The first half of the year generated some interesting legal malpractice opinions from courts across the nation. I’ll take a couple of hours this morning to tell you about three of them.
In a matter of first impression the Supreme Court of South Dakota held that a lawyer had a professional duty of care to notify a client of an act, error or omission that is reasonably expected to be the basis of a malpractice claim. Robinson-Podoll v. Harmelink., Fox & Ravnsborg Law Office, 939 N.W.2d 32 (2020). In this matter the attorney was alleged to have missed the deadline for filing a personal injury claim. But the court also held that summary judgement was improper as there were questions of fact as to whether or not the malpractice attorney timely filed the malpractice claim.
In another case of first impression, the Supreme Court of Iowa held that a legal malpractice claim could not be assigned to a non-client that was previously adverse to the client the attorney was representing. In this matter judgement creditors/assignees were trying to bring a legal malpractice claim against the judgement debtor’s attorney. Gary v Oliver, 943 N.W.2d 617 (2020). The Supreme Court based its decision on a variety of public policy concerns, stating in part:
“The Grays’ acquisition of Hohenshell’s chose in action by execution, levy, and sale effected an involuntary assignment of Hohenshell’s legal malpractice claim… As involuntary assignees of Hohenshell’s legal malpractice claim, the Grays also took the assignment subject to any additional limitations on the legal malpractice claim that might render the involuntary assignment void, voidable, or otherwise not enforceable. See 6A C.J.S. Assignments§ 133, at 494. These additional limitations include, among others, those inherent in the nature of the chose in action at issue. 6. The question presented is thus whether the chose in action for legal malpractice is subject to a limitation that renders the assignment unenforceable… While the question presented in this appeal is a question of first impression for our court, numerous other jurisdictions have addressed the question of whether a claim for legal malpractice is subject to assignment and prosecution by an assignee… The relevant cases identify a surfeit of reasons for concluding a claim for legal malpractice is not subject to assignment and prosecution by an assignee: (1) assignment divests the client of the decision to sue; (2) assignment imperils the sanctity of the attorney-client relationship; (3) the assignment erodes the attorney-client privilege; (4) assignment compromises zealous advocacy and the duty of loyalty; (5) assignment degrades the legal profession and the public’s confidence in the court system by sanctioning an abrupt and shameless shifting of positions; (6) assignment restricts access to legal services by the poor or indigent; and (7) assignment creates a commercial market for legal malpractice claims.” Id. at pg. 623-24.
Finally, in Binn v. Muchnick, Golieb & Golieb, P.C., 180 A.D. 3d 598 (2020) the Supreme Court of New York came to the procedurally curious conclusion that “documentary evidence” could be so conclusive of a defense as to support and justify a motion to dismiss. Id at pg. 598-99.
Cosgrove Law Group, LLC is willing to assist clients with substantial meritorious claims for legal malpractice. While we do not relish the existence of such claims, we believe law firms have an ethical duty to prosecute them if they have sufficient experience and acumen to do so.