When does the statute of limitations start to run on a legal malpractice case in Pennsylvania.  Hinshwaw reports on this issue.

"The Pennsylvania Superior Court held that the statute of limitations for a legal malpractice claim begins to run when the malpractice is committed and is only tolled until the plaintiff should reasonably have found out about some degree of injury. The statute is not tolled until all of a plaintiff’s damages are clear or until appellate proceedings in the underlying case within the legal malpractice case are over.

Under the court’s application of the occurrence rule, the trigger for the accrual of a legal malpractice action is not the realization of actual or ultimate loss, but the occurrence of a breach of duty plus some degree of apparent harm. Thus, the court concluded that the statute of limitations for a breach of a contract claim starts when the duty is breached and is only tolled until the plaintiff should reasonably have found out about the injury. Otherwise put, and applying this reasoning to the instant matter, the court found that Wachovia or its predecessor in interest, Meridian, should have reasonably been aware of the alleged breach on or about October 20, 1994, the date Pisani initiated proceedings for liquidated damages (which, of course, had to be defended at considerable cost). Consequently, the present case was time-barred even though no final judgment determining the ultimate and actual loss had been determined before the statute began to run.

In coming to this conclusion, the court noted that its ruling may require an injured client to pursue two legal actions with competing interests at the same time—the appeal of the underlying case and the malpractice claim. The court concluded, however, that the overriding public policy concern is that stale claims not be filed. "

Here is a case from New Jersey which gives a full explanation of "judicial estoppel" and its application to legal malpractice.  Generally, the issue comes up when a client agrees to a settlement, which it later finds to be inadequate.  The legal malpractice case which follows is defended, in part, by the assertion that the client settled the case, said they were satisfied, and now change their mind.

"Judicial estoppel is an equitable doctrine that protects the integrity of the judicial process. Cummings v. Bahr, 295 N.J. Super. 374, 387 (App. Div. 1996). It "preclud[es] a party from asserting a position in a case that contradicts or is inconsistent with a position previously asserted by the party in the case or a related legal proceeding." Tamburelli Prop. Ass’n v. Borough of Cresskill, 308 N.J. Super. 326, 335 (App. Div. 1998) (citation omitted).

Judicial estoppel does not prevent litigants from pleading alternative positions; rather, it "is designed to prevent litigants from playing fast and loose with the courts." Newell v. Hudson, 376 N.J. Super. 29, 38 (App. Div. 2005) (citation omitted). "[A] party must successfully assert a position in order to be estopped from asserting a contrary position in future proceedings." Cummings, supra, 295 N.J. Super. at 386. Prior success does not necessarily mean that the party benefited from the position taken, but only that a court allowed them to maintain that position and relied on it to make a judicial determination. Id. at 387.

New Jersey "has a longstanding policy that encourages settlements." Ziegelheim v. Apollo, 128 N.J. 250, 263 (1992). However, our policy favoring settlements and the doctrine of judicial estoppel only bar a litigant from subsequently disputing the fairness and reasonableness of a settlement where the litigant was fully aware of all of the facts and was reasonably advised as to the legal remedies available based on those facts. Newell, supra, 376 N.J. Super. at 33; Puder v. Buechel, 183 N.J. 428, 437-39 (2005).

The motion judge relied on Newell to apply the doctrine of judicial estoppel in this case. The issue in Newell, was "whether a litigant who either lied, or later claimed she lied, about her understanding and voluntary acceptance of the terms of her property settlement agreement, in order to induce the court to accept and incorporate it into a judgment of divorce, is judicially estopped from asserting a [counter]claim for malpractice against her matrimonial attorney based on the settlement." Newell, supra, 376 N.J. Super. at 30. At the time of the divorce hearing, Hudson represented in court that she understood and voluntarily consented to the terms of the property settlement agreement. Id. at 32. Based upon this testimony, the judge approved the settlement and incorporated the agreement into the judgment of divorce. Ibid.

Thereafter, the wife sought a modification of the alimony amount, claiming that her former husband’s salary was misstated in the agreement as a result of her attorney’s negligence and, as a consequence, she received an insufficient alimony award. Id. at 32-33. That motion was denied by the Family Part judge. Id. at 33.

Hudson failed to pay the divorce attorney’s fee and a collection suit was instituted against Hudson. Ibid. Hudson counterclaimed alleging malpractice. Id. at 33-34. In responding to questions posed at her deposition, Hudson essentially testified that her sworn testimony to the judge hearing the divorce proceeding was false. Id. at 34. The attorneys then filed a motion for summary judgment. Ibid. In dismissing the malpractice action on the basis of judicial estoppel, the motion judge found that the wife was not misled by her attorney because she testified under oath that she knew what she was doing. Id. at 36. The judge also stressed that the wife, who was an accountant, although not tutored in the law, was nevertheless a sophisticated individual who had received sufficient factual information to inform her decision regarding the settlement. Id. at 35-36.

In reviewing the grant of summary judgment, we noted that the Ziegelheim and Puder

courts recognized legal malpractice as a viable cause of action where a matrimonial attorney’s negligent pretrial preparation and advice led to the recommendation of an improper settlement. By declining to apply a per se bar, these cases preserve a malpractice claim of a vulnerable litigant who unknowingly enters into an inadequate settlement, believing it is fair, as a result of the arguable negligence of her matrimonial attorney. 

We agreed that a legal malpractice action was reserved for "vulnerable litigant[s] who unknowingly enter[] into an inadequate settlement, believing it is fair, as a result of the arguable negligence of [their] . . . attorney." Ibid. Further, we adopted the position of the Idaho Supreme Court, stating that judicial estoppel

should only be applied when the party maintaining the inconsistent position did have, or was chargeable with, full knowledge of the attendant facts prior to adopting the initial position. . . . [T]he concept of judicial estoppel takes into account not only what a party states under oath in open court, but also what that party knew, or should have known, at the time the original position was adopted. [Ibid. (quoting McKay v. Owens, 937 P.2d 1222 (1997)).]

Failure to diagnose breast cancer…it’s a horrible thing.  When we think of a family member who could have been saved, who dies because of medical negligence, where a simple mammogram or simply reading it correctly could have made a difference…

Here, after a death, the medical malpractice case was bungled, and a legal malpractice case finally led to a verdict against the attorney who didn’t sue the doctor.

"A Hinds County jury returned a $375,000 judgment Tuesday in a legal malpractice case.
Varnado and attorney Robin Blair, also of Hattiesburg, represented the sister of a Sunflower County woman who died of breast cancer in 1999.

The woman filed a lawsuit against Jackson lawyer Isaac Byrd Jr. and his firm and lawyer Howard Bowen, who initially handled the case.

Barbara Butler said in the lawsuit heard in Hinds County Circuit Court that her sister, Jacqueline Farmer, 59, died in June 1999 after not getting a mammogram in eight years despite going to her regular physician during a portion of that time.

Butler initially went to Bowen to have a lawsuit filed against the doctor, who worked at a clinic in Indianola. Bowen turned the case over to Byrd in October 1999, according to Blair.

Blair said Byrd requested and received Farmer’s medical records but didn’t file the lawsuit until 2001, a year after the statute of limitations to file such a lawsuit expired.

But Byrd’s attorney, Felecia Perkins of Jackson, said the medical malpractice lawsuit was filed in Sunflower County and the presiding judge never ruled the statute of limitations had expired prior to the case" being filed.

Today, we reach 1500 articles on Legal Malpractice.

We would like to thank our readers for persevering with us through server breakdowns, slow story days, and our exploration of the legal malpractice world.

Experts are generally, but not always necessary in legal malpractice cases.  The test is whether a fact-finder can rely upon its own knowledge.  Here is an interesting case, Frances Northrop, respondent, v Eric Ole Thorsen, appellant. (Index No. 5684/04) ,2007-00973 ,
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT ,
2007 NY Slip Op 10124; 2007 N.Y. App. Div. LEXIS 12903 , decided 12/18/07.

"In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney’s breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages. To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence. Expert testimony is normally needed to establish that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, unless the ordinary experience of the fact-finder provides sufficient basis for judging the adequacy of the professional service, or the attorney’s conduct falls below any standard of due care."

The case is interesting for two other points:  plaintiff won even after being precluded from using expert testimony; and plaintiff avoided a "mitigatino of damages" defense. "In support of his affirmative defense that the plaintiff failed to mitigate her damages, the defendant contends that the plaintiff herself could have avoided termination of her workers’ compensation benefits by making an application for nunc pro tunc judicial approval of the settlement. HN3The defendant, however, "may not shift to the client the legal responsibility [he] was specifically hired to undertake because of [his] superior knowledge"

RECENT CASES IN LEGAL MALPRACTICE

1. CHICAGO TITLE INSURANCE COMPANY, Plaintiff, v BARBARA J. MAZULA, Defendant and Third-Party Plaintiff-Appellant; JAMES E. KEABLE, Third-Party Defendant-Respondent.

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT

2008 NY Slip Op 27
January 3, 2008

This is a case in which the question becomes whether an individual or an estate hired the attorney. In order for plaintiff to prevail, the court must determine that the estate hired the attorney, and each of the mistakes took place while the attorney represented the estate, not the individual.

“ Defendant argues that the toll applies because the sale of the property was not an isolated transaction, but an estate matter during which Keable continued [**4] to represent defendant’s husband’s estate long after the malpractice accrued. We disagree. The first deed attempted to convey what was believed to be the estate’s interest in the property whereas the second deed conveyed defendant’s personal interest. Regardless of how the first deed was executed, defendant, as a surviving tenant by the entirety, solely conveyed her personal interest (see Matter of Mischler, 30 AD3d 859, 860, 819 N.Y.S.2d 118 [2006]). Hence, as to both deeds, Supreme Court correctly determined that Keable was always acting for defendant in her individual capacity, not in her capacity as the executor of her husband’s estate 2. Since Keable performed no further work for [*3] defendant, either personally or in her capacity as executor of the estate after January 2000 in regard to this transaction, the commencement of this third-party action for legal malpractice was not timely.”

2. Gerald Goldman, et al., Plaintiffs-Appellants, v Akin Gump Strauss Hauer & Feld, LLP, et al., Defendants-Respondents.

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
2007 NY Slip Op 10492
December 27, 2007

In many legal malpractice cases, we find that the attorneys played several roles. Sometimes, they start as transactional attorneys, and morph into litigation attorneys.

Here the “documentary evidence [that] effectively precludes plaintiffs from arguing that defendants’ representation in the arbitrations was continuous with their representation in the sale. Such documentary evidence consists of the affidavit submitted by plaintiffs in a prior litigation that involved an unsuccessful attempt by a limited partner to disqualify defendants from representing plaintiffs in one of the arbitrations. Therein, one of the plaintiffs stated that while defendants were retained to advise plaintiffs and, if need be, serve as their litigation counsel, in connection with litigation then being threatened by the limited partners, as to the sale itself, defendants were retained only to draw the documents necessary to consummate a deal that had already been negotiated and agreed to. Holding plaintiffs to this position (see D & L Holdings v Goldman Co., 287 AD2d 65, 71-72, 734 N.Y.S.2d 25 [2001], lv denied 97 NY2d 611, 742 N.Y.S.2d 604, 769 N.E.2d 351 [2002]), defendants’ [**3] representation in the arbitrations, which involved the merits of the litigation that was being threatened by the limited partners at the time plaintiffs retained [*2] defendants, was distinct from their representation in "papering" the sale, which did not involve negotiating the terms of the sale or advising whether or not to proceed with it.”

Attorneys and clients enter into contingent fee retainer agreements, which do not directly address the question of an appeal.  Is the legal fee for an appeal the responsibility of the client or the attorney in this situation?  Here is a case from Madison/St.Clair which discusses this question:

"A legal malpractice claim filed by Donel Johnson claims Belleville attorneys Jodee Favre and Laura Allen breached their fiduciary duty and appropriated fees greater than they were entitled to in a wrongful termination claim he filed in 1998.

According to Johnson’s suit filed in St. Clair County Circuit Court on Dec. 21, 2007, he entered into a contingency fee agreement with Favre and Allen on April 9, 1998.

Johnson, a tank washer with Rogers Cartage Co., was fired in 1998 after he refused to dump chloronitrobenzene into the sewer, the suit claims. In 2001, a St. Clair County jury awarded Johnson $2.13 million plus costs. Defendants Rogers and Tankstar appealed, and in 2002, a settlement was reached in which Johnson would receive $800,000 in cash and an annuity at a cost and present value of $439,022.

Johnson claims he was damaged in that his annuity is owned by his former employer and it does not guarantee payment to him and his heirs.

"Plaintiff has been further damaged in that Plaintiff paid Defendants in excess of $334,000 more than they were entitled to pursuant to their fee agreement with Plaintiff," the complaint states.

Johnson also claims that his contract with Favre and Allen entitled them to one-third of any sum he recovered.

"Because this agreement did not specifically exclude the handling of an appeal, Defendants Favre and Allen were deemed to have agreed to include any and all appellate work regarding Plaintiff’s claim," the complaint states. "

It’s winter, and our thoughts turn to the Caribbean.  Here, a Philadelphia law firm, 1400 lawyers strong, gave commercial advice pertaining to the Cuban embargo, and are now defendants in a legal malpractice case.  Here is the story from Bloomberg, via the Caribbean news agency.

"NEW YORK, USA (Bloomberg): Morgan, Lewis & Bockius, the largest Philadelphia-based law firm with 1,400 attorneys, gave advice regarding sales to Cuba under the US trade embargo that led to a criminal investigation, a lawyer for an ex-client has argued.

Dan and Stefan Brodie, the founders of Purolite Corp., a manufacturer of specialty resins for water purifiers based outside Philadelphia, sued Morgan Lewis in 2004 for legal malpractice. The case began in the early nineties when an accountant questioned a sale by Purolite’s Canadian subsidiary to a company in Cuba. Purolite claims Morgan Lewis attorneys repeatedly advised them that the sales were legal because there was no US involvement.

"Morgan Lewis’s malpractice, sloppy work and their bad advice cost Purolite and the Brodies and it cost them severely," said Marc Kasowitz, a lawyer for the brothers, in opening arguments on Friday in state court in Philadelphia.

In 1996, the US Customs Service began an investigation into Purolite’s sales to Cuba. Morgan Lewis told the inspectors that the company’s foreign subsidiaries were separately owned and advised the Brodies to continue doing deals with the Cuban company, leading to a criminal indictment by the US Attorney’s office in Philadelphia, Kasowitz said.

In 2002, the Brodies were convicted of making illegal trades to Cuba, a verdict that was later reversed on appeal. The Brodies and Purolite pleaded guilty to charges concerning reimbursement of travel expenses, the company said in court filings.

A lawyer for Morgan Lewis said the firm advised the company not to sell to Cuba and that Purolite continued to do so because they wanted the money. "