Imagine your parent passes away, and you are an inheritor under the will. There is one problem, the attorney who drafted your parent's will did something wrong. Can you recover for their malpractice in Pennsylvania? This is the situation encountered in Hess v. Fox Rothschild, LLP, 925 A.2d 798 (Pa. Super. 2007). There are two major points the case provides. The first point is more of a procedural matter stating that when you appeal a judgment, the statement for matters complained of on appeal must be reasonably specific or the matters will be considered waived, and appeal denied. The attorney malpractice point which is important is that there are certain situations where a third party who does not have an attorney-client relationship may recover in a will situation.
In legal malpractice cases, plaintiffs often use the "case-within-a-case" method to prove their claims. This theory requires a plaintiff to show they would have been successful in the underlying action if not for the attorney's negligence. For many years in New Jersey, courts viewed it as the sole method for proving legal malpractice. In Garcia v. Kozlov, Seaton, Romanini & Brooks, P.C., 179 N.J. 343 (N.J. 2004), the court recognized that "case-within-a-case" is not the exclusive avenue for proving legal malpractice cases. It is one of several methods.
Given this month's column involves a Pennsylvania and New Jersey case involving damages awards, this is a good opportunity to discuss the role damages play in malpractice actions. Gravers v. Lanfrit, A-3205-10T1, 2012 WL 331763 (N.J. Super. App. Ct. 2012), is a good example of the roles damages play in New Jersey cases. The most important point that can be gleaned from the above case is that if damages are initially too speculative, a Judge may declare the damages claimed too speculative, and require a plaintiff to pinpoint a more exact number.
In reading The Legal's reporting in First Judicial District of Pennsylvania v. Rotwitt, et al., Phila. C.P. October term; 2011, No. 4286, it appears plaintiff-FJD additionally seeks attorney's fees secondary to its legal malpractice claim arising from the Philadelphia family court construction project litigation. Said differently, as reported, this, in part, legal malpractice action seeks its related attorney's fees: both regarding incurred by FJD in the underlying action as well as to be incurred in prosecuting this action.
Taffaro v. Connell (A-4928-09T2, 2011 WL 4502077 (N.J. Super. App. Div. 2011) is a case involving a family member who felt spurned, and a will. The case further outlines the attorney-client relationship, and what will suffice to provide the basis for a legal malpractice claim.
Goodwin v. Donahue Hagan Klein Newsome & O'Donnell (A-3476-10T2, 2011 WL 6845888 (N.J. Super. App. Div. 2011)) is a super settlement case. It is a New Jersey case which aims to set the boundaries of what sort of actions rise to the level of legal malpractice. The attorney relationship revolves around a divorce action filed by the plaintiff Matthew Goodwin against the defendant Edward O'Donnell, a member of the firm named in the case.
Tietjen v. Mazawey is a key New Jersey case in reminding legal malpractice practitioners that expert truly means expert. It is not enough to simply have another attorney certify that an attorney's conduct deviated from the typical standards of care. What is necessary from the expert is a detailed report, which supports the expert's conclusion.
"An attorney who commits malpractice is liable to his client for any reasonably foreseeable loss caused by his negligence including emotional distress resulting from the loss of liberty."
In Atkinson v. Haug, it was shown that an attorney's firm can only be held liable under a theory of vicarious liability if the Defendant Attorney was shown to be acting within the scope of his employment or with apparent authority from that firm. The mere fact that the defendant, Daniel M. Haug happened to be a lawyer did not necessarily mean that everything he said was "legal advice." Since there was no evidence that Haug was acting within the scope of his employment at his law firm John T. Acton, P.C ("Acton"), vicarious liability did not exist.
"In her relationship with HSBC, Doyle essentially abdicated her professional judgment to a black box." This line came from Circuit Judge Fuentes and summarizes not only this case, but the large scale Mortgage Fraud that has run rampant in our ...