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Improper Assurances May Mean Malpractice

"The lawyer can thus properly be classified with members of various other professions who are considered to possess knowledge, skill or even intelligence superior to that of an ordinary man and are, as a consequence, held to a higher minimum standard of conduct."Gorski v. Smith, 812 A. 2d 683, 701 (Pa.Super 2002). Though this statement is sure to make any attorney proud, it is also comes laden with a hidden message: that with that great intelligence comes great responsibility. When an attorney gives a client assurance that everything is going fine, especially if the attorney says it multiple times but then turns out to be dead wrong, that attorney is likely looking at a malpractice case. 

Whether it is based in tort law or contract law, an attorney's assurances are often actionable if they not only turn out to be false but result in harm to the client.

Legal malpractice is often compared to medical malpractice, which should not come as a surprise to many. Both professions require a great amount of preparation, research and inherent skill, and neither is for the faint of heart. In either practice, a mistake can be ruinous for the client/patient. While medical malpractice can result in extreme physical harm, legal malpractice can result in the equivalent financial harm and some may make some very close comparisons between those two harms.

The first type of legal malpractice where an attorney can be sued for an assurance is based in tort law. It should come as no surprise that the reasoning for this type of suit is largely based on medical malpractice case law. For this type of cases, the big question that is usually at issue is not necessarily whether there was malpractice per se, but when said malpractice occurred and if the statute of limitations on the malpractice was tolled or not. This question is usually defined as a court using either the Occurrence rule or Discovery Rule.

The Occurrence Rule is defined by the notion that "the trigger for the accrual of a legal malpractice action is not the realization of actual loss, but the occurrence of a breach of duty". Wachovia Bank, M.A. v. Ferretti, 935 A.2d 565, 572 (Pa. Super. Ct. 2007). Under the occurrence rule, "the statutory period commences upon the happening of the alleged breach of duty." Id. at 572 (quoting Robbins & Seventko Orthopedic Surgeons, Inc. v. Geisenberger, 674 A.2d 244, 246-47 (Pa. Super. Ct. 1996)). This is the standard rule that courts follow and typically results in the case being dismissed because the statute of limitations has already ran.

The Discovery Rule is used "where a plaintiff could not reasonably have discovered his injury or its cause [and] Pennsylvania courts have applied the discovery rule to toll the statute of limitations. Wachovia, 935 A.2d at 572-74 (citing Pocono Int'l Raceway v. Pocono Produce, Inc., 468 A.2d 468, 471 (Pa. 1983)). The discovery rule is typically applied when the application of the Occurrence Rule would be too harsh. Taylor v. Tukanowicz, 435 A.2d 181, 183 (Pa. Super. Ct. 1981).

The typical medical malpractice case that is used to apply these two rules is the case when a surgeon leaves a sponge in the patient. Based on the Occurrence Rule, the statute of Limitations would start to run the second the surgery was over. It does not matter if the patient did not notice the sponge until three years later only that once the two year statute of limitation had run, the patient would no longer have the right to sue.

The Discovery Rule was created with this particular purpose in mind, that the statute of limitations would be tolled until the patient could have known or reasonably should have known about the sponge. Since a patient cannot realistically open himself up to check if anything was left there, he could not discover it until he went for an invasive procedure or learned through some other manner of the sponge's presence.

Soon this type of reasoning was applied to other types of cases and most recently, was applied in Knopick v. Connelly, a legal malpractice case where the injury inflicted stemmed from the client relying on his attorney's assurances. - F.3d --, 2011 WL 1379517, C.A.3 (Pa.), 2011. This case was a divorce settlement gone awry.

Nicholas Knopick sued John Connelly, Jr., Esquire, Susan M. Kadel, Esquire, and their law firm James, Smith, Durkin & Connelly, L.L.P for the incredibly poor job the firm did in advocating for him against his wife in a divorce settlement. To summarize, they originally had a list of 4 witnesses, all of whom Mr. Knopick had discussed could be useful to his case but the attorney who put on his case at a hearing on August 2, 2004, Susan Kadel, did not call any of the witnesses to testify on behalf of Knopick. Only Knopick testified on his own behalf.

After the hearing, Knopick had been told everything had gone well. The other attorneys did not tell him that there could be any issues with only him defending himself, nor did they tell him that there was a distinct chance that he would lose, only that the hearing "was not a big deal and that any competent attorney could handle it." Over the next few months, they told him that "there was nothing to worry about, and assured him that the hearing had gone well." Inevitably, on July 7, 2005 he lost the hearing and was told that an appeal was in the works. Shortly after that, the Connelly firm was discharged, primarily because of how they handled the custody aspect of the case.

The crux of the Connelly argument was that, based on the Occurrence Rule, Knopick had known or should have known that he had been injured by his attorney's malpractice. The timing of Mr. Knopick's suit brought against the Connelly firm was such that this would have placed Knopick's suit outside the statute of limitations.

Mr. Knopick argued that the Discovery Rule should have applied because he was unaware of the malpractice until July 7, 2005 when he was put on notice that he had lost the hearing. Based on that rule he had no reason to know that he had incurred any injury until he was made aware that he lost his hearing.

The argument truly comes down to not how poorly the Connelly firm represented him, this no one would doubt, but rather whether the firm's assurances, that everything would be fine and that the hearing was not a big deal were enough to make Knopick comfortable at the hearing so that he was unaware anything was wrong until the judge's order. It truly comes down to when "reasonable minds would not differ in finding that a party knew or should have known on the exercise of reasonable diligence of his injury and its cause" Fine v. Checcio, 870 A.2d 850, 861 (PA 2005). Knopeck stated that he "relaxed his vigilance" because of his attorney's assurances.

The question that a jury must now decide in this case is whether they assurances from the attorneys was enough that a reasonable person would have "relaxed his vigilance" or if the writing was on the wall at the hearing. The attorney's assurances are what the judge questioned in this case and it is those assurances that can an attorney into trouble not just in a matter of tort, as in this case, but in a breach of contract case as well.

In Gorski v. Smith, there were many issues but a couple are particularly relevant to when assurances can result legal malpractice. 812 A. 2d 683 (Pa.Super 2002). This case involved a real estate deal that ran afoul because of failed approval from the Township because of problems deriving from a failed sewer pumping facility. Ceasar Gorski, the real estate developer and his wife sued their attorney for malpractice because they wanted the ability to walk away from the contract if they had any issues with the approval process. However, not only did their late attorney Raymond Jenkins fail to write this clause into the contract, he then went on draft the contract in such a way that Gorskis were the ones that had to perform in the case that the process had any issues. Further, after drafting this contract, Jenkins assured his clients that he had drafted it just as they wanted and failed to disclose to them any potential issues arising from the contract or that they would be on the hook for this particular issue.

The standard the court applied that "a breach of contract claim may properly be premised on an attorney's failure to fulfill his or her contractual duty to provide the agreed upon legal services in a manner consistent with the profession at large". Gorsky, 812 A. 2d at 694. This standard is what the court stated was the modern standard but even under the previous standard, that the must show that the attorney failed to follow a specific instruction of the client would also have been breached.

While this case seems a cut and dry case of legal malpractice, the attorney made the argument, and the jury found that the client was contributorily negligent and under Pennsylvania rules this should be a complete bar to any monetary recovery. However, the judge stated a few caveats based on the rules of other states that allowed for a judgment notwithstanding the verdict:

  • - A client cannot be deemed contributorily negligent for failing to anticipate or guard against his or her attorney's negligence in the performance of legal services within the scope of the attorney's representation of the client.
  • - A client cannot be contributorily negligent as a matter of law for relying on a lawyer's erroneous legal advice or for failing to correct errors of the lawyer which involve professional expertise.
  • - Further as long as the client does not withhold or misrepresent information or disregard the legal advice which the attorney provided by the attorney, they cannot be contributorily negligent.
  • - Finally, if an attorney is hired by the client to perform a specific legal service, it is a "justifiable expectation" that the attorney will reasonably perform those services.

So while there is a strict contributorily negligent rule in Pennsylvania, the judge in this case saw fit to carve out some large exceptions in an attempt to skirt such an onerous rule.

It is certainly clear in the Gorski case that when an attorney told to write something in the contract, and he writes the exact opposite but assures his client that he did as was instructed, this type of assurance is clearly actionable. However, it is not clear in theKnopick case if the assurances given by the attorneys are actionable or if it should have been obvious that that even with the attorneys saying everything will be fine, that they clearly had done a horrible job at the hearing. What is clear from both is that no matter what type of law an attorney practices, you must be incredibly careful what type of assurances you give your client, especially when you lose.

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