Articles Posted in Legal Malpractice

In Pederson v. Barnes the Alaska Supreme Court was faced with the issue of the circumstances under which a guardian’s lawyer is liable to the ward for  the guardian’s wrongdoing.

Aiken became Barnes’ guardian after Barnes’ parents died.  (Barnes was a minor at that the time of their death.) Pederson represented Aiken in the proceedings to become Barnes guardian.   In about two years the $111,000 estate was almost entirely dissipated.

Barnes sued Aiken and Pederson and another lawyer working with Pederson.  The lawyers moved for summary judgment, arguing that they did not have any actual knowledge of wrongdoing by Aiken.  The motion was denied, and the jury returned a verdict against Pederson for compensatory and punitive damages.

When a lawyer is sued for negligence in conjunction with the appellate process who decides whether or not the appeal would have been successful, judge or jury?

The judge makes the decision, according to the Illinois Supreme Court.  The Court said that "the issue of proximate cause in an appellate legal malpractice action is  inherently a question of law for the court and not a question of fact for the jury."

The case is Governmental Insurance Exchange v. Judge, Docket No. 100668 (Ill. S.Ct. May 18, 2006).  Read it here.

The Texas Supreme Court has ruled that executors of an estate can sue the decedent’s attorney for malpractice for negligently providing estate planning advice.

In Belt v. Openheimer, Blend, Harrison & Tate, Inc., No. 04-0681 (May 5, 2005), the executors claimed that poor estate planning cost the estate $1.5M that could have been avoided by competent estate planning. The defendants argued that they owed no duty of care to anyone outside the attorney-client relationship, relying on a prior Texas decision which did not permit trust iciaries to sue a lawyer who drafted a trust which was set aside as invalid. (Noe: Texas is in the minority in this position. “In the majority of states, a beneficiary harmed by a lawyer’s negligence in draftting a will or trust may bring a malpractice claim againt the attorney, even though the beneficiary was not the attorney’s client.”

Under these facts, however, the Texas Supreme Court found that a duty existed. Noting that Ohio, Virginia, Oregon, and Illinois permit such actions, the Court said “estate-planning malpractice claims seeking recovery for pure economic loss are limited to recovery for property damage. … Therefore, in accordance with the long-standing, common-law principle that actions for damage to property survive the death of the injured party, we hold that legal malpractice claims alleging pure economic loss survive in favor of a deceased client’s estate, because such claims are necessarily limited to recovery for property damage.”