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Showing 26 posts in Legal Malpractice.

Trial Court's Error In Underlying Case Was Superseding Cause Of Plaintiffs' Claimed Damages

Whether the trial court erred in the underlying litigation is always an important part of the proximate (or "but for") causation analysis. Stanfield v. Neubaum, 2016 WL 3536865 (Tex. June 24, 2016) is yet another case that supports the proposition that an intervening cause, such as the retention of successor counsel when a client's claim is still viable or a trial court's error, relieves the attorney of liability. More ›

Is the American Rule dead in New Jersey?

Ok, so maybe "dead" is a bit hyperbolic, but the New Jersey Supreme Court's decision in Innes v. Marzano-Lesnevich, No. 074291, ___ N.J. _____ (N.J. Apr. 26, 2016) has raised serious questions about just how far the New Jersey Court may be willing to bend the American Rule that litigants must bear the cost of their own attorneys' fees.   More ›

Trees Grow Back — Paper your File

Papering your file (or PDFing an electronic file) is an important, if underappreciated, method to protect both you and your clients. Regular memos to a file will help cut down time necessary to analyze a new development in your case, ensure a colleague can take over a file if something happens to you, and could protect you against a malpractice claim in the future.  More ›

Mistakes Happen — How to Respond when they Do

Attorneys are human. They make mistakes. However, how an attorney responds to a mistake may be more important than the mistake itself.  In the face of potential civil liability, sanctions or disciplinary proceedings, care must be taken. More ›

Illinois Appellate Court Reinforces Rule Providing Immunity to Attorneys for Errors in Judgment

Judgmental immunity is alive and well in Illinois. More ›

Avoiding the Upsurge in Trust, Probate and Estate Planning Malpractice

The number of lawsuits against trust, probate and estate planning attorneys has significantly increased over the last several years. Today, trust, probate and estate planing attorneys are charged with legal malpractice and breach of fiduciary duties more than any other single practice area, according to a recent survey of the largest professional liability insurers in the country.   More ›

Only Current Shareholder can Bring Derivative Legal Malpractice Claim Against Counsel for the Corporation

BoardroomThis Illinois Supreme Court in September 2015 held that to bring a derivative legal malpractice claim against counsel for a corporation, the plaintiff must have been a shareholder at time of the alleged negligence, and he or she must maintain his or her status as a shareholder throughout the entire pendency of the action. Stevens v. McGuireWoods LLP, 2015 IL 118652. The court noted that even assuming plaintiffs were successful, they could not have collected personally on any judgment entered against corporate counsel on derivative claims because at the time they filed the legal malpractice action against the defendant law firm, plaintiffs had relinquished any and all ownership in company. Therefore, the defendant law firm's alleged failure to assert contested claims against corporate counsel in a timely manner caused no injury to plaintiffs in their individual capacities. The court reaffirmed the well-established principle that a legal malpractice plaintiff must have suffered "actual damages." See also Eastman v. Messner, 188 Ill.2d 404, 721 N.E.2d 1154 (1999).

The Stevens court did not, however, address the attorney-client privilege issues which will surely surface in derivative claims, such as where the corporation (through its current management or "control group" refuse to waive the attorney-client privilege).

Arizona's Mediation Process Privilege Bars Malpractice Allegations

In its September 22, 2015 opinion in Grubaugh v. Blomo ex rel. Cnty. of Maricopa, No. 1 CA-SA 15-0012, 2015 WL 5562347, the Court of Appeals of Arizona held that the state’s mediation process privilege was not waived when plaintiff sued her attorney for malpractice arising out of alleged substandard advice given during a family court mediation. In addition, the court held that any of plaintiff’s allegations that were dependent upon privileged information should be stricken from the complaint. This case follows a number of others across the country that have been criticized for insulating attorneys from liability for their actions during the course of mediation. More ›

Advice Leading to Criminal Prosecution not the Cause of the Plaintiff's Injury

In a legal malpractice case, Kumaraperu v. Feldsted (2015) 237 Cal.App.4th 60, 187 Cal.Rptr. 3d 583, a California intermediate appellate court held that a client’s criminal forgery prosecution allegedly resulting from negligent legal advice was not reasonably foreseeable. Therefore, the Attorneys' advice could not be the proximate cause of the client's injury.

In Kumaraperu, the Plaintiff alleged her Attorneys negligently advised her to draw a check on an account she owned, but on which she was not a signatory, and to deposit the funds into another account, thereby exposing her to criminal forgery prosecution.  More ›

Court Holds that Transactional Lawyers have a Duty to Volunteer Proactive Advice

In Peterson v Katten Muchin Rosenman, LLP, 2015 WL 4092323 (7th Cir. July 7, 2015) the Seventh Circuit Court of Appeals reversed the dismissal of a legal malpractice case brought by a bankruptcy trustee. Rejecting what has sometimes been referred to as the "limited engagement defense", the Court held the firm had an affirmative duty to advise on the risks of entering a purportedly securitized factoring relationship without sufficient security agreements to both verify and collect against the underlying collateral.   More ›