare a quitclaim deed transferring Billy’s interest in the home to Brent. Wise sent the deed to Billy, who then executed it. David Kalb, Billy’s court-appointed conservator, then filed a malpractice suit against Wise. After a court trial, the district court held Wise breached the duty he owed to Billy as a beneficiary of Carolyn’s will by preparing the deed because it frustrated Carolyn’s testamentary intent that her estate be divided equally between her two sons.

We reverse the district court’s legal determination that Wise owed Billy a duty of care when Wise was acting as counsel for the personal representative of Carolyn’s estate, Brent. Although Wise owed Billy a duty of care in drafting and executing Carolyn’s will, the district court impermissibly extended that duty by requiring that Wise ensure an asset outside the probate estate complied with Carolyn’s intent in her will. We, therefore, remand with instructions to enter judgment for Wise.

Liability to a non-client

One may rightly question Wise’s “moral blame” as part of this test – indeed the district court did so. We make no conclusion regarding Wise’s professional responsibility here today; however, Idaho Rules of Professional Conduct 1.7(a)(2) and 4.3 may be relevant for an inquiry by the Idaho State Bar as to Wise’s ethically questionable actions in (1) directly contacting Carolyn’s unrepresented and severely disabled son, (2) having that son transfer his interest in the real property to Wise’s client, (3) failing to advise Billy to seek the advice or intervention of independent counsel, and (4) failing to consult Billy’s conservator before performing any of these acts.

Even so, an alleged violation of any ethical rules, and the moral blame attendant to such conduct, is insufficient alone to extend a duty in tort from Wise to Billy under the balance-of-theharms test. The remaining factors of the test simply do not support extending a duty to Wise’s conduct in preparing non-testamentary instruments – the 2002 Deed and the 2012 Deed – that ultimately transferred Billy’s interests in the home to his brother. While the district court found this action violated a duty owed by Wise to Billy because it frustrated Carolyn’s intent as expressed in her will, we disagree. Wise’s preparation of a deed as a non-testamentary document ten years after the will was drafted, and his contact with Billy to obtain his signature, did not violate a duty Wise owed to Billy as a beneficiary of Carolyn’s will since the deed did not concern an asset of her estate. Wise’s duty at that point was owed to Brent as the personal representative of the estate and to Brent individually in connection with the preparation of the deed. Billy was a non-client, and Wise owed him no duty of care.

I hope that Professor Mike Oths and his Concordia Law students are still reading this blog. (Mike Frisch)

October 22, 2020 in Clients | Permalink | Comments (0)

New Jersey Appellate Court Holds State Has Personal Jurisdiction In Malpractice Claim Against Out-Of-State Attorney

The New Jersey Appellate Division held that a Mississippi attorney's involvement in a New Jersey matter was sufficient to confer personal jurisdiction on the client's subsequent malpractice claim

In June 2005, on the advice of an acquaintance, plaintiff contacted Eastland regarding representation in a potential federal lawsuit alleging systemic corruption in New York's court system, the venue of plaintiff's divorce litigation. Eastland was a resident of Mississippi, and the law firms were located there. He had several phone conversations with plaintiff, met an FBI agent in New York to urge the Bureau's pursuit of plaintiff's allegations, and met with plaintiff in Mississippi several times. Eastland met with plaintiff at Newark Liberty Airport during his trip to New York and came to New Jersey on one other occasion to observe plaintiff's pro se presentation during an administrative hearing regarding his medical license.

Plaintiff and Eastland entered into a retainer agreement

During May and June 2006, Eastland was apparently very busy representing the former governor of Alabama in a criminal trial.  Eager to have his complaint filed in New Jersey's federal district court, plaintiff visited Eastland in Alabama to discuss the litigation. Eastland certifies that he told plaintiff they "were nowhere near being able to draft a New Jersey federal RICO complaint without extensive further due diligence review." Nevertheless, plaintiff drafted his own complaint, naming the New Jersey Attorney General and other public officials, as well as the Department of Public Safety and the Division of Consumer Affairs, as defendants. A licensed New Jersey attorney, Robert J. Conroy, filed the complaint in federal district court on plaintiff's behalf.

Eastland's motion to enter the case pro hac vice was granted.

Eastland acknowledges that he prepared numerous pleadings in plaintiff's federal lawsuit, including amended complaints, motions and responses to motions; the federal docket bears witness to the filings, all of which were made by Conroy as local counsel

The underlying suit was dismissed

We need not detail applications that continued to be made in the district court, some admittedly drafted by Eastland, before the litigation finally ended in dismissal of the complaint against all parties.

Plaintiff sued for malpractice and Eastland moved to dismiss for lack of personal jurisdiction

Although our court has considered the exercise of personal jurisdiction over out-of-state attorneys before, we have yet to address the issue under similar facts to those presented here...

Initially, it is beyond cavil that plaintiff's lawsuit arises out of Eastland's alleged contacts with New Jersey, i.e., his "forum-related activities." Jardim, 461 N.J. Super. at 376. Eastland provided representation to plaintiff, a New Jersey resident, in a lawsuit alleging that New Jersey officials and governmental offices engaged in RICO activities against plaintiff. In other words, Eastland assisted plaintiff in his preparing a lawsuit that could only be brought in New Jersey against the very sovereign which jurisdiction Eastland now seeks to avoid on constitutional due process grounds.

Eastland contended that that the client solicited him

while solicitation in the forum state may demonstrate purposeful availment, the lack of solicitation is but one factor to consider in deciding whether an out-of-state attorney purposely availed himself of the forum state's jurisdiction.

...Putting aside the merits of plaintiff's claims in this suit, it was entirely foreseeable that Eastland's representation of a New Jersey resident in New Jersey's federal district court might include appearances in New Jersey on his client's behalf and might result in future litigation commenced by a disgruntled client.

As to pro hac admission

We also view Eastland's pro hac vice admission to the federal district court as significant in deciding whether he purposely availed himself of the privilege of conducting business in New Jersey.


In sum, considering the totality of the circumstances, we conclude Eastland had sufficient minimum contacts with New Jersey to permit the Law Division to exercise specific personal jurisdiction over him and his associated firms with respect to plaintiff's complaint.

(Mike Frisch)

October 22, 2020 in Clients | Permalink | Comments (0)

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)

October 19, 2020 in Clients | Permalink | Comments (0)

Thursday, October 15, 2020

Inherent Conflicts; Trade Names

A Staff Report from the web page of the Ohio Supreme Court

The Ohio Board of Professional Conduct has issued two advisory opinions addressing rules regarding law firm representation of current clients and the use of trade names by law firms.

Advisory Opinion 2020-10 analyzes a law firm’s proposed representation of two adverse clients negotiating the same transaction. The board found an inherent conflict of interest in such an arrangement, even when the lawyers are separately assigned to each client, screening of the lawyers is utilized, and both clients consent to the arrangement. 

The board concluded that the lawyers’ independent professional judgment and competence would be compromised by the concurrent representation and would require an impermissible departure from the rules governing the imputation of conflicts.

Advisory Opinion 2020-11 concludes that a recent amendment to the Rules of Professional Conduct permits the use of trade names by Ohio law firms, provided the trade name is not false, misleading, or unverifiable. The opinion gives several examples of trade names that would be prohibited and identifies names that would be considered permissible.

Screening does not cure direct adversity

The steps proposed by the law firm in order to represent the two clients underscore the inherent nature of the conflict of interests that exist in the concurrent representation of two or more firm clients in the same transaction. The key features of the law firm’s proposal to resolve the conflicts, a combination of client consent and the screening of two groups of assigned lawyers, is not provided for in the Rules of Professional Conduct as a method to ameliorate conflicts arising from concurrent representation in the same law firm. The firm’s proposal would require a departure from the rules governing the imputation of conflicts that the Board is reluctant to endorse. For the foregoing reasons, the Board concludes that the law firm’s proposed concurrent representation of the two adverse clients in the same transaction is not permissible.

The trade name opinion

Because a trade name may contain one word or a combination of words, it may be considered misleading if it contains a material misrepresentation of fact or omits a fact necessary to make the trade name, considered as a whole, not materially misleading. Prof.Cond.R. 7.1, cmt. [2]. A trade name may also be misleading if a substantial likelihood exists that it will lead a prospective client to formulate a specific conclusion about the lawyer or the lawyer’s services for which there is no reasonable factual foundation. Id. For example, a trade name that implies results, such as “Zero Tax” or “Winning Law Firm,” would be considered misleading because it could lead a reasonable person or a prospective client to form an unjustified expectation that certain results can be obtained from the lawyer or firm. Id., cmt.[3]. In addition, trade names that imply a connection to a governmental agency, e.g. “Attorney General Collections,” “Public Defenders,” “Ohio Judge’s Law Group,” “Social Security Administration Associates;” imply expediency, e.g. “Divorce Fast,” “EZ Divorce,” “Quick Settlement;” or that imply a connection to an existing nonprofit or charitable organization, e.g. “Legal Aid Associates,” “Project Innocence Associates,” or “Legal Assistance Foundation;” are inherently false or misleading and implicate Prof.Cond.R. 7.1. See generally S.C. Bar Eth. Adv. Op. 03-04.

On the other hand, there exists a number of possible law firm names that utilize a trade name and that would be permissible under Prof.Cond.R. 7.1 and 7.5. For example, a law firm with multiple lawyers that concentrates its law practice in representing plaintiffs in personal injury law cases could ethically use the trade name “Ohio Personal Injury Associates.” Prof.Cond.R. 7.4(a), cmt.[1]. The name would only be considered false or misleading if no lawyers in the firm practice personal injury law or the firm ceased providing any legal services in the area of law used in the trade name. Likewise, a firm that exclusively practices in the area of insurance defense law may appropriately use the trade name “Ohio Insurance Defense Counsel.” However, a trade name is not required to reference the area of legal services the lawyer or the law firm provides in order to not be false, misleading, or nonverifiable. For example, a trade name such as “Summit Law” or “First Legal” would be permissible, even though the trade name does not indicate the area of law practiced

(Mike Frisch)

October 15, 2020 in Clients, Law & Business, Law Firms | Permalink | Comments (0)

Sunday, September 13, 2020

Legal Malpractice Arbitration Agreements Upheld In Georgia

The Georgia Supreme Court has held that a retainer provision mandating arbitration of legal malpractice claims does not violate public policy

Innovative Images, LLC (“Innovative”) sued its former attorney James Darren Summerville, Summerville Moore, P.C., and The Summerville Firm, LLC (collectively, the “Summerville Defendants”) for legal malpractice. In response, the Summerville Defendants filed a motion to dismiss the suit and to compel arbitration in accordance with the parties’ engagement agreement, which included a clause mandating arbitration for any dispute arising under the agreement.

The trial court denied the motion to dismiss, concluding that the agreement was unconscionable and violated public policy

the Court of Appeals reversed that ruling, holding that the arbitration clause was not void as against public policy or unconscionable.

The court here agreed

we conclude that regardless of whether Summerville violated GRPC Rule 1.4 (b) by entering into the mandatory arbitration clause in the engagement agreement without first apprising Innovative of the advantages and disadvantages of arbitration – an issue which we need not address – the clause is not void as against public policy because Innovative does not argue and no court has held that such an arbitration clause may never lawfully be included in an attorney-client contract. For similar reasons, the arbitration clause is not substantively unconscionable, and on the limited record before us, Innovative has not shown that the clause was procedurally unconscionable. Accordingly, we affirm the judgment of the Court of Appeals...

Even if we assume – as we will for the remainder of this opinion – that such conduct does violate Rule 1.4 (b) such that an attorney may be subject to professional discipline, the Arbitration Clause in dispute here is neither void as against public policy nor unconscionable.

Rather than unnecessarily addressing this attorney ethics issue by judicial opinion, we will leave it to the State Bar of Georgia to address in the first instance whether this is a subject worthy of a formal advisory opinion about or amendment to the GRPC. We have before us only one factual scenario and the arguments only of the parties and one amicus curiae (the Georgia Trial Lawyers Association). Under these circumstances, the Bar’s processes provide better opportunities to obtain input from all types of lawyers as well as the public and to consider all of the potentially applicable rules without limitation to a particular litigant’s arguments.

(Mike Frisch)

September 13, 2020 in Clients, Current Affairs | Permalink | Comments (0)

Wednesday, July 1, 2020

Missouri Holds Public Defenders Have Official Immunity

Public Defenders are entitled to official immunity and a judgment for legal malpractice was reversed by the Missouri Supreme Court.

The opinion is linked here. 

The case involved state charges which the defendant (plaintiff here) believed were not subject to jurisdiction, as the alleged burglary was of a post office.

The state brought the charges after federal authorities declined to proceed. 

The sued attorneys did not press the jurisdictional issue and were found liable for malpractice.


As public defenders, Perry and Flottman are entitled to official immunity because they are public employee whose official statutory duties concern the performance of discretionary acts. The legislature created a public defender system to provide legal services to indigent defendants entitled under the federal and state constitutions to the assistance of counsel in criminal prosecutions. State statutes entitle public defenders to all benefits of the state employees’ retirement system, and this Court’s rules of professional conduct characterize public defenders as public employees and governmental attorneys. One need not be a public official engaged in the essence of governing to be entitled to official immunity; such immunity extends to protect public employees from liability for alleged acts of negligence committed during the course of performing discretionary acts requiring exercise of a degree of reason and judgment. There is no dispute Perry and Flottman were acting pursuant to their constitutionally and statutorily mandated duties in representing Laughlin, and he made no allegation they acted with malice toward him during their representation. They also had no clear and unequivocal ministerial duty to assert the jurisdictional challenge; choosing which defenses to raise and which arguments to pursue on appeal on behalf of indigent clients constitutes a discretionary act entitled to official immunity.

(Mike Frisch)

July 1, 2020 in Clients | Permalink | Comments (0)

Friday, May 22, 2020

Loyalty And Fee Forfeiture

The Alaska Supreme Court upheld a contingent fee forfeiture as a result of ethics issues in the representation. 

If the link does not work, the case is Kenneth P. Jacobus, P.C. and Kenneth P. Jacobus v. Uwe Kalenka, Personal Representative of the Estate of Eric Wayne Kalenka, decided today. 

The court sets out the story

After a conflict of interest between an attorney and a long-time client arose during settlement negotiations, the attorney filed a confidential motion with the superior court criticizing his client. The client discharged the attorney and hired new counsel. But the attorney continued to control the settlement funds and disbursed himself his fee, even though the amount was disputed by the client. The court found that the attorney’s actions had violated the rules of professional conduct and ordered forfeiture of most of his attorney’s fees. We affirm the holding of the superior court.

Kenneth Jacobus represented the estate of Eric Kalenka for over a decade after Eric Kalenka was murdered in 2004.  Eric’s divorced parents, Uwe Kalenka and Dorcas Teall, were the estate’s beneficiaries; Uwe Kalenka was the personal representative. Uwe Kalenka retained Jacobus to represent him in the administration of his deceased son’s estate and to bring claims against insurance companies and third parties. Kalenka agreed to pay Jacobus’s fees by a combination of an hourly rate for work relating to the administration of the estate and a share of any recovery from the claims against insurance companies and third parties.

Three cases arose fromEric’s murder: a criminal case in which Jack Morell was convicted of second-degree murder;  a civil suit against an automobile insurer;  and a civil suit for wrongful death against the bar that had served alcohol to Morell (the Jadon litigation). Jacobus prevailed in reversing summary judgment for the bar in the Jadon litigation and entered into settlement negotiations.

In 2015 Jacobus filed an ex parte “Confidential Status Report” with the superior court. In it he stated that although the Jadon litigation appeared to be near settlement, he was concerned that Kalenka was unable “to reasonably evaluate any settlement offer.” Jacobus believed that Kalenka’s emotional state and desire for revenge would lead him to “refus[e] to accept a reasonable settlement offer,” and result in a trial with a “substantial chance of a defense verdict.” Jacobus believed that refusing to settle would be contrary to the best interests of the estate and the estate’s other beneficiary, Teall. Jacobus was also concerned he would not collect his fee given the low likelihood of success at trial. He therefore concluded that he could no longer assist Kalenka.

The trial judge ordered disclosure of the report to the client and held a hearing

The hearing was held in September 2015. Jacobus and Kalenka were present; Kalenka had retained a new attorney, Alfred Clayton. The court ordered the substitution of counsel, replacing Jacobus with Clayton. The next day Jacobus filed an attorney’s lien on funds related to his representation of Kalenka.

Kalenka, represented by Clayton, then settled the Jadon litigation. Following the settlement Clayton wrote Jacobus. This October 2015 letter advised Jacobus that “[t]he settlement check should soon be delivered to [Jacobus’s] office” and authorized him “to deposit [it] into [Jacobus’s] trust account.” The letter also stated that Jacobus was “not authorized to disburse any of the settlement funds from trust until disputes relating to [his] claim for fees and costs are resolved.”

Clayton’s letter then addressed Jacobus’s “claim for a . . . contingent fee from the settlement.” The letter listed events that had occurred since “the confidential probate filing” and stated that as a result “it is . . . Kalenka’s position you are entitled only to a fee in the amount of $83,333.33” rather than the $112,500 Jacobus claimed he was owed.

Clayton sought an accounting but

Jacobus responded a few days later in a lengthy letter with a number of attachments. The letter informed Clayton that Jacobus had already acted regarding the settlement proceeds and had created a new trust account, the “Kalenka Settlement Proceeds Trust,” with himself as trustee. Attached to the letter were an ethics opinion from the Alaska Bar Association and the Declaration of Trust for the newly established trust. The Declaration stated that the trust was created because “it appears necessary to protect the interests of all people who are involved with . . . Kalenka.” The trust’s purposes included protecting Teall’s share of the inheritance and Jacobus’s and Clayton’s fees and costs from interference by Kalenka.

On November 23 Clayton responded to Jacobus’s “astonishing letter.” He again requested the formal accounting of Jacobus’s costs and fees he had sought in his first letter. He then objected to Jacobus’s “extraordinary” actions in creating a new trust, unilaterally determining its purposes, and declaring himself its sole trustee, serving without bond. He accused Jacobus of “usurp[ing] the role of [the judge] who actually presides over the Probate proceeding.” Clayton described as “[e]ven more astonishing” Jacobus’s declaration that the “first thing” he intended to do was “communicate with . . . Teall” after the court had expressly denied his request for permission to do so.


A month after receiving Clayton’s letter, Jacobus filed a “Notice of Intent to Violate Court Order,” asserting that Alaska Rule of Professional Conduct 1.15(d) required him to violate the August order that forbade him from disclosing any confidential information to Teall without Kalenka’s permission. Jacobus claimed that he was ethically required both to promptly notify Teall that he had received funds and to distribute the amount to which Teall was entitled as a beneficiary of the estate.

The superior court ruled against the attorney

Jacobus appeals the superior court’s orders prohibiting him from revealing confidential information to Teall; its findings that he violated his duties to his client; and the order forfeiting the majority of his fees.

Here as to the superior court order

But Jacobus misinterprets both Rule 1.15(d) and the court’s order regarding communication with Teall. Rule 1.15(d) directs an attorney to promptly notify a client or third party upon receipt of funds or property in which the client or third party has an interest. The order prohibiting Jacobus from speaking with Teall only proscribed the “disclos[ure of] any confidential information.” Jacobus could thus have complied with both the order and Rule 1.15(d)’s directive simply by notifying Teall of the existence of settlement funds.

And contrary to Jacobus’s arguments, the December 2015 order made clear he was permitted to communicate with Teall or others. This order reiterated that Jacobus was ordered in August to refrain only from disclosing confidential information unless authorized by Kalenka; it did not prohibit Jacobus from revealing non-confidential information. Noting that the Jadon file was not confidential, the court stated that nothing in its August order prevented Jacobus from sharing information with Teall that a settlement had been reached.

And as to loyalty

The superior court found that Jacobus “continually violated” the duty of loyalty to his client, Kalenka. Jacobus filed pleadings that were directly adverse to Kalenka, ignored Kalenka’s instructions, and urged the court to take actions that were contrary to the instructions he had received from Kalenka.

And disbursement

The superior court did not err by concluding that Jacobus violated his duty to Kalenka when he disbursed funds to himself. Clayton’s October 2015 letter explicitly directed Jacobus to refrain from disbursing funds because of the ongoing dispute over the amount to which he was entitled. Jacobus therefore violated his duty of loyalty by paying himself $83,333.33. By filing pleadings and requesting authorization to take actions that were contrary to Kalenka’s interests and instructions to him, Jacobus also violated his duty of loyalty to his client. Further, by creating a trust for the specific purpose of protecting himself and third parties from his client after his client discharged him, and by paying himself from the trust funds despite an ongoing dispute over fees, Jacobus committed additional violations of his duty of loyalty to Kalenka. The superior court did not err by concluding that Jacobus had committed “egregious” violations of his ethical duties.

The court upheld forfeiture of the contingent fee. (MIke Frisch)

May 22, 2020 in Billable Hours, Clients | Permalink | Comments (0)

Wednesday, April 29, 2020

High Probabilities And Client Fraud

Ethical obligations when an attorney is faced with possible fraud by a current or prospective client are discussed in an opinion released today by the American Bar Association

Model Rule 1.2(d) prohibits a lawyer from advising or assisting a client in conduct the lawyer “knows” is criminal or fraudulent. That knowledge may be inferred from the circumstances, including a lawyer’s willful blindness to or conscious avoidance of facts. Accordingly, where facts known to the lawyer establish a high probability that a client seeks to use the lawyer’s services for criminal or fraudulent activity, the lawyer has a duty to inquire further to avoid advising or assisting such activity. Even if information learned in the course of a preliminary interview or during a representation is insufficient to establish “knowledge” under Rule 1.2(d), other rules may require the lawyer to inquire further in order to help the client avoid crime or fraud, to avoid professional misconduct, and to advance the client’s legitimate interests. These include the duties of competence, diligence, communication, and honesty under Rules 1.1, 1.3, 1.4, 1.13, 1.16, and 8.4. If the client or prospective client refuses to provide information necessary to assess the legality of the proposed transaction, the lawyer must ordinarily decline the representation or withdraw under Rule 1.16. A lawyer’s reasonable evaluation after inquiry and based on information reasonably available at the time does not violate the rules. This opinion does not address the application of these rules in the representation of a client or prospective client who requests legal services in connection with litigation.

From the conclusion

A lawyer’s reasonable evaluation after that inquiry based on information reasonably available at the time does not violate the rules.

(Mike Frisch)

April 29, 2020 in Clients | Permalink | Comments (0)

Saturday, April 25, 2020

Too Late To Sue

The Wyoming Supreme Court affirmed the dismissal of legal malpractice and related claims against an attorney

Mr. Foltz failed to plead his fraud claim with the particularity required by Rule 9(b), and his breach of contract claim, if any, arises out of his professional relationship with Mr. Oblasser. Mr. Foltz knew or should have known of his alleged cause of action against Mr. Oblasser no later than January 19, 2017. He filed his complaint on May 9, 2019. The two year professional malpractice statute of limitations therefore bars his complaint.

The representation involved serious criminal charges

In May 2015, Mr. Foltz retained Mr. Oblasser to defend him against a first degree murder charge. Mr. Foltz paid a $30,000 retainer, and Mr. Oblasser entered his appearance. When the State decided to seek the death penalty, Mr. Oblasser moved to withdraw from representation because he was not death penalty certified and thus could not independently represent Mr. Foltz. See Eaton v. State, 2008 WY 97, ¶ 37, 192 P.3d 36, 62 (Wyo. 2008) (adopting the American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (February 2003)). The court allowed Mr. Oblasser to withdraw and appointed two death penalty certified State Public Defenders to represent Mr. Foltz. The State Public Defender’s Office permitted Mr. Oblasser to assist in Mr. Foltz’s defense under a “pro bono agreement[,]” and Mr. Oblasser re-entered an appearance “acting as [an] Assistant Public Defender[.]” Mr. Oblasser continued in that capacity even after the State withdrew its death penalty election.

A jury convicted Mr. Foltz of first degree murder following a two-week trial in the fall of 2016. The district court sentenced him to life imprisonment without the possibility of parole on January 19, 2017. We affirmed his conviction and sentence in Foltz v. State, 2017 WY 155, 407 P.3d 398 (Wyo. 2017).

In October 2018, Mr. Foltz contacted Mr. Oblasser, requesting that he return the $30,000 retainer. Mr. Oblasser refused to refund the retainer, explaining he represented Mr. Foltz through trial.Mr. Foltz sued Mr. Oblasser and his firm on May 9, 2019. His pro se complaint alleged Mr. Oblasser knew the State could choose to pursue the death penalty and if the State did pursue the death penalty he would no longer be able to represent Mr. Foltz. The complaint further alleged Mr. Oblasser could not provide competent representation under Rule 1.1 of the Wyoming Rules of Professional Conduct; violated Rule 1.5(a) by charging a $30,000 retainer knowing he could not represent Mr. Foltz if the State elected to seek the death penalty; and, violated Rule 1.16(d) by withdrawing from representation without refunding the retainer.


Mr. Foltz filed his complaint and presents this appeal pro se. He concedes he did not file his complaint within the two-year statute of limitations applicable to a professional malpractice suit. Instead, he argues the complaint should be read to assert breach of contract and fraud claims subject to 10- and four-year statutes of limitations, respectively.
We agree with the district court that Mr. Foltz did not plead a fraud claim with the particularity required by Rule 9(b), W.R.C.P. 9(b), and conclude the two-year professional malpractice statute of limitations bars his complaint even if breach of contract was adequately pled.

Gillette News Record reported on the criminal case. (Mike Frisch)

April 25, 2020 in Clients | Permalink | Comments (0)

Wednesday, April 15, 2020

Public Defenders Immune From Legal Malpractice Claims In New Jersey

The New Jersey Supreme Court has held that a public defender is protected from liability by state law.

This case arises out of the representation of plaintiff Antonio Chaparro Nieves by a state public defender, Peter Adolf, Esq., for criminal charges related to sexual assault. After his conviction, Nieves was granted postconviction relief based on the ineffective assistance of counsel at trial. DNA evidence later confirmed that Nieves was not the perpetrator, and the underlying indictment against him was dismissed. Nieves subsequently recovered $608,333.33 in damages from the State under N.J.S.A. 52:4C-2, a section of the Mistaken Imprisonment Act, N.J.S.A. 52:4C-1 to -7, for the time he spent wrongfully imprisoned. He then filed the present legal malpractice action seeking damages against the Office of the Public Defender and Adolf.

Excerpted from the court's headnotes

The Court considers whether the Tort Claims Act (TCA), which governs tort actions filed against public entities and employees, applies to a criminal defendant’s legal malpractice claim filed against his public defender. The Court also considers whether, if the TCA applies, a claim for loss of liberty damages is subject to its “verbal threshold” for pain and suffering awards, as set forth in N.J.S.A. 59:9-2(d).

This case arises out of the representation of plaintiff Antonio Chaparro Nieves by a state public defender, Peter Adolf, Esq. After his conviction, Nieves was granted postconviction relief based on the ineffective assistance of counsel at trial. DNA evidence later confirmed that Nieves was not the perpetrator, and the underlying indictment against him was dismissed. Nieves subsequently recovered damages from the State for the time he spent wrongfully imprisoned. He then filed the present legal malpractice action seeking damages against the Office of the Public Defender (OPD) and Adolf.

Defendants moved for summary judgment, arguing that the TCA barred the damages sought because Nieves failed to vault N.J.S.A. 59:9-2(d)’s verbal threshold. The motion court concluded that the TCA and its verbal threshold were inapplicable. The Appellate Division reversed, concluding that “public defenders are public employees that come within the TCA’s immunities and defenses” and that Nieves’s claim fell squarely within the TCA. The Appellate Division also held that plaintiff’s claim for loss of liberty damages fell within the TCA’s limitation on recovery for pain and suffering in N.J.S.A. 59:9-2(d), which Nieves failed to satisfy.

The Court granted certification “limited to the issues of whether legal malpractice claims are exempt from the [TCA] and whether plaintiff’s ‘loss of liberty’ damages claim is subject to the verbal threshold of the TCA.” 237 N.J. 428 (2019).

HELD: The TCA applied to Nieves’s legal malpractice action, and his claim for loss of liberty damages failed to vault the verbal threshold for a pain and suffering damages claim under the strictures of N.J.S.A. 59:9-2(d). Defendants were entitled to summary judgment...

Although the professional representational duty owed by a public defender is to his or her individual client, N.J.S.A. 2A:158A-11, public defenders are performing a public function -- that of ensuring representation for indigent defendants in criminal matters brought by the State, see N.J.S.A. 2A:158A-3, -5. The fact that such attorneys are adversaries of other state actors prosecuting the criminal charges does not mean they lose their state public employee status under the TCA. The Act contains no express exemption for public defenders, or for public entities and public employees who fall within the definitions of those terms but are excluded because of the nature of their work. The OPD is a public entity under the TCA and Adolf is an employee of that public entity. Therefore, the TCA with its immunities, defenses, and limitation on tort claims filed against public entities and their public employees applies to defendants...

JUSTICE ALBIN, dissenting in part, agrees that the TCA applies here and would also hold that non-pecuniary damages -- such as pain and suffering, loss of liberty, and loss of enjoyment of life -- should not be awarded in legal malpractice cases at least in the absence of egregious or extraordinary circumstances. Justice Albin disagrees, however, that the TCA’s limitation on awards for “pain and suffering” in N.J.S.A. 59:9-2(d) also limits awards for loss of liberty, which is a distinct species of damages not mentioned in the statute. In Justice Albin’s view, neither the text of N.J.S.A. 59:9-2(d) nor the Court’s jurisprudence equates pain and suffering damages with loss of liberty damages, and the majority’s interpretation of N.J.S.A. 59:9-2(d) will have unintended negative consequences in cases unrelated to legal malpractice.

CHIEF JUSTICE RABNER and JUSTICES PATTERSON, FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE LaVECCHIA’s opinion. JUSTICE ALBIN filed a separate opinion, dissenting in part.

The Bar's view

The New Jersey State Bar Association fully supports defendants’ position that the TCA applies to claims of legal malpractice filed against public defenders in connection with representation of indigent individuals in criminal proceedings.

From the dissent

There is no basis in the TCA or our jurisprudence for the majority’s conclusion that “loss of liberty damages fall within the subset of emotional distress” in legal malpractice actions, see ante at ___ (slip op. at 19), or, for that matter, in any other legal action. Had the Legislature intended to sweep into the verbal threshold more than just pain and suffering damages, the statute would have limited the recovery of not just pain and suffering but also loss of liberty damages, or would have limited recovery of all non pecuniary damages. See N.J.S.A. 59:9-2(d). We must presume that the Legislature is conversant with our jurisprudence, that it chose the statute’s language with precision, and that it intended what it said. DiProspero, 183 N.J. at 492-94. Limiting the verbal threshold to pain and suffering was a policy choice made by the Legislature. This Court should not extend the metes and bounds of the verbal threshold beyond the Legislature’s clearly expressed intention...

Words and phrases make a difference. They do not have endless elasticity. Defining loss of liberty damages as the same as pain and suffering and emotional distress damages is a breaking point. I therefore respectfully dissent.

Video of oral argument is linked here. 

The court affirmed the decision of the Appellate Division. (Mike Frisch)

April 15, 2020 in Clients | Permalink | Comments (0)

Friday, April 10, 2020

Past Fraud And Undertaking Representation

An advisory opinion of the Ohio Professional Conduct Board is summarized in this staff report 

The Ohio Board of Professional Conduct has issued an advisory opinion outlining a lawyer’s responsibilities when a prospective client admits that he or she has previously engaged in fraudulent conduct.

The opinion replaces Adv. Op. 1990-7, issued under the former Ohio Code of Professional Responsibility.

In Advisory Opinion 2020-03, the board instructs that the lawyer must initially explain to the prospective client that the lawyer cannot assist the client in illegal or fraudulent conduct and that the lawyer’s disclosure of the prior conduct may become ethically required.

If the lawyer agrees to the representation, the board concludes that the lawyer must encourage the client to correct the fraudulent conduct. If the client fails to act, the lawyer may be required to independently disclose the activity and withdraw from the representation.

The opinion also addresses the lawyer’s obligation if he or she declines to undertake the representation.

(Mike Frisch)

April 10, 2020 in Clients | Permalink | Comments (0)

Wednesday, April 8, 2020

Attorney's Lien Survives Deposit Into Personal Account

The Maryland Court of Special Appeals has upheld the enforcement of an attorney's lien

Bibi Khan retained Tracey J. Coates, Esq. and the law firm of Paley, Rothman, Goldstein, Rosenberg, Eig & Cooper, Chartered (the “Law Firm”) to represent her in an action for modification of child custody and child support against her ex-husband Douglas Moore. As a result of the legal services rendered by the Law Firm, the Circuit Court for Montgomery County granted the Law Firm’s Motion to Adjudicate Rights in Connection with Attorney’s Lien. In granting the motion, the court ruled that the $50,000 attorney fee award, granted to Khan against Moore and deposited in Khan’s personal bank account, was subject to the Law Firm’s attorney’s lien and should be paid towards the lien. It is from this ruling that Khan appeals.


The [circuit] court’s ruling effectively validated the Law Firm’s attorney’s lien in the amount of $50,000 against the $50,000 fee award that Khan deposited in her personal Citibank account, and ordered Citibank to pay the $50,000 in her account to the Law Firm.

The court here rejected this contention

Khan argues that an attorney’s lien may only be enforced against the corpus of an existing award, not an account held by a third party. She contends that once the award for attorney’s fees was received from Moore and deposited into her bank account, the corpus no longer existed, and the Law Firm lost any right to assert a lien against the award...

Khan’s contentions are not supported by the plain meaning of § 10–501 or Maryland Rule 2-652(b), and the cases relied on are incompatible with the facts of the present case. For this reason, we hold that the circuit court’s interpretation and application of Maryland statutory and case law was legally correct.

(Mike Frisch)

April 8, 2020 in Billable Hours, Clients | Permalink | Comments (0)

Tuesday, March 31, 2020

New York Rejects Former Client's Claim That Attorneys Pursued Meritless Case To Generate Fees

The New York Court of Appeals affirmed the dismissal of claims by a former client for the alleged pursuit of a meritless claim to earn fees

The singular issue before us in this appeal is whether the Appellate Division erred in dismissing plaintiffs’ claim under Judiciary Law § 487 (1) against their former attorneys who allegedly induced them to bring a meritless lawsuit in order to generate a legal fee. Defendants met their initial burden on summary judgment with respect to whether their alleged deceit occurred during the pendency of litigation, and plaintiffs failed to raise a triable issue of fact on that issue in response. We therefore affirm the Appellate Division order granting summary judgment dismissing the complaint.

Defendants, attorney Mitchell Stein and his law firm, Stein Law P.C., represented plaintiffs Bill Birds, Inc., which manufactures decorative metal automobile parts, and its president in a trademark dispute against General Motors, Service Parts Operation (GM) and Equity Management, Inc. (EMI). After the complaint in that action was dismissed, plaintiffs commenced this action against defendants alleging, as relevant here, a violation of Judiciary Law § 487(1).

Plaintiffs alleged that defendants advised them that GM had possibly abandoned the trademarks GM had licensed to plaintiffs for over a decade, advising plaintiffs that they had meritorious claims against GM. Based on this advice, plaintiffs commenced the underlying federal trademark action against GM and EMI in the United States District Court for the Eastern District of New York, incurring $25,000 in attorney fees. Plaintiffs alleged that the underlying action—which was dismissed as commenced in an improper venue based on a forum selection clause in plaintiffs’ licensing agreements with GM—clearly lacked merit, in part because a provision in the licensing agreement prohibited plaintiffs from challenging GM’s ownership of the relevant intellectual property. Plaintiffs further alleged that defendants concealed the dismissal of the underlying action for approximately nine months and subsequently lied about the reason for the delay, claiming that the federal court did not release its decision promptly.

The underlying case

Plaintiffs alleged that defendants advised them that GM had possibly abandoned the trademarks GM had licensed to plaintiffs for over a decade, advising plaintiffs that they had meritorious claims against GM. Based on this advice, plaintiffs commenced the underlying federal trademark action against GM and EMI in the United States District Court for the Eastern District of New York, incurring $25,000 in attorney fees. Plaintiffs alleged that the underlying action—which was dismissed as commenced in an improper venue based on a forum selection clause in plaintiffs’ licensing agreements with GM—clearly lacked merit, in part because a provision in the licensing agreement prohibited plaintiffs from challenging GM’s ownership of the relevant intellectual property. Plaintiffs further alleged that defendants concealed the dismissal of the underlying action for approximately nine months and subsequently lied about the reason for the delay, claiming that the federal court did not release its decision promptly.

The court

To the extent defendants were alleged to have made deceitful statements, plaintiffs’ allegation that defendants induced them to file a meritless lawsuit based on misleading legal advice preceding commencement of the lawsuit is not meaningfully distinguishable from the conduct we deemed insufficient to state a viable attorney deceit claim in Looff (97 NY at 482). The statute does not encompass the filing of a pleading or brief containing nonmeritorious legal arguments, as such statements cannot support a claim
under the statute.  Similarly, even assuming it constituted deceit or collusion, defendants’ alleged months-long delay in informing plaintiffs that their federal lawsuit had been dismissed occurred after the litigation had ended and therefore falls outside the scope of Judiciary Law § 487 (1). Thus, plaintiffs’ Judiciary Law § 487 cause of action was properly dismissed.

Justice Rivera dissented and would hold that summary judgment was inappropriate here

Plaintiffs allege that their attorney induced them to pursue a frivolous lawsuit for the sole purpose of charging them thousands of dollars in legal fees and with counsel’s full knowledge ab initio that the claims were meritless. As our precedents establish, an attorney may be liable for common-law fraud against a client, but when the conduct includes deceit on the court or a party in a pending lawsuit, the attorney is separately guilty of a misdemeanor and liable for enhanced civil damages under Judiciary Law § 487 (see Melcher v Greenberg Traurig, LLP, 23 NY3d 10, 15 [2014]; see also Judiciary Law § 487). According to plaintiffs, their attorney intentionally, and without regard to the ultimate outcome for plaintiffs, perpetuated a charade on the court and them by filing and pursuing what the attorney knew all along was a meritless action—one doomed to fail—which caused plaintiffs to pay the attorney’s unwarranted legal fees. I dissent because plaintiffs’ cause of action for attorney deceit was improperly dismissed on summary judgment as they asserted a viable legal theory and there exist triable issues of fact as to whether the alleged deceit caused plaintiffs’ any damages.

And recites the historic antecedents to the present section 487

These three decisions stand for several propositions that inform the analysis here. First, an action for attorney deceit existed under New York’s common law and predates the first state statute from 1787, which itself originated in English law and led to the enactment of Judiciary Law § 487 (Melcher, 23 NY3d at 15; Amalfitano, 12 NY3d at 12). Second, section 487, like its predecessors, codifies attorney deceit as a crime and provides for civil treble damages (Amalfitano, 12 NY3d at 13-14). Third, section 487 does not derive from or supplant common-law fraud, which applies to a broad spectrum of deceitful conduct, including pre-litigation deceit by an attorney, such as inducing a client to retain the attorney in matters the attorney knows are wholly without merit for the sole purpose of securing payment from the client (see Melcher, 23 NY3d at 14-15). Fourth, unlike common-law fraud, section 487 is limited to attorney deceit on the court or a party in the course of litigation (Amalfitano, 12 NY3d at 15; Looff, 97 NY at 482).

Applying these propositions here leads to the logical conclusion that Judiciary Law § 487 encompasses attorney deceit in the form of filing and pursing a knowing frivolous lawsuit...

This interpretation of section 487 and our precedents would not subject attorneys to liability for “poor lawyering, negligent legal research or the giving of questionable legal advice” (majority op at 6 n 2). An attorney is not subject to liability under Judiciary Law § 487 merely because their client fails to prevail in litigation. Otherwise, there would be a flood of meritless actions by dissatisfied clients since in our legal a system there is always a “losing” party. As the Court first stated in Amalfitano, the legislature codified the misdemeanor crime and civil treble damages remedy for attorney deceit because that specific type of conduct is particularly harmful to our judicial system (Amalfitano, 12 NY3d at 14; see also Melcher, 23 NY3d at 15). The legislature’s intent “to enforce an attorney’s special obligation to protect the integrity of the courts and foster their truthseeking function” does not include penalizing an attorney for professionally competent, albeit unsuccessful, advocacy. Indeed, an attorney has a professional duty and ethical obligation, within the bounds of the law, to aggressively advocate colorable claims on behalf of their client (see Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.3 Comment [1] [Note: citation to rule and commentary]). However, the legislature, concerned with “enforc[ing] an attorney’s special obligation to protect the integrity of the courts and foster[ing] their truth seeking function” (id.), could not have intended to exclude from the statute’s coverage an attorney’s intentional filing of a frivolous lawsuit for the sole purpose of obtaining unwarranted legal fees.

(Mike Frisch)

March 31, 2020 in Clients | Permalink | Comments (0)

Sunday, February 2, 2020

When The Client Has A Right To Know The Lawyer Erred

The South Dakota Supreme Court reversed the grant of summary judgment to a defendant in a legal malpractice case.

The alleged malpractice involved the failure to timely serve a defendant in an accident case. 

The court discusses the duty to communicate errors in representation to the client, noting that a recent ABA opinion was not binding

We do not, however, view the ABA’s opinion to be binding on this Court, nor does the opinion necessarily establish a tort duty or express a standard of care for liability purposes.


When an act, error, or omission could reasonably be expected to be the basis of a legal malpractice claim against a lawyer, the lawyer’s professional responsibility to keep a client “reasonably” informed is directly implicated. Imposing a legal duty to disclose such an act, error, or omission serves the purpose of ensuring that a client is able to make an informed decision about how best to proceed under such circumstances...

Here, [attorney] Howey-Fox was informed within days that Ewalt had not been served in Yankton County, and that service was not made within three years from the date of the accident. Howey-Fox also admitted that she “immediately” notified her professional malpractice carrier of the potential malpractice claim against her. The personal injury action against Ewalt was finally dismissed on April 5, 2013, for failure to timely commence the action. It is beyond debate, under the standard we define today, that Howey-Fox had a duty to disclose the potential malpractice claim to Robinson-Podoll when the personal injury action against Ewalt was dismissed on April 5, 2013, and likely much before that time. Yet Howey-Fox testified,

Q: Did you ever advise Miss Robinson that there was a potential legal malpractice claim stemming from the improper service? [Howey-Fox]: Nope. I told her she had a potential claim against the county for their failure to serve or, at the very least, failure to tell me when they knew she wasn’t living in Yankton County to give those papers back, or at the least let me know so I could get her served.

But as to the start of the malpractice limitations

Here, Robinson-Podoll initially sustained damage from a single act of alleged negligence when Howey-Fox failed to timely commence the personal injury action against Ewalt. Any wrongful conduct by Howey-Fox thereafter in failing to disclose the error was not the cause of that initial injury. Thus, the continuing tort doctrine did not delay the occurrence of the three-year repose period on the malpractice claim for failing to timely file the personal injury action.

Nevertheless, questions of fact exist as to whether Howey-Fox’s alleged ongoing tortious conduct in failing to disclose this malpractice supports a separate claim for legal malpractice, that occurred less than three years before Robinson-Podoll commenced this action in January of 2016. Viewing the facts most favorably to Robinson-Podoll shows that Howey-Fox’s duty to disclose and alleged breach of that duty occurred after Howey-Fox allegedly failed to timely commence the personal injury action in 2010. Facts also exist showing that Howey-Fox’s failure to disclose this alleged error during the representation, that continued through 2015, resulted in (1) “a continuous and unbroken course of negligent” representation, and (2) the representation “was so related as to constitute one continuing wrong.”

Finally, as to the ring, we conclude that Robinson-Podoll sufficiently alleged ongoing acts or omissions that support a claim for continuing tortious conduct. Robinson-Podoll claims that Howey-Fox took the ring as collateral in 2012 and held it throughout the representation. Questions of fact exist on this record as to whether Howey-Fox breached professional duties owed to Robinson-Podoll by taking the ring and continuing to hold the ring without returning it to Robinson-Podoll. [citing Rule 1.8] These questions require that we also remand this claim to determine the date of the occurrence under the continuing tort doctrine.

February 2, 2020 in Bar Discipline & Process, Clients | Permalink | Comments (1)

Wednesday, January 29, 2020

New Jersey Upholds Invalidation Of Fee Agreement: Creates Committee To Address Fee Ethics

The facts of a decision by the New Jersey Supreme Court are summarized in the headnote

Plaintiff Lisa Balducci instituted a declaratory-judgment action to invalidate the retainer agreement into which she entered with her former attorney, defendant Brian Cige, on the ground that Cige procured the agreement in violation of the Rules of Professional Conduct. A Superior Court judge voided the agreement, and the Appellate Division affirmed. But the Appellate Division also made a number of pronouncements about ethical obligations on attorneys handling fee-shifting claims. The Court considers Cige’s challenge to the judgment against him, as well as arguments that the professional obligations imposed by the Appellate Division are at odds with current practices and are not mandated by the Rules of Professional Conduct.

Balducci retained Cige to represent her son in a bullying lawsuit, brought under New Jersey’s Law Against Discrimination (LAD), against a school district. Three years later, she terminated Cige’s representation and retained another lawyer to handle the case. Balducci filed a declaratory-judgment action to void the retainer agreement, and a Superior Court judge conducted a hearing at which Balducci, her son, and Cige testified.

Balducci testified that, in September 2012, she approached Cige about bullying that her son had encountered in school. Cige presented her with what he described as a standard retainer agreement for a LAD case, and Balducci raised questions about language that seemingly made her the guarantor of all legal fees and costs, even if the lawsuit failed. Cige told her not to be alarmed by the “standard language” and assured her that the attorney’s fees would be paid by the school board, not by her. (That account was corroborated by Balducci’s son, who testified that he was present during the meeting.) Trusting Cige, Balducci signed the agreement, one key provision of which required her to “pay the Law Firm for legal services the greater of” Cige’s hourly rate, 37 1/2% of both the net recovery and any statutory fee award, or statutory attorney’s fees.

By early 2015, Balducci became dissatisfied with Cige’s handling of the case. The school board rejected her first settlement demand of $3,500,000. After consulting with an expert in bullying cases, Cige approximated the value of the case at somewhere between $500,000 and $700,000. Only when Balducci terminated his services did he inform her she was responsible for the payment of his hourly fees -- almost $271,000.

Cige gave a very different account, but admitted that he did not inform Balducci of the potential value of the case, of the potential litigation expenses, or of the estimated financial obligation she would bear if the litigation did not succeed. Nor did he detail the billing rates for expenses in the retainer agreement. The expenses for the emails -- $1.00 for every email sent or received -- amounted to just over $1700 and were in addition to the hourly rate he charged. Photocopying costs represented almost $12,000 of the nearly $16,000 in expenses owed at the time Cige’s services were terminated.

At the conclusion of the plenary hearing, the trial court invalidated the retainer agreement, crediting Balducci’s testimony over Cige’s. The Appellate Division affirmed, finding substantial and credible evidence in the record to support the trial court’s decision. 456 N.J. Super. 219, 234, 243-44 (App. Div. 2018).

The Appellate Division also articulated a set of ethical obligations, purportedly arising from the Rules of Professional Conduct, that must be followed by attorneys in fee-shifting actions when a retainer agreement includes an hourly fee component. Those obligations are discussed in numbered paragraphs 6-9 below.

The Court granted certification limited to Cige’s challenge of the invalidation of the agreement and his claim that the Appellate Division retroactively applied new rules of professional conduct. 236 N.J. 616 (2019).

The court affirmed the invalidation of the agreement but rather than adopt the expansive views of the Appellate Division regarding fee-shifting retainer agreement ethics

The invalidation of the retainer agreement is supported by sufficient credible evidence in the record. Although the Appellate Division’s concerns over the retainer agreement in this case are understandable, the ethical pronouncements issued in its opinion may have far-reaching and negative effects, not only on employment-law attorneys and attorneys handling fee-shifting claims, but also on their clients. Some of those pronouncements appear too broad and some unsound, and others are worthy of the deliberative process by which new ethical rules are promulgated by the Court...

The Court notes that those issues all require careful and thoughtful consideration and deliberation. The Court generally establishes professional standards governing attorneys through the rulemaking process. Several Supreme Court committees have overlapping jurisdiction over the professional-responsibility issues raised in this opinion: the Civil Practice Committee, the Professional Responsibility Rules Committee, and the Advisory Committee on Professional Ethics. The Court has decided that the study of the professional-responsibility issues should be addressed by a newly established ad hoc committee comprised of representatives of those three committees, and of other representative members of the Bar and Bench with experience in these matters. The Court therefore will ask the Administrative Director of the Courts to select members for this committee for the Court’s approval.

This committee of experienced judges and attorneys will make recommendations on the questions raised in this opinion. With the valuable input and insight from the committee, the Court then will be able to carefully survey all viewpoints and deliberate before considering any new rule of general applicability to the Bar. The committee may also consider whether to revisit a cap on contingent fees in statutorily based discrimination and employment claims. See R. 1:21-7(c). The Court expresses no ultimate opinion on the matters referred to the committee.

(Mike Frisch)

January 29, 2020 in Billable Hours, Clients | Permalink | Comments (1)

Friday, January 24, 2020

Hindsight And Transactional Malpractice

The Nevada Supreme Court affirmed a district court's grant of summary judgment to a legal malpractice defendant, holding that the same causation test applies to allegations of transactional malpractice as to litigation matters.

The client was the seller in a failed Reno real estate transaction who had been subject to a mechanic's lien claim. The client had lost on the issue, discharged and sued the law firm but eventually prevailed on the lien.

Iliescu alleges that Hale Lane committed professional malpractice by negligently representing Iliescu during the failed real estate transaction, and during subsequent litigation to expunge the mechanic's lien. Iliescu argues that Nevada treats litigation malpractice and transactional malpractice differently for purposes of establishing proximate causation. Specifically, Iliescu argues that Hale Lane could have taken various preventive measures during the failed real estate transaction to  protect against the risk of a mechanic's lien, and that Hale Lane's alleged transactional negligence should be subject to a substantial factor test for causation, rather than the but-for test. We are not persuaded that different standards for proximate causation control in this case.

The court

This case does not implicate a concurrent independent cause. Hale Lane's purportedly negligent failure to warn or protect against a mechanic's lien was not sufficient, by itself, to bring about the filing of the mechanic's lien. The developer's hiring of the architect who filed the lien, the architect's performance of offsite design services, and the developer's default and subsequent failure to compensate the architect for his work, also had to occur in order for the lien to be filed and for Hale Lane's alleged transactional negligence to be actionable. These multiple forces necessarily depended on one another, and were insufficient of themselves, to bring about the filing of the lien. Accordingly, no concurrent independent cause is implicated here, and Iliescu must instead establish that, but for Hale Lane's alleged transactional negligence, a mechanic's lien would not have been filed.

And failed to do so

Iliescu has not raised any genuine issue of material fact by simply alleging various steps Hale Lane should have taken to protect Iliescu from the filing of a mechanic's lien. Iliescu's transactional malpractice claim cannot survive under the but-for causation test as a matter of law.

As to litigation malpractice

Iliescu also alleges that, after the mechanic's lien was filed, Hale Lane negligently failed to sufficiently challenge the legal deficiencies invalidating the lien. Iliescu specifically alleges that Hale Lane erroneously invited the district court to order discovery in the underlying mechanic's lien litigation, by focusing the court's attention on a fact issue of whether or not Iliescu had sufficient actual knowledge of the off-site work that predicated the filing of the lien. Iliescu argues that Hale Lane should have treated the fact question of actual knowledge as legally insignificant, and instead should have argued as a matter of law that Iliescu's knowledge was irrelevant because the design services were performed off-site. We conclude this argument is unavailing and that Iliescu has failed to raise a genuine fact issue sufficient to overcome summary judgment.

It is difficult to grasp how Hale Lane could have made an onsite/offsite legal distinction in its 2007 litigation to expunge the mechanic's lien, given the state of the law at that time.

...we affirm the district court's rejection of Iliescu's proposed amended complaint. The district court correctly concluded that Iliescu's attempt, with the benefit of more than ten years of hindsight, to allege various steps Hale Lane should have taken during the transaction, would have been futile.

The opinion in Iliescu v. Hale Lane was issued on January 23, 2020. (Mike Frisch)

January 24, 2020 in Clients | Permalink | Comments (0)

Friday, January 10, 2020

No Conversion In Handling Entrusted Funds; New Jersey Rejects Non-Client Claims

The New Jersey Supreme Court rejected claims arising from Fox Rothschild's handing of entrusted funds per the court's head note

This appeal involves claims of conversion and breach of fiduciary responsibility leveled at an attorney, Anthony Argiropoulos, Esq., and his then-law firm, Fox Rothschild LLP (collectively, “the firm”), regarding funds wire-transferred to the firm’s trust account.

As alleged in this matter, an intermediary entity wired funds for plaintiff Moshe Meisels, a London-based real estate investor, to the firm’s trust account in connection with a real estate deal in which Eliyahu Weinstein, the firm’s client, was engaged. Prior to the commencement of this litigation, the firm was admittedly unaware of Meisels’s  existence. It is undisputed that Meisels did not speak to, or otherwise communicate with, Argiropoulos or Fox Rothschild.

In his pleadings, Meisels alleges that he had Rightmatch Ltd., an entity located in London, transfer over $2.4 million to the attorney trust account of Fox Rothschild, Weinstein’s attorneys at the time. Rightmatch wired the money in two transfers, executed by Cambridge Mercantile Group. Confirmations for each transfer were sent, “[f]or and on behalf of Cambridge Mercantile Corp.,” to Rightmatch, with a single line indicating “Attn: Moshe Meisels.” The transfers themselves did not identify plaintiff as the funds’ owner or include any instructions regarding limitations or conditions.

Defendants distributed the funds as their client directed. Meisels alleges that Weinstein instructed the firm to distribute the funds for purposes other than the agreed upon real estate transaction. According to Meisels, the purchase of the Irvington property was never consummated; Weinstein defrauded Meisels and his related co-plaintiffs.

Plaintiff commenced this action in 2012 and, after discovery and the filing of an amended complaint, defendants sought summary judgment on the grounds that (1) plaintiff did not produce evidence to support ownership of the funds that Rightmatch wired to Fox Rothschild and therefore lacked standing to sue; and (2) plaintiff had no contact with anyone from Fox Rothschild and, therefore, could not establish the essential elements of any of the claims.

The motion court granted summary judgment to the firm and dismissed the amended complaint with prejudice. The Appellate Division affirmed as to the fiduciary duty claim but reversed as to the conversion claim, rejecting defendants’ argument “that Meisels was required to show that he demanded the return of his property.”

The Court granted defendants’ petition for certification, seeking review of the Appellate Division’s judgment reinstating the conversion claim. 236 N.J. 67 (2018). The Court also granted plaintiff’s cross-petition, seeking review of the Appellate Division’s judgment dismissing the breach of fiduciary duty claim. 236 N.J. 44 (2018).

HELD: The firm did not breach any fiduciary duty where the firm was not made aware, nor did it have any basis on which it reasonably should have been aware, of plaintiff or of a claim by plaintiff to the funds. As such, there was no relationship between the firm and plaintiff on which a fiduciary duty was owed. On that issue, the Court affirms the judgment of the Appellate Division. However, defendants cannot be found to have engaged in conversion in this matter. Where, as here, a law firm lawfully holds in trust wired funds for its client’s real estate transaction, which funds are received with no limiting direction or instruction and for which the firm receives no demand from the nonclient, the firm’s disposition of the trust funds in accordance with the client’s instructions does not give rise to a claim for conversion. The Court rejects the reasoning that under these circumstances the obligation to make a demand is excused and reverses as to the conversion claim.

  1. As officers of the courts, attorneys owe a duty of care that finds helpful benchmarks in the Rules of Professional Conduct (RPCs). Standing alone, a violation of the RPCs does not create a cause of action for damages in favor of a person allegedly aggrieved by that violation. In this matter, the RPCs provide relevant information for assessing the claimed violation of a fiduciary duty with which the firm is charged. RPC 1.15 addresses an attorney’s obligation to safeguard property in his or her possession, including property received from a non-client third party. (pp. 12-14)
  2. Here, RPC 1.15 does not provide a pathway for finding a fiduciary duty that was breached by the firm. Meisels maintains that an attorney “owes a fiduciary duty to persons, though not strictly clients, who he knows or should know rely on him in his professional capacity.” However, case law extending an attorney’s duty to a third party not in privity with the attorney has been approached with care so as to be fair to all; generally stated, it is cabined by considerations of reasonableness. Meisels admits that defendants had no knowledge of his existence, had no contact with him, possessed no knowledge about any purported agreement between him and Weinstein, and made no representations to Meisels. It is simply not reasonable to expect a lawyer to have fiduciary obligations to an individual under such circumstances. Meisels produced no evidence to show that he relied upon defendants in their professional capacity. The circumstances of this case, moreover, offer no indicia that defendants endeavored to induce Meisels to rely on the firm. Inducement of reliance cannot be ascribed to the firm simply because the funds for its client’s commercial real estate transaction were permitted to be wired to and held in the firm’s trust account. In these circumstances, the firm’s disposition of the funds held in its trust account in compliance with the client’s instructions, as required by RPC 1.2, was not a breach of fiduciary duty. No fiduciary duty was owed by the firm to Meisels. (pp. 14-18)
    3. The Court traces the history of the tort of conversion. To determine whether a conversion has occurred, there must first be an assessment into whether defendant has independent dominion and control over the subject property. Additionally, where the defendant lawfully acquired plaintiff’s property, the plaintiff must show that he demanded the return of the property and that the defendant refused compliance. The demand is the linchpin that transforms an initial lawful possession into a setting of tortious conduct, if the demand is refused. Accordingly, in such circumstances, a demand is essential; a claimant must make a demand at a time and place and under such circumstances as defendant is able to comply with if he is so disposed, and the refusal must be wrongful. There are circumstances, to be sure, where demand may be futile, but that is and must be viewed as an exception. (pp. 18-22)
    4. Funds held in an attorney’s trust account for its client are the client’s funds, not the firm’s. Here, with no knowledge of a competing claim to the funds -- and, indeed, no knowledge whatsoever about Meisels and his role in the transaction -- the firm acted appropriately in adhering to the client’s directions. Meisels cannot prove that the firm itself exercised independent dominion and control over his funds. That requirement for a conversion claim is lacking in this matter. The lack of independent dominion and control, moreover, renders more serious the lack of demand here. The demand would have been the means to alert the firm that a competing claim existed and would have triggered the firm’s obligation to reasonably inquire further, and perhaps seek judicial assistance, before embarking on fulfillment of a client’s direction. Violation of the demand might then create the tort of conversion. Only when an attorney misdirects or misappropriates funds, or when an attorney has acted contrary to a known, competing claim -- or a competing claim that reasonably should have been known -- can there be an independent dominion or control over the funds by the firm to the repudiation of the rights of the proper owner. (pp. 23-25)

The judgment of the Appellate Division is AFFIRMED IN PART and REVERSED IN PART, and the Court orders the conversion claim DISMISSED. CHIEF JUSTICE RABNER and JUSTICES ALBIN, PATTERSON, FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE LaVECCHIA’s opinion.

Oral argument linked here. (Mike Frisch)

January 10, 2020 in Clients, Current Affairs | Permalink | Comments (0)