Photo of Lawyers for the Profession® Terrence P. McAvoy
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Terrence McAvoy has more than 30 years of civil litigation practice experience in state and federal court, concentrating in the defense of …

Showing 9 posts by Terrence P. McAvoy.

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 ›

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).

California Weighs In on In-Firm Privilege

Shhhh -- it's privilegedIn Palmer v. Superior Court, ___ Cal.Rptr.3d ___, 2014 WL 6662053 (2014), a California appellate court upheld the in-house attorney-client privilege. The court noted recent cases which have addressed what have been called the “fiduciary” and the “current client” exceptions. Generally, courts have used both terms to describe the exception to the privilege. The premise underlying both terms is that a law firm cannot assert the attorney-client privilege against a current client when the firm's self-representation creates a conflict of interest with that client, or otherwise breaches the firm's duties to the client. More ›

LFP Alert — Under Dual Representation Doctrine, Attorney-Client Privilege Generally Does Not Apply to Communications Related to Matters on Which the Attorney Represents Both Clients

Bill Daily and Cardiothoracic Surgery Associates v. Greensfelder, Hemker & Gale, P.C., 2014 IL App (5th) 130273-U.

An Illinois appellate court found that the dual representation doctrine (or the common representation exception to the attorney-client privilege) applied with respect to the production of a law firm's file. More ›

LFP Alert — Illinois Supreme Court Addresses Calculation of Damages in Legal Malpractice Action

Goldfine v. Barack, Ferrazzano, Kirschbaum & Perlman, 2014 IL 116362, ___ N.E.3d ___, 2014 WL 4923213

The Illinois Supreme Court addressed the proper calculation of damages in a legal malpractice action arising out of defendants' failure to preserve plaintiffs' Illinois Securities Law cause of action against an investment firm. More ›

LFP Alert — Plaintiff's Failure to have Expert Define the Standard of Care was Fatal to Claim

In Jing Hong Song v. Collins, ___ A.3d ___, 2014 WL 3919754 (Conn. 2014), the appellate court affirmed a jury verdict in favor of the defendant in a legal malpractice action on the basis that the plaintiff failed to establish the applicable standard of care, either directly or indirectly, through the testimony of the experts in the case. More ›

LFP Alert — Insurer Ordered to Produce Communications With its Counsel Regarding Settlement of Bad Faith Claim, Which Led to Legal Malpractice Action Against Defense Counsel

Imperial Fire & Cas. Ins. Co. v. Warman, U.S. Dist Ct., N.D.Okla., 2014 WL 3671327 (2014)

In a legal malpractice action filed by an insurer against defense counsel it retained to defend an underlying auto accident case, which then led to a bad faith claim against the insurer which was settled, the district court ordered the insurer to produce all communications with its attorneys regarding the bad faith case, finding that the insurer placed such communications at issue by suing defense counsel for malpractice.  More ›

LFP Alert — California Court Awards Attorneys' Fees in Legal Malpractice Case Based on Rates that Exceeded the Actual Amounts Billed

Syers Properties III, Inc. v. Rankin, ___ Cal.Rptr.3d ___, 2014 WL 2192362 (Cal.App. 1st Dist.) 

After the trial court granted the defendants' nonsuit motion, the court awarded the defendants' attorneys' fees. The court allowed the calculation of reasonable hourly rates to be based on the Laffey Matrix, which amounted to higher billable rates than defense counsel's actual billable rates. On appeal, the court upheld the trial court's award of attorneys' fees and rejected the plaintiff's argument that the actual rates billed by defense counsel represented the maximum reasonable hourly rate. More ›

LFP Alert – Unfinished Business Doctrine no Longer Applicable to New York Law Firms

Matter of Thelen, No. 136; Matter of Coudert Brothers LLP, No. 137 (July 1, 2014) 

In a unanimous decision, the New York Court of Appeals held that hourly fees earned on client matters after attorneys switch firms are not the "property" of their old partnerships — a landmark holding that makes the "unfinished business" doctrine inapplicable to lawyers and their clients. More ›

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