Appellate malpractice.I. INTRODUCTION
Legal malpractice A lawyer is obligated to comply with a code of ethics that is adopted by the state in which the lawyer practices. These rules, typically known as the Model Rules of Ethics, or Ethical Rules, address a lawyer's conduct in various situations. is defined in terms of negligence, although a suit for breach of contract is recognized as an alternative action in some states. (1) Lawsuits against trial attorneys for negligence are "governed by the same principles" that apply in other actions for negligence. (2) Similarly, appellate Relating to appeals; reviews by superior courts of decisions of inferior courts or administrative agencies and other proceedings. malpractice malpractice, failure to provide professional services with the skill usually exhibited by responsible and careful members of the profession, resulting in injury, loss, or damage to the party contracting those services. is also based on negligence. It arises when a lawyer fails to exercise a reasonable degree of skill and care in the appeal of a client's case, causing injury to the client. Because the prospects for success on appeal may be damaged by both trial and appellate lawyers, both may be subject to malpractice claims pertaining per·tain
intr.v. per·tained, per·tain·ing, per·tains
1. To have reference; relate: evidence that pertains to the accident.
2. to issues of appellate review.
For the trial lawyer, an appellate-related malpractice claim may arise from such errors or omissions as failure to preserve the record for appeal; advising a client against taking an appeal when it is warranted; or failing to timely file or perfect an appeal when an appeal was the agreed upon Adj. 1. agreed upon - constituted or contracted by stipulation or agreement; "stipulatory obligations"
noncontroversial, uncontroversial - not likely to arouse controversy course of action. For the appellate lawyer, a claim may arise from mistakes made in handling any aspect of the appeal itself.
In considering an action against a trial attorney or appellate counsel, malpractice is not limited to litigation An action brought in court to enforce a particular right. The act or process of bringing a lawsuit in and of itself; a judicial contest; any dispute.
When a person begins a civil lawsuit, the person enters into a process called litigation. issues. Attorney malpractice can and often does arise in transactional work as well. "[R]edressable harm ... need not depend upon the outcome of any litigation because the negligent negligent adj., adv. careless in not fulfilling responsibility. (See: negligence) preparation of [a written instrument] could potentially be the cause of the financial loss that the [clients] incurred in reforming the [instrument]." (3) Malpractice may also arise from negligent acts or omissions in negotiations surrounding litigation. (4)
II. STANDARD OF CARE
Legal malpractice claims may arise from a lawyer's failure to exercise a reasonable standard of care in representing a client. The standard of care that applies to appellate malpractice is the degree of care and skill that a reasonable appellate lawyer from the same community would exercise in handling the same type of appeal, under the same rules, laws, and set of facts. (5) Reasonableness should be measured at the time representation was rendered, especially with regard to liability for decisions of then novel or untested legal theories. (6) "The general rule is that an attorney may be held liable for ignorance of the rules of practice, failure to comply with conditions precedent to suit, or for his neglect to prosecute or defend an action." (7)
"An attorney is never bound to exercise extraordinary diligence, or act beyond the knowledge, skill, and ability ordinarily possessed by members of the legal profession." (8) But as specialization increases in the legal field, an attorney who holds him or herself out to be a specialist must "exercise the degree of skill and knowledge possessed by those attorneys who practice in that specialty." (9)
III. ELEMENTS OF APPELLATE MALPRACTICE
The elements of legal malpractice pertaining to appellate review are the same as for other claims of attorney negligence. To prevail in an appellate malpractice action, a plaintiff must show 1) that the lawyer had a duty to the client based Refers to hardware or software that runs in the user's machine. See client and client download. Contrast with server based. on the existence of the attorney-client relationship; 2) that the lawyer breached the duty by negligent act or omission; 3) that the lawyer's breach of duty was the proximate cause An act from which an injury results as a natural, direct, uninterrupted consequence and without which the injury would not have occurred.
Proximate cause is the primary cause of an injury. of the plaintiff's injury; and 4) that the plaintiff suffered a legally cognizable The adjective "cognizable" has two distinct (and unrelated) applications within the field of law. A cognizable claim or controversy is one that meets the basic criteria of viability for being tried or adjudicated before a particular tribunal. injury. (10)
A. Proof of Duty
The existence of a bona fide [Latin, In good faith.] Honest; genuine; actual; authentic; acting without the intention of defrauding.
A bona fide purchaser is one who purchases property for a valuable consideration that is inducement for entering into a contract and without suspicion of being lawyer-client relationship is generally accepted as confirmation that the lawyer has a duty to the client. (11) As a result, the first element of an appellate malpractice case is often the easiest one for a plaintiff to prove. Occasionally, courts have been willing to find a duty owed to a non-client when that party is an intended third party beneficiary A third party beneficiary, in the law of contracts, is a person who may have the right to sue on a contract, despite not having originally been a party to the contract. This right arises where the third party is the intended beneficiary of the contract, as opposed to an incidental of an attorney-client relationship. (12) However, the courts that have recognized such limited liability to a non-client have consistently held that legal malpractice claims are not assignable because of the personal and confidential nature of the attorney-client relationship. (13)
B. Proof of Negligence
Proving breach of duty, however, is often more difficult. The courts generally require the plaintiff to present expert testimony Testimony about a scientific, technical, or professional issue given by a person qualified to testify because of familiarity with the subject or special training in the field. to prove breach of duty unless the reason for the breach is so obvious that it is within the average juror's competence to decide if the conduct was unreasonable. (14) For example, obvious errors, such as failing to file a suit within the time allowed by the statute of limitations A type of federal or state law that restricts the time within which legal proceedings may be brought.
Statutes of limitations, which date back to early Roman Law, are a fundamental part of European and U.S. law. , may not require an expert's evidence. (15)
On the other hand, malpractice claims based on the lawyer's strategic decisions about a case will generally require another attorney with knowledge of that area of the law to opine that a particular act or omission fell below the standard of care to be expected of practitioners in that field. Thus, where a client brought an appellate malpractice claim against a lawyer who failed to raise certain requested federal constitutional issues in the appellate brief, the state appellate court A court having jurisdiction to review decisions of a trial-level or other lower court.
An unsuccessful party in a lawsuit must file an appeal with an appellate court in order to have the decision reviewed. ruled that the plaintiff failed to prove malpractice because no expert testimony was presented to show that the lawyer failed to use a reasonable degree of skill and care in the representation. On the contrary, a constitutional law expert testified on behalf of the lawyer, stating that the issues raised and argued on appeal by the lawyer were far more likely to succeed than the ones suggested by the client. (16)
C. Proximate Cause and Injury: Loss of a Winning Cause or Loss of Access?
Proving that the appellate lawyer's breach of duty was the proximate cause of the plaintiff's injury can also be difficult. Most courts require the plaintiff to prove that "but for" the lawyer's negligence, the case would have succeeded on appeal. (17) The degree of proof that courts require to prove "but for" causation causation
Relation that holds between two temporally simultaneous or successive events when the first event (the cause) brings about the other (the effect). According to David Hume, when we say of two types of object or event that “X causes Y” (e.g. varies from jurisdiction to jurisdiction. (18) A small minority of courts require a plaintiff to establish with "certainty" that but for the attorney's negligence a more favorable fa·vor·a·ble
1. Advantageous; helpful: favorable winds.
2. Encouraging; propitious: a favorable diagnosis.
3. result would have been achieved. (19) Others demand a lesser showing of "probability" and apply a "substantial factor" standard to establish causation. (20) Regardless of the degree of proof required, the role in these jurisdictions requires some showing that the malpractice plaintiff would have succeeded in the underlying appeal.
Other courts, however, hold that merely defaulting on a plaintiffs appellate claim is itself actionable. A prime example is Cincinnati Insurance Company v. Byers. (21) A lawyer was sued in state court for appellate malpractice after an appeal was dismissed for failure to file the trial transcript and record on appeal within the time frame permitted by the court. After removal to federal court, the trial judge granted the lawyer's motion for summary judgment motion for summary judgment n. a written request for a judgment in the moving party's favor before a lawsuit goes to trial and based on recorded (testimony outside court) affidavits (or declarations under penalty of perjury), depositions, admissions of fact, answers because the former client failed to establish that the appeal would have been successful on the merits on the merits adj. referring to a judgment, decision or ruling of a court based upon the facts presented in evidence and the law applied to that evidence. A judge decides a case "on the merits" when he/she bases the decision on the fundamental issues and considers . The Sixth Circuit reversed, noting that the state supreme court "explicitly rejected the notion that a plaintiff asserting a claim for legal malpractice is required in all instances to prove that the plaintiff would have prevailed in the underlying proceeding giving rise to the action." (22) The court of appeals remanded in order to allow appellant A person who, dissatisfied with the judgment rendered in a lawsuit decided in a lower court or the findings from a proceeding before an Administrative Agency, asks a superior court to review the decision. to pursue a claim based on the "lost settlement opportunity" resulting from dismissal of the appeal in the state action. (23)
Another plaintiff-friendly approach is to put the burden of proving whether or not the appeal would have prevailed on the appellate lawyer who defaulted. For example, an appellate malpractice claim was filed for a lawyer's failure to timely file an appellate brief, which resulted in dismissal of the appeal. (24) While the malpractice case was pending in federal district court, the state supreme court ruled that the "but for" requirement of a legal malpractice claim is too harsh on Verb 1. harsh on - criticize harshly; "the teacher keeps harshing on the same kid"
criticise, criticize, pick apart, knock - find fault with; express criticism of; point out real or perceived flaws; "The paper criticized the new movie"; "Don't knock the food--it's plaintiffs, and that it was more logical to "impose on the negligent attorney ... the burden of going forward with evidence ... proving that the client could not have succeeded on the original claim." (25)
D. Accrual accrual,
n continually recurring short-term liabilities. Examples are accrued wages, taxes, and interest. of a Cause of Action
The jurisdictions are in conflict regarding when the legal injury to the plaintiff occurs and the cause of action arises. Generally, to sustain an action in negligence, the plaintiff is required to prove actual and redressable harm or injury. (26) This means that the injury cannot be merely speculative or conjectural con·jec·tur·al
1. Based on or involving conjecture. See Synonyms at supposed.
2. Tending to conjecture.
con·jec . (27) The practical effect of the actual injury requirement is that the cause of action does not accrue for limitations purposes until the injured party Noun 1. injured party - someone injured or killed in an accident
victim - an unfortunate person who suffers from some adverse circumstance knows or should know of it. (28) Thus, under Florida Statutes The Florida Statutes are the codified, statutory laws of the state of Florida. The laws are approved by the Florida Legislature, and signed into law by the Governor of Florida. [section] 95.11, the cause of action accrues for statute of GLOUCESTER, STATUTE OF. An English statute, passed 6 Edw. I., A. D., 1278; so called, because it was passed at Gloucester. There were other statutes made at Gloucester, which do not bear this name. See stat. 2 Rich. II.
MARLEBRIDGE, STATUTE OF. limitation purposes from the "time the cause of action is discovered or should have been discovered" with the exercise of due diligence Research; analysis; your homework. This term has caught on in all industries, because it sounds so "wired." Who would want to do analysis or research when they can do due diligence. See wired. .
In the context of litigation based malpractice, the cause of action does not accrue until the final judgment is rendered because prior to final judgment, injury is merely speculative. (29) In cases that proceed to a final judgment, "[t]he ... statute of limitations for litigation-related malpractice ... begins to run when final judgment becomes final," not when the verdict was rendered or the negligent acts or omissions occurred. (30) Thus, where counsel was negligent in rejecting settlement offers without consulting the client, the statute of limitations did not run until conclusion of the underlying litigation. (31) Finality fi·nal·i·ty
n. pl. fi·nal·i·ties
1. The condition or fact of being final.
2. A final, conclusive, or decisive act or utterance.
Noun 1. also requires conclusion of appellate review if the adverse judgment is appealed. (32)
However, in a malpractice action based on transactional representation, "redressable harm is not established until the documents or legal items fail to achieve their designated purpose." (33) In transactional representation, it is possible for the client to suffer a concrete injury prior to a court holding that written instruments created during representation "fail to achieve their designated purpose." (34) The actual injury can be shown by a client suffering additional expenses to remedy the deficiencies in the instruments that give rise to the malpractice claim.
An exception to the accrual of a cause of action is the continuous representation doctrine. (35) The continuous representation rule "tolls the running of the Statute of Limitations RUNNING OF THE STATUTE OF LIMITATIONS. A metaphorical expression, by which is meant that the time mentioned in the statute of limitations is considered as passing. 1 Bouv. Inst. n. 861. on the malpractice claim until the ongoing representation is completed." (36) The continuous representation doctrine is applicable in both litigation and transactional contexts. In litigation-based malpractice, the continuous representation rule tolls the statute of limitations until all trial and appellate litigation in the underlying case is complete, (37) or until the attorney is replaced in the litigation of the underlying case. (38) In a transactional setting, under the continuous representation doctrine the statute of limitations would be tolled until representation in the transaction which gave rise to the cause of action is completed. (39)
Under the theory of abandonment, before bringing a malpractice action, "a party may be required to pursue an appeal rather than accept a settlement" on the underlying case that gives rise to the malpractice action. (40) Appellate review of the underlying case is a safeguard that gives an attorney the opportunity to cure a nonprejudicial defect that could have been "judicial error rather than legal malpractice." (41) If a favorable outcome on appeal could eliminate the injury complained of by the plaintiff in the malpractice action; the plaintiff will not be able to establish a redressable injury until the appeal in the underlying action is terminated. (42)
However, when it is not possible for the alleged malpractice to be corrected on appeal, the client need not suffer the additional cost of an adverse judgment on appeal in the underlying action as a condition precedent condition precedent n. 1) in a contract, an event which must take place before a party to a contract must perform or do their part. 2) in a deed to real property, an event which has to occur before the title (or other right) to the property will actually be in the to bringing the malpractice cause of action. (43) This is because the redressable harm is not dependent on the outcome of the litigation, and the absence of an appeal does not impede im·pede
tr.v. im·ped·ed, im·ped·ing, im·pedes
To retard or obstruct the progress of. See Synonyms at hinder1.
[Latin imped review that could compensate for the injury caused by the malpractice. In such a case, settlement of the underlying action does not automatically constitute abandonment of a malpractice claim; there is no rule that compels the filing of a futile appeal for the client to show actual redressable injury for a malpractice claim."
The theory of abandonment of a legal malpractice claim has been traditionally narrow, allowed only when an adverse judgment in the underlying action would likely have been corrected on appeal. (45) If such is the case, then the malpractice action is considered "abandoned if a final appellate decision is not obtained." (46)
F. Criminal Cases
In the criminal context, a defendant's usual recourse for deficient de·fi·cient
1. Lacking an essential quality or element.
2. Inadequate in amount or degree; insufficient.
a state of being in deficit. representation will be habeas corpus habeas corpus (hā`bēəs kôr`pəs) [Lat.,=you should have the body], writ directed by a judge to some person who is detaining another, commanding him to bring the body of the person in his custody at a specified time to a or other collateral attack An attempt to impeach or overturn a judgment rendered in a judicial proceeding, made in a proceeding other than within the original action or an appeal from it.
A defendant may make a collateral attack on a judgment entered against him or her in some instances. based on ineffective assistance of counsel Ineffective assistance of counsel is an issue raised in legal malpractice suits and in appeals in criminal cases where a criminal defendant asserts that their criminal conviction occurred because their attorney failed to properly defend the case. . (47) However, in some limited circumstances, even a criminal defendant might have a civil cause of action for damages against a defense attorney for legal malpractice. The burden of establishing the lawyer's negligence as the proximate cause of the underlying conviction requires the defendant to win appellate or post-conviction relief. (48) In other words Adv. 1. in other words - otherwise stated; "in other words, we are broke"
put differently , the conviction must be overturned or the defendant must be exonerated in order for him to prove that "but for" the attorney's negligence, there would not have been an underlying conviction to begin with.
IV. MISTAKES THAT LEAD TO APPELLATE MALPRACTICE CLAIMS
As the preceding cases illustrate, the grounds for appellate malpractice claims vary, and are generally tied to the failure of counsel to perfect or present certain aspects of a client's appeal. Defaults include failing to file a timely appeal, failing to raise an issue on appeal, and failure to transmit the record on appeal.
A. Failure to Raise an Issue on Appeal
One of the most common potentially actionable errors made is the failure of counsel to raise an issue on appeal. A lawyer is expected to use his professional judgment in assessing the merits of a case. In deciding which issues to appeal, the lawyer should be selective and not appeal every conceivable issue. (49) Even if a lawyer is negligent in failing to raise an issue on appeal, however, such an omission will not be actionable unless the client can prove that injury resulted from it.
Thus, where a client who was sued for fees by his former attorney counterclaimed for malpractice based on failure to raise an issue on appeal, the appellate court affirmed the grant of the defense motion for summary judgment. The court held that the issue that the client sought to raise was not a valid one, and its omission therefore could not support an action for malpractice based on the lawyer's failure to follow the instructions of the client. (50) Similarly, failing to raise an issue on appeal is not malpractice if the issue was correctly decided in the lower court. (51) In a case where the client claimed that the lawyer failed to raise and argue the propriety pro·pri·e·ty
n. pl. pro·pri·e·ties
1. The quality of being proper; appropriateness.
2. Conformity to prevailing customs and usages.
3. proprieties The usages and customs of polite society. of a trial court restitution In the context of Criminal Law, state programs under which an offender is required, as a condition of his or her sentence, to repay money or donate services to the victim or society; with respect to maritime law, the restoration of articles lost by jettison, done when the order, the court ruled that the client failed to show any connection between the lawyer's negligence and actual damage, i.e., that "but for" the alleged omissions and negligence of the lawyer, the client would not have been ordered to pay restitution. (52)
B. Failure to Timely File an Appeal
Appellate malpractice based on the failure to timely file an appeal is another common ground of malpractice suits. Thus, the plaintiff prevailed in his malpractice action based on a failure to file an appeal because he showed that had appeal been timely filed it would have been successful. (53)
Conversely con·verse 1
intr.v. con·versed, con·vers·ing, con·vers·es
1. To engage in a spoken exchange of thoughts, ideas, or feelings; talk. See Synonyms at speak.
2. , failure to file a timely appeal of a dismissal is not grounds for action if the underlying case would not have succeeded. (54) Thus, the grant of a defense motion for summary judgment was affirmed where the plaintiff client did not show that the lawyer's untimely filing of the appeal was the proximate cause of any injury because the underlying claim was not cognizable under federal or state law and was therefore doomed to fail. (55) Similarly, another court held that a lawyer was not liable for appellate malpractice, even if he was negligent in failing to file timely the notice of appeal, because the client could not have recovered on the underlying action for intentional infliction of emotional distress The examples and perspective in this article or section may not represent a worldwide view of the subject.
Please [ improve this article] or discuss the issue on the talk page. and a variety of other torts. (56)
C. Other Failures to Perfect an Appeal
Many blunders that lead to appellate malpractice claims are easily avoidable mistakes that arise when lawyers ignore or overlook the rules that must be followed on appeal. (57) Although in many of the cases cited, the errors or omissions were not enough to overcome the plaintiff's burden of proving his or her claim, (58) it is important to note that the mishandling of these issues resulted in the costs and inconvenience of defending a claim. This generally means notifying the malpractice liability carrier and suffering increases in future premiums.
1. Failure to File Record on Appeal or Brief
A lawyer filed the client's notice of appeal on time, but failed to timely file the brief and record on appeal. Two years later, the attorney sought permission to file them, but the court found no valid reason to excuse the delay. Although the court found that the lawyer was guilty of negligence as a matter of law, it held that he was not liable because the appeal would not have been successful even if it had been brought. (59)
2. Failure to File Required Documents
An appellate lawyer filed a timely notice of appeal, but then failed to file certain required documents. As a result, the client's appeal was dismissed. The court recognized that the client had lost the opportunity to appeal because of the lawyer's negligence, but it determined that an appellate court would not have reversed or reached a more favorable judgment on the underlying claim. (60)
3. Certification of Incomplete Transcript as Correct
An appellate attorney certified See certification. a transcript on appeal as correct and later realized that it did not contain testimony from the suppression heating in the underlying criminal case. The appellate attorney filed a motion seeking a writ from the court directing the court reporter to file a transcript of her notes with the court, but the motion was denied. The client's conviction was subsequently upheld by a per curiam [Latin, By the court.] A phrase used to distinguish an opinion of the whole court from an opinion written by any one judge.
Sometimes per curiam signifies an opinion written by the chief justice or presiding judge; it can also refer to a brief oral announcement affirmance. He then filed an appellate malpractice suit alleging that his appeal on the merits was rejected because of the missing suppression hearing testimony. The court held that the per curiam affirmance indicated the appeal had no merit, and that the client was not prejudiced by the missing testimony. (61)
4. Failure to Print Record on Appeal
A plaintiff alleged that her appellate lawyers failed to perfect an appeal of a divorce order because the time for appeal expired without the required printing of the record. The court found no merit in the plaintiff's claim because the client failed to advance the funds required to cover the costs of printing the record after she was contacted repeatedly. As a result of the client' s inaction in·ac·tion
Lack or absence of action.
lack of action; inertia
Noun 1. , the time for perfecting the appeal expired. (62)
D. Failure to Notify Client
Failing to perfect the appeal or raise a meritorious mer·i·to·ri·ous
Deserving reward or praise; having merit.
[Middle English, from Latin merit issue on appeal is not the only way in which appellate counsel can commit malpractice. In one case, appellate counsel was paid $15,000 to undertake an appeal and did so successfully. However, after winning reversal and remand To send back.
A higher court may remand a case to a lower court so that the lower court will take a certain action ordered by the higher court. A prisoner who is remanded into custody is sent back to prison subsequent to a Preliminary Hearing before a tribunal or magistrate on the issue of damages, he failed to notify his client of the victory. No proceedings on remand were pursued, and five years later judgment was entered against the client. The client sued appellate counsel. The trial court dismissed but the appellate court reversed, holding that the complaint was sufficient to state causes of action in negligence and breach of contract. (63)
V. DEFENSE: THE HONEST EXERCISE OF PROFESSIONAL JUDGMENT
Not every mistake made by an appellate lawyer constitutes actionable malpractice. An appellate lawyer must exercise professional judgment on a wide range of issues in the course of appellate representation. The lawyer must decide whether to file an appeal, which issues to raise on appeal, and how to structure and argue the case. Courts have consistently held that a lawyer's honest, professional judgments made to advance the client's case are protected from malpractice claims. (64) Such professional judgments include choice of trial tactics and decisions made about how to conduct a case. (65)
This rule is offset by the fact that the lawyer must always be sure to exercise a reasonable degree of skill and care in all dealings on behalf of the client. (66) In sum, an appellate malpractice claim is not likely to be actionable if it is based on an unfavorable outcome resulting from an appellate lawyer's honest exercise of professional judgment. Second-guessing the appellate attorney's judgment, or surmising sur·mise
v. sur·mised, sur·mis·ing, sur·mis·es
To infer (something) without sufficiently conclusive evidence.
To make a guess or conjecture.
n. what another attorney might have done under similar circumstances, is insufficient to prove an appellate malpractice claim.
The following examples demonstrate that a lawyer's honest exercise of professional judgment succeeded as a defense to a claim for appellate malpractice.
A. Failure to File Cross-Appeal
In Burk v. Burzynski, (67) the plaintiff claimed that the lawyer's failure to file a cross-appeal constituted appellate malpractice. The lawyer testified that he exercised his best professional judgment in deciding not to cross-appeal, because he believed it would be too costly for the client and would damage the arguments made on behalf of the client at trial and on appeal. The plaintiff provided no expert testimony that filing a cross-appeal in such a case was the standard of due care. The court held that no cause of action existed against the lawyer because, although he may have made errors in judgment in litigating the case, the errors arose from his professional judgment as to how to best handle the case. (68)
B. Failure to Raise Issue on Appeal
In Holmberg, Galbraith, Holmberg, Orkin & Bennett v. Koury, (69) the court held that an appellate lawyer's strategic decisions or mistakes of judgment during the handling of a client's appeal did not constitute appellate malpractice. In Koury, a plaintiff attorney brought an action to recover legal fees, and the defendant client counterclaimed, seeking damages for appellate malpractice. The client argued that the attorney failed to raise certain issues on appeal, and that the attorney "failed to give an aggressive, interesting, creative, and convincing oral argument." (70) The court held that the brief filed was "prepared after an adequate investigation of the facts and research of the law, and the relevant issues were raised in the brief." (71) The court found that the lawyer's conduct was "a strategic decision, or at most, a mistake of judgment." (72)
C. Failure to Understand Unsettled Law
It is generally recognized that mistakes in judgment that arise from a misunderstanding of an unsettled area of law are not actionable as legal malpractice. (73) In Buchanan v. Young, (74) the court considered whether the dismissal of an appeal constituted malpractice in a case where an appellate lawyer miscalculated the tolling effect of motions for JNOV JNOV Judgment Not Withstanding the Verdict or for new trial on the time for filing the notice of appeal. The court found that the lawyer's miscalculation mis·cal·cu·late
tr. & intr.v. mis·cal·cu·lat·ed, mis·cal·cu·lat·ing, mis·cal·cu·lates
To count or estimate incorrectly.
mis·cal was reasonable because the law on the issue was not settled at the time that the appeal was filed. The court held that a lawyer cannot be held liable for malpractice based on an error in judgment arising from unsettled law.
To the contrary, in DeBiasi v. Snaith, (75) the court found malpractice despite the ambiguity in the roles of procedure. The lawyer mistakenly believed that the appellate roles allowed motions for rehearing rehearing n. conducting a hearing again based on the motion of one of the parties to a lawsuit, petition or criminal prosecution, usually by the court or agency which originally heard the matter. , clarification, or certification to be filed serially, and that the fifteen-day time limit would not be tolled until each successive motion was ruled upon. The lawyer filed timely motions for clarification, rehearing, and rehearing en banc [Latin, French. In the bench.] Full bench. Refers to a session where the entire membership of the court will participate in the decision rather than the regular quorum. In other countries, it is common for a court to have more members than are , which were denied. The lawyer then filed a subsequent motion for certification within fifteen days of that denial. That motion was denied as untimely. The client then brought the malpractice action against the lawyer. The court held that a "mere `ambiguity of a rule' of procedure, without more, does not equate e·quate
v. e·quat·ed, e·quat·ing, e·quates
1. To make equal or equivalent.
2. To reduce to a standard or an average; equalize.
3. to the somewhat more amorphous Unorganized or vague. A lack of structure. For example, the amorphous state of a spot on a rewritable optical disc means that the laser beam will not be reflected from it, which is in contrast to a crystalline state which will reflect light. See crystalline. realm of `fairly debatable' or `unsettled area of the law' to which the doctrine of judgmental judg·men·tal
1. Of, relating to, or dependent on judgment: a judgmental error.
2. Inclined to make judgments, especially moral or personal ones: immunity is applied." (76)
VI. APPELLATE COUNSEL' S DUTY TO INFORM A CLIENT OF A POTENTIAL MALPRACTICE CLAIM AGAINST THE TRIAL LAWYER
In a 1981 Informal Opinion, the American Bar Association American Bar Association (ABA), voluntary organization of lawyers admitted to the bar of any state. Founded (1878) largely through the efforts of the Connecticut Bar Association, it is devoted to improving the administration of justice, seeking uniformity of law responded to an inquiry concerning the duty of an appellate counsel to advise a client that a civil cause of action for malpractice against trial counsel was appropriate. (77) In the ABA's view, the rules neither prohibited nor required the advice. The opinion stated, however, that it would be appropriate for appellate counsel to advise the client of the potential claim against trial counsel, because Ethical Consideration 2-2 urged lawyers to assist lay persons in recognizing legal problems which may not be self-revealing or timely noticed. (78)
In 1989, the Illinois State Bar Association took a stronger position on the issue. (79) A hypothetical question A mixture of assumed or established facts and circumstances, developed in the form of a coherent and specific situation, which is presented to an expert witness at a trial to elicit his or her opinion. involved an appellate lawyer who was retained to represent an appellant who was appealing an adverse judgment in a civil action for the death of a minor struck by a drunken driver. The inquiry was whether the appellate lawyer had a duty to disclose to the client the potential malpractice claim against the trial lawyer based on a discovery that the trial lawyer failed to name a potential defendant in the lawsuit within the statute Encompassed by, or included under, the provisions and scope of a particular law.
In the U.S. legal system, a person who is charged with violating a statute must have committed actions that are specifically addressed in the law. of limitations.
In the State Bar's view, the appellate counsel had a duty to disclose the trial lawyer's potential malpractice, because failure to do so could clearly damage the client. The Bar based its opinion on Illinois Rule 7-101(a)(3). The rule stated in part that "a lawyer shall not prejudice or damage a client during the course of a professional relationship." The State Bar also determined that the duty continued even after the representation ended. In affirming the opinion, the Board of Governors relied on Illinois Rules of Professional Conduct 1.4(b) and 2.1. Rule 1.4(b) stated that "a lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation." Rule 2.1 stated that "a lawyer shall exercise independent professional judgement and render candid can·did
1. Free from prejudice; impartial.
2. Characterized by openness and sincerity of expression; unreservedly straightforward: In private, I gave them my candid opinion. advice."
Another writer has addressed the issue of a lawyer's ethical obligation to disclose the malpractice of prior counsel, within a broader discussion of the entire controversy doctrine. (80) The article concluded that if the new lawyer finds that the client has a malpractice action against prior counsel, the new lawyer is obligated ob·li·gate
tr.v. ob·li·gat·ed, ob·li·gat·ing, ob·li·gates
1. To bind, compel, or constrain by a social, legal, or moral tie. See Synonyms at force.
2. To cause to be grateful or indebted; oblige. to inform the client. The author found this duty in several Rules of Professional Conduct: (81) the duty of loyalty and competence to the client; the duty to keep the client reasonably informed about the status of the matter; and the duty to explain matters to the extent reasonably necessary to permit the client to make informed decisions. (82)
VII. BREACH OF CONTRACT AS AN ALTERNATIVE CAUSE OF ACTION
Breach of contract is widely recognized as an alternative or supplement to the typical negligence claim for attorney default or misfeasance A term used in Tort Law to describe an act that is legal but performed improperly.
Generally, a civil defendant will be liable for misfeasance if the defendant owed a duty of care toward the plaintiff, the defendant breached that duty of care by improperly performing . (83) Indeed, the contract claim developed first:
Professional malpractice has its origins in contract law. Initially, the professional was viewed as breaching his or her professional duties under a contractual relationship of privity with the client. When contract theories failed to provide a good justification to permit an award for bodily injury damages, particularly in medical malpractice, the cause of action evolved into a negligence theory. (84)
As medical malpractice Improper, unskilled, or negligent treatment of a patient by a physician, dentist, nurse, pharmacist, or other health care professional. jurisprudence jurisprudence (jr'ĭsprd`əns), study of the nature and the origin and development of law. evolved from its contractual basis into the tort theory of negligence, so did other types of professional malpractice, including attorney malpractice. Still, a cause of action for breach of contract is viable for some attorney malpractice claims, (85) even though "[t]ort law has traditionally provided the primary means for resolving claims of attorney malpractice." (86)
Part of the reason negligence has become the favored cause of action for attorney malpractice is because of the common difficulty in establishing the express terms of the contract necessary to define the duty breached. For an express contract to come into existence, the attorney must agree "to perform a specific service or act in a particular manner." (87) If appellate counsel simply fails to perform at all, a clear-cut case of breach of contract can be shown. This may arise where the attorney defaulted on the agreement to take a timely appeal, or to perfect an appeal which was dismissed as a result. (88) But if the claimed error or omission is of a more subtle nature involving the quality of the representation, there will often be no specific term of the contract that was breached. This will present an obstacle to bringing an action for breach of contract for the defective appellate representation. (89)
If it is necessary for the plaintiff to argue that the contract for appellate representation implies terms of ordinary skill and knowledge, it is the functional equivalent of arguing negligence. In such cases, the two theories of recovery converge.
No matter how the undertaking to exercise ordinary skill and knowledge is characterized, the essential claim is for legal malpractice. The theories share the same facts and, except for the effect of certain defenses, such as the statute of limitations, usually reach the same result. (90)
For example, in a case where appellate counsel failed to raise a potential claim on appeal, there would ordinarily be no specific contractual clause or term breached to allege To state, recite, assert, or charge the existence of particular facts in a Pleading or an indictment; to make an allegation.
allege v. as a basis for a suit in contract. (91) A suit for breach of contract would have to allege that the lawyer's undertaking on appeal implied the use of ordinary skill, and that such implied promise was breached. In such a case, the essence of the claim has reverted to the functional equivalent of a negligence action because the requisite proof is a breach of a duty of due care.
Some jurisdictions have created hybrid causes of action by statute, independent of and encompassing common law contract and tort liability. (92)
The once important subject of which theory of liability a plaintiff in a legal malpractice case should rely upon has lost much of its impact. Today, the same essential standard applies regardless of theory and regardless of how the cause of action is phrased. (93)
Some scholars further discount the differences between the alternative theories of liability and even refer to attorney malpractice as neither contract nor tort, rather "lying in a `borderland' between the two." (94)
Where there is a choice of tort or contract theory, appellate malpractice resulting from an attorney's failure to file or to perfect an appeal may be easier to prove based on breach of promise instead of negligence. Expert witnesses to testify to the standard of professional care would not be necessary. The duty of the attorney to the client is breached in such an obvious way that the contract claim may well justify a grant of summary judgment against the defaulting attorney.
The measure of damages MEASURE OF DAMAGES, prac. Those principles or rules of law which control a jury in adjusting or proportioning the damages, in certain cases. 1 Bouv. Inst. n. 636. recoverable in contract is different than in tort, but in practice the two theories often yield similar results. Typical contract damages, or expectation damages, seek to put the plaintiff in the same position he would have been in had the contract not been breached. (95) "The expectation interest is based not on the injured in·jure
tr.v. in·jured, in·jur·ing, in·jures
1. To cause physical harm to; hurt.
2. To cause damage to; impair.
3. party's hopes at the time he made the contract, but on the actual value that the contract would have had to him had it been performed." (96) Damages must be established with a reasonable degree of certainty. (97) This raises the question whether the measure of damages should be based on the value of the appeal if it had succeeded, or merely the out-of-pocket damages represented by the payment of fees and costs. Recovery of the latter would make the plaintiff ex ante whole (98) but would not confer upon plaintiff the expected value Expected value
The weighted average of a probability distribution. Also known as the mean value. of the case; the plaintiff would merely be restored to the position he was in before the breach of contract occurred.
Additional damages based on the value of the underlying appeal if it had succeeded must be pled and argued as expectation damages. (99) In order to be recoverable, consequential damages Injury or harm that does not ensue directly and immediately from the act of a party, but only from some of the results of such act, and that is compensable by a monetary award after a judgment has been rendered in a lawsuit. must be a foreseeable result of the breach that created the cause of action. (100) It is axiomatic ax·i·o·mat·ic also ax·i·o·mat·i·cal
Of, relating to, or resembling an axiom; self-evident: "It's axiomatic in politics that voters won't throw out a presidential incumbent unless they think his challenger will that a breaching party cannot be held liable for an injury that was not caused by the breach. (101) The plaintiff's burden in pleading and proving consequential damages parallels the burden faced by plaintiff in a negligence action in establishing that the attorney was the proximate cause of the damages. (102)
It appears that there is a growing tendency for dissatisfied clients to sue their former attorneys for alleged legal malpractice at trial or on appeal. While the reported cases often show a favorable outcome for the attorney, it is reasonable to assume that many cases of clearer liability were settled without litigation all the way through a reported appellate opinion. There is no way to track the number of settlements that have been paid by counsel or their liability carriers to avoid exposure to valid claims or simply to avoid the costs of defending weak ones.
Even where counsel may defeat a malpractice claim on the basis of favorable doctrines of no causation or no injury, the damage to professional reputation and increase in liability insurance premiums are things that every practitioner will wish to avoid to the maximum extent possible. Careful attention to the fundamentals of appellate practice and the particular requirements of court rules of appellate procedure The rules of appellate procedure are the rules which control the nature and conduct of a legal appeal, which may be:
* This article is based on Chapter 13 of the author's recently published treatise A scholarly legal publication containing all the law relating to a particular area, such as Criminal Law or Land-Use Control.
Lawyers commonly use treatises in order to review the law and update their knowledge of pertinent case decisions and statutes. , Professional Judgment on Appeal: Bringing and Opposing Appeals (Carolina Academic Press 2002).
(1.) See infra [Latin, Below, under, beneath, underneath.] A term employed in legal writing to indicate that the matter designated will appear beneath or in the pages following the reference.
infra prep. pt. VII.
(2.) Maryland Cas. Co. v. Price, 231 F. 397, 402 (4th Cir. 1916).
(3.) Porter v. Ogden, Newell & Welch, 241 F.3d 1334, 1340 (11th Cir. 2001).
(4.) See Smiley See emoticon.
smiley - emoticon v. Manchester Ins. & Indemn. Co., 375 N.E.2d 118, 123 (Ill. 1978) (holding liable a lawyer sued for failure to make a settlement offer that his client authorized au·thor·ize
tr.v. au·thor·ized, au·thor·iz·ing, au·thor·iz·es
1. To grant authority or power to.
2. To give permission for; sanction: ). The failure resulted in a liability judgment in excess of the policy limit. The plaintiff's expert witness, a local lawyer, testified that it was unreasonable for a lawyer not to have made such an offer, and that the lawyer failed to exercise the degree of reasonable care usually exercised by other lawyers in the area. The court held that in view of the authority of the lawyer to settle, and because he never made the offer, his inaction was the proximate cause of the client's excessive liability. Id.
(5.) Simko v. Blake, 532 N.W.2d 842, 846 (Mich. 1995).
(6.) Darby & Darby, P.C. v. VSI VSI Vinyl Siding Institute
VSI Voltage Source Inverter
VSI Virtual Switch Interface
VSI Vertical Speed Indicator
VSI Voluntary Separation Incentive
VSI Virtual Socket Interface
VSI Vision Systems International
VSI Vertical Shaft Impactor Intl., Inc., 739 N.E.2d 744, 747-48 (N.Y. 2000); see also Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice [section] 17.7, 509 (4th ed., West Publg. Co. 1996).
(7.) Bernstein v. Oppenheim & Co., P.C., 554 N.Y.S.2d 487, 489-90 (App. Div. 1990).
(8.) Simko, 532 N.W.2d at 846.
(9.) Duffey Law Office, S.C. v. Tank Trans., Inc., 535 N.W.2d 91, 95 (Wis. App. 1995).
(10.) David J David J. Haskins (b. April 24, 1957, in Northampton, England) is a British alternative rock musician. He was the bassist for the seminal gothic rock band Bauhaus. Life and work . Meiselman, Attorney Malpractice: Law and Procedure [section] 3.1, 39-40 (Law. Co-op. Publg. Co. 1980).
(11.) Simko, 532 N.W.2d at 846 (" In legal malpractice actions, a duty exists as a matter of law if there is an attorney client relationship.").
(12.) Natl. Union Fire Ins. Co. v. Salter salt·er
1. One that manufactures or sells salt.
2. One that treats meat, fish, or other foods with salt.
Noun 1. , 717 S.2d 141, 142 (Fla. Dist. Ct. App. 1998) ("To bring a legal malpractice action, the plaintiff must either be in privity A close, direct, or successive relationship; having a mutual interest or right.
Privity refers to a connection or bond between parties to a particular transaction. Privity of contract is the relationship that exists between two or more parties to an agreement. with the attorney ... or the plaintiff must be an intended (not incidental Contingent upon or pertaining to something that is more important; that which is necessary, appertaining to, or depending upon another known as the principal.
Under Workers' Compensation statutes, a risk is deemed incidental to employment when it is related to whatever a ) third-party beneficiary third-party beneficiary n. a person who is not a party to a contract, but has legal rights to enforce the contract or share in proceeds because the contract was made for the third party's benefit. ."); see also McLane v. Russell, 546 N.E.2d 499, 502 (Ill. 1989) (same); Cal. Pub. Employees' Retirement Sys. v. Sherman & Sterling, 741 N.E.2d 101, 104 (N.Y. 2000) (same). Cf. Moransais v. Heathman, 744 S.2d 973, 977 (Fla. 1999) ("Florida recognizes a cause of action based on professional negligence professional negligence n. See malpractice. against an individual professional who did not personally contract with the aggrieved party An individual who is entitled to commence a lawsuit against another because his or her legal rights have been violated.
A person whose financial interest is directly affected by a decree, judgment, or statute is also considered an aggrieved party entitled to bring an action , but who is an employee of the professional services (job) professional services - A department of a supplier providing consultancy and programming manpower for the supplier's products. corporation that did contract with the aggrieved party.").
(13.) See Natl. Union, 717 S.2d at 142.
(14.) RTC See real time clock. Mortg. Trust v. Fidelity Natl. Title Ins. Co., 58 F. Supp. 2d 503, 524 (D.N.J. 1999) (quoting with approval Sommers v. McKinney, 670 A.2d 99, 104 (N.J. Super., App. Div. 1996), where the court held that "the facts of a given case may be such that a layperson's common knowledge is sufficient to permit a finding that the duty of care has been breached").
(15.) Little v. Matthewson, 442 S.E.2d 567, 571 (N.C. App. 1994) ("Where no issue is raised as to defendant's responsibility for allowing the statute of limitations to run, where the negligence of defendant is apparent and undisputed, and where the record discloses obvious and explicit carelessness in defendant's failure to meet the duty of care owed by him to plaintiff, the court will not require expert testimony to define further that which is already abundantly clear.")(quoting House v. Maddox, 360 N.E.2d 580, 584 (Ill. 1977)).
(16.) Randall v. Bantz, Gosch, Cremer, Peterson & Sommers, 883 F. Supp. 449, 450 (D.S D.S Drainage Structure (flood protection) .D. 1995). The client had specifically requested that the issues be raised to preserve the right to file for a writ of certiorari Noun 1. writ of certiorari - a common law writ issued by a superior court to one of inferior jurisdiction demanding the record of a particular case
judicial writ, writ - (law) a legal document issued by a court or judicial officer to the United States Supreme Court United States Supreme Court: see Supreme Court, United States. in the event of an unsuccessful appeal. After the appeal was denied in the state court, the client was unable to petition for certiorari certiorari
In law, a writ issued by a superior court for the reexamination of an action of a lower court. The writ of certiorari was originally a writ from England's Court of Queen's (King's) Bench to the judges of an inferior court; it was later expanded to include writs because the constitutional issues had not been raised.
(17.) See e.g. Patterson v. Swarr, May, Smith & Anderson, 473 N.W.2d 94, 101 (Neb. 1991); Carmel v. Clapp & Eisenberg, 960 F.2d 698, 703 (7th Cir. 1992); Pickard v. Turner, 592 S.2d 1016, 1019 (Ala. 1992); St. Pierre v. Washofsky, 391 S.2d 78, 79 (La. Ct. App. 1980).
(18.) Meiselman, supra A relational DBMS from Cincom Systems, Inc., Cincinnati, OH (www.cincom.com) that runs on IBM mainframes and VAXs. It includes a query language and a program that automates the database design process. n. 10, [section] 3.3, 42-43.
(19.) Id. See e.g. Coon coon: see raccoon. v. Ginsberg, 509 P.2d 1293, 1295 (Colo. App. 1973).
(20.) Meiselman, supra n. 10, [section] 3.3, 43 (stating that the majority view is represented by Maryland Cas. Co., 231 F. at 401 (holding, to recover in a suit against an attorney, "the plaintiff must prove ... such negligence resulted in and was the proximate cause of" loss)). See also RTC Mortg. Trust, 58 F. Supp. 2d at 526 (explaining that the New Jersey Supreme Court has held that the substantial factor test should be applied).
(21.) 151 F.3d 574, 579 (6th Cir. 1998).
(23.) Cf. Lawrence W. Kessler, Alternative Liability in Litigation Malpractice Actions: Eradicating the Last Resort of Scoundrels, 37 San Diego San Diego (săn dēā`gō), city (1990 pop. 1,110,549), seat of San Diego co., S Calif., on San Diego Bay; inc. 1850. San Diego includes the unincorporated communities of La Jolla and Spring Valley. Coronado is across the bay. L. Rev. 401 (2000) (presenting a detailed argument for malpractice recovery against a litigation attorney who acts unreasonably, regardless of whether plaintiff can prove that he would have won at trial). His article argues that the causation defense, "the greatest barrier for those who have received inadequate professional services," should be replaced or supplemented with alternative doctrines of (1) the substantial factor test, (2) the burden-switching technique and (3) the loss of chance valuation of damages. Id. at 406-407. In principle, the same arguments should apply on appeal.
(24.) Cabot, Cabot & Forbes Co. v. Brian, Simon, Peragine, Smith & Redfearn, 568 F. Supp. 371,372 (E.D. La. 1983).
(25.) Id. at 373 (quoting Jenkins v. St. Paul St. Paul
as a missionary he fearlessly confronts the “perils of waters, of robbers, in the city, in the wilderness.” [N.T.: II Cor. 11:26]
See : Bravery Fire & Marine Ins. Co., 422 S.2d 1109, 1110 (La. 1982)).
(26.) Porter v. Ogden, Newell & Welch, 241 F.3d 1334, 1339 (11th Cir. 2001) (Florida law The jurisprudence of this state offers major differences from doctrines prevailing in the United States at either the federal level or that of the various states.
Homestead exemption from forced sale, the dangerous instrumentality doctrine, the right to privacy, and the Williams "draw[s] a distinction between knowledge of actual harm from legal malpractice and knowledge of potential harm").
(27.) Giambrone v. Bank of N.Y., 677 N.Y.S.2d 608, 609 (App. Div., 2d Dept. 1998) ("Mere speculation about a loss resulting from an attorney's alleged omission is insufficient to sustain a prima facie case prima facie case n. a plaintiff's lawsuit or a criminal charge which appears at first blush to be "open and shut." (See: prima facie) of legal malpractice.").
(28.) See Porter, 241 F.3d at 1339 ("Florida courts hold that a malpractice action accrues when it is reasonably clear that the client has actually suffered some damage from legal advice or services.") (quoting Throneburg v. Boose, Casey, Ciklin, Lubitz, Martens, McBride & O'Connell, P.A., 659 S.2d 1134, 1136 (Fla. App. 1995)).
(29.) Porter, at 1338 ("When a plaintiff bases a malpractice action on errors committed in the course of litigation, and the litigation proceeds to judgment, the redressable harm is not established until final judgment.").
(30.) Silverstone v. Edell, 721 S.2d 1173, 1175 (Fla. 1998).
(31.) See Fremont Indem. Co. v. Carey, Dwyer, Eckhart, Mason & Spring, P.A., 796 S.2d 504 (Fla. 2001).
(32.) Peat, Marwick, Mitchell & Co. v. Lane, 565 S.2d 1323, 1325 (Fla. 1990) ("A clear majority of the [Florida] district courts [of appeals] have expressly held that a cause of action for legal malpractice does not accrue until the underlying legal proceeding has been completed on appellate review because, until that time, one cannot determine if there was any actionable error by the attorney.") See also Watkins v. Gilbride Heller & Brown, P.A., 783 S.2d 224, 225 (Fla. 2001) (statute of limitations did not begin to run until after the supreme court's resolution of client's petition for writ of certiorari in the underlying case).
(33.) Porter, 241 F.3d at 1339.
(35.) Shumsky v. Eisenstein, 750 N.E.2d 67, 69 (N.Y. 2001) (noting that an "action to recover damages for legal malpractice accrues when the malpractice is committed" unless continuous representation doctrine applies).
(36.) Glamm v. Allen, 439 N.E.2d 390, 393 (N.Y. 1982).
(37.) Jacobsen v. Haugen, 529 N.W.2d 882, 885 (N.D. 1995) (continuous representation doctrine "tolls the statute of limitations or defers accrual of the cause of action while the attorney continues to represent the client" in the underlying litigation).
(38.) Hampton v. Payne, 600 S.2d 1144, 1146 (Fla. App., 3d Dist. 1992) (holding that statute of limitations began to run when client replaced her attorney in the underlying litigation; client could no longer avail herself of the continuous representation rule once she replaced her attorney).
(39.) Zaref v. Berk & Michaels, P.C., 595 N.Y.S.2d 772, 774 (App. Div., 1st Dept. 1993) (continuous representation applies only in connection with continuation of the particular transaction that is the subject of the allegation); Boorman v. Bleakley, Platt, Schmidt, Hart & Fritz, 451 N.Y.S.2d 179, 180 (App. Div., 2d Dept. 1982) ("[C]ause of action under th[e] doctrine of continuous representation does not accrue until the attorney's representation concerning a particular transaction is terminated.").
(40.) Parker v. Graham & James, 715 S.2d 1047, 1048 (Fla. App., 3d Dist. 1998).
(42.) Coble co·ble
1. Nautical A small flatbottom fishing boat with a lugsail on a raking mast.
2. Scots A kind of flatbottom rowboat. v. Aronson, 647 S.2d 968, 970 (Fla. App., 4th Dist. 1994).
(43.) Id. at 971; see also Parker, 715 S.2d at 1048 (holding that when settlement does not thwart any review process that would cure malpractice, settlement of appeal does not constitute abandonment of malpractice claim); Segall v. Segall, 632 S.2d 76, 78 (Fla. App., 3d Dist. 1994) ("We are unable to establish a bright line rule that complete appellate review of the underlying litigation is a condition precedent to every legal malpractice action.").
(44.) Hunzinger Constr. Corp. v. Quarles & Bradley, 735 S.2d 589, 594-95 (Fla. App., 4th Dist. 1999).
(45.) Eastman v. Flor-Ohio, Ltd., 744 S.2d 499, 503 (Fla. 1999) (quoting with approval Lenahan v. Russell L. Forkey, P.A., 702 S.2d 610, 611 (Fla. App., 4th Dist. 1993): "[T]he dismissal or settlement of a related case, or the failure to take an appeal of the underlying lawsuit, will [not] automatically translate into an inability to establish redressable harm.").
(46.) Segall, 632 S.2d at 78.
(47.) See Strickland v. Washington In Strickland v. Washington, , 466 U.S. 668, 687 (1984) (holding that the Sixth Amendment imposes a standard of reasonable competence in determining ineffective assistance of counsel in the trial or sentencing of a criminal case). The same standard applies to the first appeal as of right in a criminal case. Evitts v. Lucey, 469 U.S. 387, 396 (1985). , the United States Supreme Court established a two-part test for establishing a claim of ineffective assistance of counsel.
(48.) Steele v. Kehoe, 747 S.2d 931,933 (Fla. 1999) ("A majority of jurisdictions have held that appellate or postconviction relief is a prerequisite to maintaining [an] action [for legal malpractice]."); Britt britt
Variant of brit.
Noun 1. britt - the young of a herring or sprat or similar fish
young fish - a fish that is young
2. v. Legal Aid Socy., Inc., 741 N.E.2d 109, 112 (N.Y. 2000) (same).
(49.) Jones v. Barnes, 463 U.S. 745, 751-52 (1983).
(50.) Trustees of Schools v. Schroeder, 278 N.E.2d 431,435 (Ill. App., 1st Dist. 1971).
(51.) Senise v. Mackasek, 642 N.Y.S.2d 241,242 (App. Div., 1st Dept. 1996).
(53.) Cree Oil Co. v. Home Ins. Co., 653 S.2d 620, 629 (La. App., 3d Cir. 1995). The court found that the trial court erred in holding the oil company liable, and ruled that had the appeal been taken, the oil company would have been relieved of its liability. Because the oil company showed that it could have prevailed on appeal, the appellate lawyer was found to be negligent.
(54.) Natl. Wrecking Co. v. Spangler, Jennings, Spangler & Dougherty, 782 F.2d 101, 102 (7th Cir. 1985).
(55.) Id. at 106.
(56.) Kunau v. Pillers, Pillers & Pillers, P.C., 404 N.W.2d 573, 576-577 (Iowa App. 1987).
(57.) In McAlister v. Slosberg, 658 A.2d 658, 659-60 (Me. 1995), the client hired the attorney to represent him on appeal in reliance on the attorney's representation that "he had a thirty percent chance of prevailing." Two years later, the client learned that the appeal had been dismissed because the attorney failed to file an appellate brief.
(58.) Id. at 660. The complaint contained "no allegation nor did he offer any evidence that, absent the misconduct by Slosberg, he would have been successful on the appeal ... [the client] merely alleged in his complaint that he suffered `the lost opportunity which may have resulted in prevailing on the appeal'.... [T]he trial court properly granted a judgment as a matter of law Judgment as a matter of law (JMOL) is a motion made by a party, during trial, claiming the opposing party has insufficient evidence to reasonably support its case. JMOL is similar to summary judgment, which is a motion made before trial. in favor of [the lawyer] on this claim."
(59.) Katsaris v. Scelsi, 453 N.Y.S.2d 994, 996-998 (Sup. Ct. 1982). See also McAlister, 658 A.2d at 660 (failure to file brief and lying about appeal pending); Bryant v. Seagraves, 526 P.2d 1027, 1028 (Or. 1974) (failure to file abstract of record or brief); Kilmer v. Caner, 78 Cal. Rptr. 800, 805 (2d App. Dist., Div. 5 1969) (failure to file brief).
(60.) Jones v. Psimos, 882 F.2d 1277, 1284 (7th Cir. 1989).
(61.) Stewart v. Walls, 534 S.2d 1033, 1035 (Miss. 1988). See also Welder v. Mercer, 448 S.W.2d 952, 954 (Ark. 1970) (failure to obtain and file transcript).
(62.) Frist v. Leatherwood, Walker, Todd & Mann, 433 F.2d 11, 12 (4th Cir. 1970) (per curiam).
(63.) See Perkovic v. Barrett, 671 A.2d 740, 744 (Pa. Super. 1996). While upholding a cause of action for failure to notify, the court rejected plaintiffs' claim that appellate counsel had a duty of continued representation after remand under the fee agreement for the appeal.
(64.) Simko, 532 N.W.2d at 847 ("Where an attorney acts in good faith and in honest belief that his acts and omissions are well founded in law and are in the best interest of his client, he is not answerable an·swer·a·ble
1. Subject to being called to answer; accountable. See Synonyms at responsible.
2. That can be answered or refuted: an answerable charge.
3. for mere errors in judgment.").
(66.) Woodruff v. Tomlin, 616 F.2d 924, 930 (6th Cir. 1980).
(67.) 672 P.2d 419 (Wyo. 1983).
(68.) Id. at 427.
(69.) 575 N.Y.S.2d 192, 194 (App. Div., 3d Dept. 1991).
(73.) Mallen & Smith, supra n. 6, [section] 17.1,497-99.
(74.) 534 S.2d 263, 264-65 (Ala. 1988).
(75.) 732 S.2d 14, 16 (Fla. App., 4th Dist. 1999).
(77.) ABA Aba (ä`bä), city (1991 est. pop. 264,000), SE Nigeria. It is an important regional market, a road and rail hub, and a manufacturing center for cement, textiles, pharmaceuticals, processed palm oil, shoes, plastics, soap, and beer. Comm See comms. . on Ethics and Prof. Responsibility, Informal Op. 1465 (1981).
(78.) See Richard Klein Richard Klein can refer to:
(79.) See Ill. St. Bar Assn. Advisory Op. 88-11 (1989).
(80.) See Nancy J. Moore, Implications of Circle Chevrolet for Attorney Malpractice and Attorney Ethics, 28 Rutgers L.J. 57 (1996) (appearing in Symposium: Entire Controversy Doctrine).
(81.) Id. at 64. The author cited New Jersey Rules of Professional Conduct 1.7 (conflict of interests), 1.1 (competence), and 1.4(a) and (b) (communication). To support her conclusion, she also cited Ill. Advisory Op. 88-11; supra n. 79, ABA Informal Opinion 1465, supra n. 77, and Pa. St. Bar Op. 88-225, which concluded that an appellate lawyer who discovers malpractice by the trial lawyer must inform the client (1) that the case was dismissed as a result of the trial lawyer's lateness under the statute of limitations and (2) that the client may have a legal malpractice claim against the trial lawyer.
(82.) Moore, supra n. 80. The author also considered whether the new lawyer had an affirmative duty to search for possible malpractice of the trial lawyer when it was not apparent and whether the new lawyer could limit the scope of representation to avoid investigation and disclosure of the original lawyer's malpractice. She answered both questions in the affirmative. Id. at 70-71.
(83.) E.g. Gunn v. Mahoney, 408 N.Y.S.2d 896, 900 (Sup. Ct., Erie County Erie County is the name of several counties in the United States:
In order to establish that a particular act was tortious, a plaintiff must prove that an actionable wrong existed and that damages ensued from that wrong. in nature).
(84.) Monroe v. Sarasota County Sch. Bd., 746 S.2d 530, 535 (Fla. App., 2d Dist. 1999).
(85.) Collins v. Reynard, 607 N.E.2d 1185, 1186 (Ill. 1992) ("Today we rule that a complaint against a lawyer for professional malpractice may be couched in either contract or tort and that recovery may be sought in the alternative.").
(86.) Id. at 1188 (Miller, C.J., concurring con·cur
intr.v. con·curred, con·cur·ring, con·curs
1. To be of the same opinion; agree: concurred on the issue of preventing crime. See Synonyms at assent.
(87.) Mallen & Smith, supra n. 6, [section] 769, 555.
(88.) Pelton v. Andrews, 74 P.2d 528, 530 (Cal. App., 2d Dist., Div. 2 1937) (an allegation that an attorney "failed to perform" may be deemed to sound in contract and not negligence).
(89.) See Busk busk
intr.v. busked, busk·ing, busks
To play music or perform entertainment in a public place, usually while soliciting money. v. Flanders, 468 P.2d 695, 697 (Wash. App., Div. 1 1970) (indicating that in an alleged contract breach, the court will look to see if the written document relied upon contains some guaranteed or promised result); Corceller v. Brooks, 347 S.2d 274, 277-78 (La. App., 4th Cir. 1977) (warning that the plaintiff in a legal malpractice action will have a difficult time establishing a breach of promise in the absence of an explicit promise in an express contract that has been breached); Pacesetter Commun. Corp. v. Solin & Breindel, P.C., 541 N.Y.S.2d 404, 406 (App. Div., 1st Dept. 1989) (stating that a "breach of contract claim against an attorney based on a retainer agreement A retainer agreement is work for hire contract intermediate between simple contracting and direct employment but essentially still contracting. One element that distinguishes it from any other service contract is that a primary consideration which the buyer purchases is an option may he sustained only where the attorney makes an express promise in the agreement to obtain a specific result and fails to do so").
(90.) Mallen & Smith, supra n. 6, [section] 8.1, 556-57. Considerations that may affect the choice between suing in negligence or contract include differing statute of limitations periods, see Linder v. Eichel, 232 N.Y.S.2d 240, 245 (Sup. Ct., N.Y. County 1962), whether a chose in action may he assigned, see Goodman & Mitchell v. Walker, 30 Ala. 482, 497 (1857), and the measure of damages sought, see Farah v. Mafride & Kormanik, P.C., 927 S.W.2d 663, 674 (Tex. App., 1st Dist. 1996).
(91.) But cf. Randall v. Bantz, Gosch, Cremer, Peterson & Sommers, 883 F. Supp. 449, 450 (D.S.D. 1995) (client specifically requested issues to he raised on appeal).
(92.) E.g. Ala. Code [section] 6-5-573 (1975):
One form of action.
There shall be only one form and cause of action against legal service providers in courts in the State of Alabama and it shall be known as the legal service liability action and shall have the meaning as defined herein.
See also Ala. Code [section] 6-5-572 (1975):
(1) Legal Services legal services n. the work performed by a lawyer for a client. Liability Action. A legal services liability action embraces any form of action in which a litigant litigant n. any party to a lawsuit. This means plaintiff, defendant, petitioner, respondent, cross-complainant, and cross-defendant, but not a witness or attorney.
LITIGANT. One engaged in a suit; one fond of litigation. may seek legal redress Compensation for injuries sustained; recovery or restitution for harm or injury; damages or equitable relief. Access to the courts to gain Reparation for a wrong.
REDRESS. The act of receiving satisfaction for an injury sustained. for a wrong or an injury and every legal theory of recovery, whether common law or statutory, available to a litigant in a court in the State of Alabama now or in the future.
(93.) Meiselman, supra n. 10, [section] 2.3, 17-18.
(94.) Busk v. Flanders, 468 P.2d 695, 698 (Wash. App. 1970) (citing William L. Prosser, The Borderland bor·der·land
a. Land located on or near a frontier.
b. The fringe: a shadowy figure who lived on the borderland of the drug scene.
2. of Tort and Contract, in Selected Topics on the Law of Torts 380 (West 1954)). See also Peter W. Thornton, The Elastic Concept of Tort and Contract as Applied by the Courts of New York New York, state, United States
New York, Middle Atlantic state of the United States. It is bordered by Vermont, Massachusetts, Connecticut, and the Atlantic Ocean (E), New Jersey and Pennsylvania (S), Lakes Erie and Ontario and the Canadian province of , 14 Brook. L. Rev. 196 (1948).
(95.) E. Allen Farnsworth, Contracts [section] 12.1,812-13 (Little, Brown & Co. 1982).
(97.) Restatement Restatement
A revision in a company's earlier financial statements.
The need for restating financial figures can result from fraud, misrepresentation, or a simple clerical error. (Second) of Contracts [section] 352 (Am. L. Inst. 1979) (stating the rule: "Damages are not recoverable for loss beyond an amount that the evidence permits to be established with reasonable certainty.").
(98.) Brian A. Blum, Contracts: Examples & Explanations [section] 18.7, 613 (2d ed., Aspen aspen, in botany
aspen: see willow.
Aspen, city, United States
Aspen (ăs`pən), city (1990 pop. 5,049), alt. 7,850 ft (2,390 m), seat of Pitkin co., S central Colo. L. & Bus. 1998) C [R]estitution is premised on the theory of disaffirmance--it treats the breach as having caused the contract to fall away ... [and] seeks to return to the plaintiff the value of any benefit conferred on the defendant under the breached contract.") (emphasis in original). See also Restatement (Second) of Contracts [section] 344 ("Judicial remedies under the rules stated in this Restatement serve to protect one or more of the following interests of a promisee PROMISEE. A person to whom a promise has been made.
2. In general a promisee can maintain an action on a promise made to him, but when the consideration moves not from the promisee, but some other person, the latter, and not the promisee, has a cause of action, .... (c) his `restitution interest,' which is his interest in having restored to him any benefit that he has conferred on the other party.").
(99.) Blum, supra n. 98, at 612 ("Although expectation damages are the primary remedy for breach of contract, they can only be recovered to the extent that the plaintiff can prove that the breach [resulted in the loss]....").
(100.) See Restatement, supra n. 97, [section] 351:
(1) Damages are not recoverable for loss that the party in breach did not have reason to foresee as a probable result of the breach when the contract was made.
(2) Loss may be foreseeable as a probable result of a breach because it follows from the breach
(a) in the ordinary course of events, or
(b) as a result of special circumstances special circumstances n. in criminal cases, particularly homicides, actions of the accused or the situation under which the crime was committed for which state statutes allow or require imposition of a more severe punishment. , beyond the ordinary course of events, that the party in breach had reason to know.
(3) A court may limit damages for foreseeable loss by excluding recovery for loss of profits, by allowing recovery only for loss incurred in reliance, or otherwise if it concludes that in the circumstances justice so requires in order to avoid disproportionate compensation.
(101.) See Blum, supra n. 98, at [section] 18.6.4, 607 ("There must be a link between the breach and the loss. Causation is not usually an issue when direct damages are concerned ... [h]owever, consequential damages are by definition more remotely connected to the breach, and when they are claimed, it must be established that they were indeed a consequence of the breach.") (emphasis in original).
(102.) See supra pt. III(C). Most courts require a plaintiff to prove that "but for" the attorney's negligence, the case would have succeeded on appeal; a minority hold that merely defaulting on a plaintiff's claim is itself actionable. See also Mallen & Smith, supra n. 6, at [section] 8.4, 581 ("The prevailing rule is that an attorney's negligence need not be the sole cause of the client's loss. If the wrongful conduct Noun 1. wrongful conduct - activity that transgresses moral or civil law; "he denied any wrongdoing"
actus reus, misconduct, wrongdoing
activity - any specific behavior; "they avoided all recreational activity" was a substantial factor, it need not be the sole proximate cause.").
Steven Wisotsky, Professor of Law, Shepard Broad Law Center Shepard Broad Law Center, founded in 1974, is the law school of Nova Southeastern University. The Law Center is housed in Leo Goodwin Sr. Hall, located on Nova Southeastern University's main campus in Davie, Florida and is named after university founder Shepard Broad. , Nova Southeastern University History
Originally named Nova University of Advanced Technology, the university was chartered by the state of Florida in 1964 as a graduate institution in the physical and social sciences. ; A.B. University of Pennsylvania (body, education) University of Pennsylvania - The home of ENIAC and Machiavelli.
Address: Philadelphia, PA, USA. , J.D. University of Miami This article is about the university in Coral Gables, Florida. For the university in Oxford, Ohio, see Miami University.
The University of Miami (also known as Miami of Florida, UM, or just The U , LL.M LL.M Legum Magister (Master of Laws) . Yale University Yale University, at New Haven, Conn.; coeducational. Chartered as a collegiate school for men in 1701 largely as a result of the efforts of James Pierpont, it opened at Killingworth (now Clinton) in 1702, moved (1707) to Saybrook (now Old Saybrook), and in 1716 was .