At times, Plaintiffs may not be happy with the counsel they have hired. However, unless there is actual loss, there is nothing actionable in court. Power Gourmet Concepts Inc. v. Irwin & McKnight, Cv-09-1199, Oct. 1, 2010 (M.D. Pa. 2010) is case which shows this concept in action. In the case, the plaintiffs alleged professional negligence and breach of contract against I & M, the defendant attorneys. On May 9, 2005, the Plaintiffs were issued a certificate of judgment against a defendant in Ohio. The plaintiffs then sought to make the judgment effective in Pennsylvania, where the other people held property. To accomplish this domestication of judgment, the Plaintiffs hired I & M. The professional negligence allegation was based on delay by their attorneys in domesticating the judgment. They claimed that the Ohio defendant had assets in Pennsylvania which dissipated during the time they waited for I & M to domesticate judgment. The Plaintiffs also alleged there was a contract breach because of the delay, and that I & M was responsible for the additional legal fees incurred to remedy the malpractice. I & M made a motion for summary judgment, because they believed that even if the facts were decided in favor of the plaintiffs, there was still no case.
What constitutes legal malpractice? While this seems like a simple question, it is not always simple to define. This is especially true when a client requests one action, but an attorney does not follow such a request. At what point does a disagreement between a client and attorney grow into a legally actionable wrong. McLaughlin v. Manos, A-2638-09T1, 2011 WL 4345814 ( N.J. Super. App. Div. 2011) is a case which acts as a limitation upon legal malpractice.
As this blog has mentioned before, one of the key requirements of any legal malpractice action is harm. What this means to a client who has received deficient legal services is there may be nothing but a broken promise after these services. Legal malpractice actions are finely tuned which is very nicely demonstrated in LVI Environmental Services (LVI) v. Duane Morris LLP(DM), 004498 AprilTerm 2008, 2010 WL 3398702, 12 Pa. D & C 5th457 (Pa. Com. Pl. 2010).
In Tower Investments Inc. v. Rawle & Henderson LLP, 3291 MAYTERM 2007, 2008 WL 1923170 (Pa. Com. Pl. 2008), a Philadelphia court heard a complaint of legal malpractice alleged against attorneys hired by the insurance company to defend the policy holder. The trial court was considering whether or not the claims could move on to trial. Tower Investments alleged that as part of the settlement in the lawsuit, the attorneys for Rawle and Henderson executed a release contrary to the wishes of the plaintiffs. The plaintiffs brought 4 counts; professional negligence, breach of contract, breach of fiduciary duty, and punitive damages.
Estate of Spencer v. Gavin, 400 N.J. Super. 220 (N.J. App. Div. 2008) is a case in which the court characterized it as "a sad chronology of opportunism." The plaintiffs were beneficiaries of Madeline Spencer's estate. Madeline had retained Daniel Gavin to prepare her will, and directed her estate to retain him for any other legal matters in connection with her estate. In Madeline's will, the executor was her sister Kathryn. When Madeline passed away, Kathryn became executor, and then hired Gavin as her estate attorney. Gavin also borrowed money from Kathryn to build his law firm. His building housed another group of attorneys together known as Averna and Gardner P.C., as well as attorney Alberta Foster who were named as defendants. The main question in the lawsuit was whether knowledge of the wrongdoing by the other defendants subjected them to liability.
Legal malpractice is a difficult arena for plaintiffs. Much of the time, a case may turn on whether an expert opinion is needed or not. In other words; when is a legal decision susceptible to lay opinion, and when is a legal opinion so specialized that a legal expert is needed to evaluate the adequacy of counsel? In the case, of Szaferman, Lakind, Blumstein, Blader, & Lehmann P.C. v. Parise, A-1871-08T2, 2010 WL 624084 (N.J. Super. App. Div. 2010), the New Jersey Courts construe legal fees as an arena where expert opinion is needed, if the fee provides the basis of the suit. It is an important case because it adds and takes away from necessary pleadings in legal malpractice cases.
In legal malpractice cases, the issue of damages often arises. How much did an attorney's mistake cost, if anything at all? Usually, courts will base damages on a calculation of the mistake. However, at times conduct can become so outrageous that Courts will find grounds exist for a punitive fee to be appropriate. Theise v. Carroll, 2011 WL 1584448 (M.D. PA 2011) examines the Pennsylvania law on punitive damages.
As discussed previously on this blog, New Jersey law often precludes recovery by a non-client against an attorney. Aside from wills, courts have also created an exception when an attorney owed a duty to a non-client by virtue of being aware of something the non-client could not have found out. Davin, L.L.C. v. Daham v. Kress et al., 329 N.J. Super. 54 (NJ Super. App. 2000) is a case with a complex set of facts, and two legal malpractice actions. The attorneys being sued were Ahmad Daham's attorneys as well as the attorneys who represented Kress.