Saturday, October 9, 2021

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.


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.


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)

October 9, 2021 in Clients | Permalink | Comments (0)

Thursday, September 30, 2021

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)

September 30, 2021 in Clients | Permalink | Comments (0)

Friday, September 10, 2021

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)

September 10, 2021 in Billable Hours, Clients | Permalink | Comments (0)

Thursday, September 2, 2021

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)

September 2, 2021 in Bar Discipline & Process, Billable Hours, Clients, Current Affairs | Permalink | Comments (0)

Monday, August 9, 2021

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)

August 9, 2021 in Clients | Permalink | Comments (0)

Monday, July 26, 2021

Fee Dispute May Proceed

A convicted defendant cannot pursue a malpractice claim against his post-conviction attorney so long as the underlying conviction remains in force and effect.

Absent reversal, such claims are unripe, according to a decision of the Connecticut Appellate Court.

However, the defendant may pursue a claim involving fees

We are persuaded that the policy and practical considerations behind the requirement that an action that necessarily implies the invalidity of a conviction must be dismissed if the underlying conviction has not been invalidated do not apply to the fee dispute allegations in the present case. As the court in Bird noted, in a fee dispute, the criminally convicted plaintiff is not seeking to shift the responsibility for and consequences of his criminal acts to his former counsel, nor is the client’s own criminal act the ultimate source of his predicament. Id., 428. Moreover, a judgment for a criminally convicted plaintiff in a fee dispute is not inconsistent with the judgment of his criminal conviction. Id. If a criminally convicted plaintiff could challenge defense counsel’s excessive or unlawful fees only if he or she is able to prove the invalidity of the underlying conviction, then ‘‘guilty clients could never seek redress against even the most unscrupulous attorneys.’’ (Internal quotation marks omitted.) Id., 431. We agree with the court in Bird that there is ‘‘no rational basis for affording criminal defense attorneys a virtually impregnable shield against suits to recover excessive or unlawful fees. Nor can we find any rational basis for affording civil litigants, no matter how morally blameworthy they may be, a remedy for exactly the same unlawful conduct, double-billing, inflating hours, etc., for which most criminal litigants are denied a remedy.’’ Id. Accordingly, we conclude that the allegations that the plaintiff makes in support of his fraud claim that merely constitute a fee dispute and that do not implicate the validity of his underlying conviction are not controlled by Taylor, and that dismissal of his fraud claim was unwarranted.

(Mike Frisch)

July 26, 2021 in Billable Hours, Clients | Permalink | Comments (0)

Wednesday, July 7, 2021

Irreconcilable Differences

A law firm that withdrew from representation due to irreconcilable differences with the client nonetheless retained its right to a lien on the subsequent settlement, as held by the New York Appellate Division for the Second Judicial Department

In May 2013, the plaintiffs in these related actions retained nonparty Greenberg & Wilner, LLP (hereinafter Greenberg), to represent them, inter alia, to recover damages for breach of contract against their former employer. The plaintiffs each entered into a separate retainer agreement pursuant to which they each agreed to pay Greenberg a contingency fee of 35% of the sum recovered, plus disbursements. In January 2018, after the matters were scheduled for trial, Greenberg moved for leave to withdraw as the plaintiffs’ counsel based upon undisclosed “irreconcilable differences.” The motion was granted unopposed. Greenberg requested that the matter be adjourned to allow the plaintiffs an opportunity to obtain new counsel. In March 2018, the plaintiffs retained the services of new counsel for an hourly fee. After one day of trial, the actions were settled for an undisclosed amount.

Crucial to the holding

Here, the plaintiffs’ contention that Greenberg withdrew without sufficient cause is not supported by the record. The evidence at the hearing demonstrated that Greenberg’s request to withdraw was based on irreconcilable differences regarding the appropriate course to be taken in the actions and a breakdown in the attorney-client relationship (see Robinson v Friedman Mgt. Corp., 49 AD3d 436, 437; Winters v Rise Steel Erection Corp., 231 AD2d 626, 626-627; Generale Bank, New York Branch v Wassel, 1992 WL 42168, 1992 US Dist LEXIS 2001 [SD NY, 91 Civ 176 (PKL)]). Therefore, Greenberg maintained its right to enforce its statutory lien.

The lien consists of 95% of the fee. (Mike Frisch)

July 7, 2021 in Billable Hours, Clients | Permalink | Comments (0)

Friday, June 11, 2021

Unpaid Fee Lost

The Rhode Island Supreme Court affirmed the denial of relief to an attorney seeking post-mortem payment of the bills to a client

The trial testimony reveals that in 1991, plaintiff, a practicing attorney, met David F. LaRoche (David F.), who had been referred to plaintiff by another attorney for representation connected to an involuntary bankruptcy case. The plaintiff represented David F. for the entirety of that bankruptcy action and, later, another bankruptcy action. The plaintiff received some compensation for this representation; however, he did not receive all that he had billed. As a result, David F. owed plaintiff approximately $160,000 for his representation. No payments were ever made as to that amount.

In the summer of 2001, plaintiff and David F. entered into an agreement, memorialized in a promissory note, wherein the sum due to plaintiff was reduced to $140,000, and terms were established for that sum to be paid. The promissory note was due on October 10, 2006. According to plaintiff, he never received any payments from David F. on this note.

At some point, David F. informed plaintiff that he was gravely ill. Upon receiving this information, plaintiff determined that he would not take action against David F. while he was dealing with his illness. David F. died on February 26, 2009.

After his informal efforts to collect failed, the attorney filed suit in June 2010. The matter was tried in September 2014.

The trial court issued its decision in July 2019, rejecting unjust enrichment claims against a slew of individual and business defendants associated with the deceased.

The record contains no explanation for the seemingly unreasonable nearly five-year delay between the filing of posttrial memoranda and the issuance of the trial justice’s decision. We remind all judicial officers of their obligation to dispose of court business promptly and diligently.

Here, he appealed the failure to order a constructive trust

As no claims survived under the trial justice’s decision—and, on appeal, the plaintiff did not contest the trial justice’s decisions as to those claims—there is no surviving claim for which a constructive-trust remedy might be imposed.

(Mike Frisch)

June 11, 2021 in Billable Hours, Clients | Permalink | Comments (0)

Tuesday, April 27, 2021

Poaching Of Clients As Tortious Interference

A defamation claim has failed but a tortious interference claim survives in a suit brought against attorneys who had taken cases from the plaintiff law firm.

So held the New York Appellate Division for the First Judicial Department

The defamation claim must be dismissed as against all defendants, because the only statements found actionable by the motion court were made to plaintiff's paralegal, i.e., plaintiff's representative, and not to a third party (see Richards v Security Resources, 187 AD3d 452, 453 [1st Dept 2020]). The defamation per se claim is included, since no harm can be presumed to result to plaintiff from statements made to its own representative. Contrary to plaintiff's contention, the court did not "infer" that defamatory statements were made to its clients. It ruled that statements made to plaintiff's clients were nonactionable because they were pleaded without the requisite particularity and/or time-barred (see CPLR 3016[a]; BCRE 230 Riverside LLC v Fuchs, 59 AD3d 282 [1st Dept 2009]).

As to the tortious interference claim, the parties do not challenge the court's articulation of the elements of such a claim in the context of terminable-at-will retainer agreements, namely, that the defendant's conduct must constitute a crime or an independent tort (see e.g. Steinberg v Schnapp, 73 AD3d 171, 176 [1st Dept 2010]). We find that the complaint, as augmented by affidavits submitted in opposition to defendants' motions to dismiss, and in conjunction with the undisputed proof of the four clients who substituted plaintiff for either the Schweitzer firm or the Garcia firm, states at a minimum a cause of action for tortious interference premised on violations of Judiciary Law §§ 479 and 482, which are unclassified misdemeanors (Matter of Ravitch, 82 AD3d 126, 127 [1st Dept 2011]; Matter of Boter, 46 AD3d 1, 3 [1st Dept 2007]). Affidavits show that defendants' efforts to lure away plaintiff's clients involved the use of case runners to solicit business on their behalf. Although the affidavits by the unnamed Clients 1-5, who remained plaintiff's clients, do not alone support the tortious interference claim, they shed light on the tactics to which defendants were apparently willing to resort, as does the affidavit by the Schwitzer firm's former employee, which is consistent with those by Clients 1-5. The court properly declined to consider the affidavit by Cerda Rodriguez, a client who substituted the Schwitzer firm for plaintiff, which was submitted by the Schwitzer Defendants in support of their motion for leave to renew, because they failed to offer reasonable justification for failing to submit it on the prior motion (CPLR 2221[e][e]). We note that in any event the affidavit is not the determinative blow to the tortious interference claim that the Schwitzer Defendants maintain it is.

Moreover, as the court found, the tortious interference claim is supported, at this pleading stage, by the departure of the three other clients who retained the Garcia firm, which, in turn, retained the Schwitzer firm as trial counsel. The Garcia Defendants argue that these substitutions do not show any wrongful conduct on their part, and the Schwitzer Defendants argue that their retention as trial counsel in these matters post-dated the events alleged in the complaint. However, at a minimum, the circumstances raise issues of fact as to the business relationship between the Garcia and Schwitzer firms and, in view of the evidence of the Schwitzer firm's tactics, invite inquiry as to how the Garcia firm, which then brought in the Schwitzer firm, became counsel to these individuals. The dates on which the Schwitzer firm formally became trial counsel do not constitute evidence of its first consultation as to these cases or whether, and to what degree, the two firms coordinated in an effort to secure these clients.

The court correctly declined to dismiss the complaint as against the individual defendants. Given these individuals' alleged direct involvement in the events that underlie the tortious interference claim, supported by affidavits submitted by plaintiff, the Schwitzer Defendants' arguments premised on the shortcomings of vicarious liability doctrines are not relevant.

The Supreme Court decision appealed from characterizes the allegations as "poaching" clients.  (Mike Frisch)

April 27, 2021 in Clients | Permalink | Comments (0)

Monday, April 26, 2021

Malpractice Arbitration Upheld In Wyoming

The Wyoming Supreme Court has held that 

We conclude the district court: erred when it failed to stay the malpractice action as required by the Wyoming and Utah Uniform Arbitration Acts; properly limited its review to whether the arbitration provision was enforceable; and correctly ruled on the enforceability of the arbitration provision. We therefore affirm the district court’s order compelling arbitration, but reverse its dismissal of the action and remand with instructions to stay the proceedings pending arbitration.

The attorney had represented three beneficiaries to a trust

Grimmer represented Ms. Inman, Patterson, and Daisha over the next three years, including in a probate action and a civil action in Wyoming against Daralee, challenging her depletion of trust assets. Grimmer also grew involved in Ms. Inman’s life, helping her find employment, arranging educational tutors, and assisting her with travel arrangements, health care, and buying a car. After she turned 18 in 2015, Ms. Inman signed a new engagement agreement at Grimmer’s request. The new agreement contained an arbitration provision. Grimmer also continued to represent Patterson and Daisha.

Ms. Inman’s and Patterson’s interests soon diverged. By 2017, Ms. Inman wished to end the litigation against Daralee but Patterson did not. In 2016 and 2017, Grimmer helped Patterson attempt to buy real property from the WPI Trust. During this time, Grimmer also drew up and had Ms. Inman sign documents regarding the real property and the trust litigation that benefitted Patterson. Ms. Inman claims Grimmer told her these documents would help end the litigation against Daralee, and did not explain how they might adversely effect her interests. Ms. Inman fired Grimmer in September 2017. Grimmer continued to represent Patterson in matters involving Ms. Inman.

The court found the arbitration provision enforceable

The provision clearly covered malpractice claims, and plainly listed the rights Ms. Inman relinquished when she signed the agreement. In the end, the law and rules of professional conduct permit attorneys to include arbitration provisions that encompass malpractice claims in their engagement agreements; Ms. Inman does not claim the arbitration provision is harmful to the public as whole; Grimmer had no duty under Utah law or rules of professional conduct to verbally explain the provision to her; and the provision as written was adequate to inform her of its scope and effect. Under these circumstances, Ms. Inman has not convinced us that Utah courts would invalidate the arbitration provision on public policy grounds.

(Mike Frisch)

April 26, 2021 in Clients | Permalink | Comments (0)

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)