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The Verdict Is In

Lawyers Suing Lawyers

Tony Francis, MD, Orthopaedic Surgery, 05:47PM May 1, 2013

There was enough information at the New Orleans meeting of the Professional Liability Attorneys to write four or five interesting posts. All the speakers were great, and knowledgeable, covering lots of useful material.  This is unusual for both medical and legal meetings.  As promised in the last post,  this one will pertain to the topic of lawyers suing lawyers for legal malpractice.  From reading the 'Net, I had an inkling this was a growing area of the law. But I didn't know much about it.  Based on the meeting, it would appear suing lawyers for legal malpractice is about where medical malpractice was in the 1960s.  There is a lot more to come, I would bet.  These cases typically involve missing a filing date, not entering the correct plea or jury charge, or not researching the case.  An example was given of a Florida case where someone bought two adjacent lots for several million dollars, only to find a new house could not be built across an existing lot line.  Someone didn't research the building codes.  Oops!  

I didn't realize that it is necessary to prove the underlying case was winnable.  This is called the "case within the case."  Here is where suing lawyers gets tricky and complicated.  For instance, slip and fall cases in contributory negligence states like North Carolina, Maryland and Alabama are almost impossible to win from a legal malpractice standpoint.  This is because showing that the plaintiff contributed 1% to the underlying proximate cause of the injury will lead to dismissal of the case.  That is the old contributory negligence rule, which used to be US Common Law.  Most states adopted the more lenient comparative negligence standards in the 1960s and 1970s.  In those cases, the relative contribution from plaintiff and defendant are weighed by the trier of fact. 

The underlying case is also a problem in medical negligence cases since about 80% of these will be either dismissed, lost or settled for a minimal amount.  So it can be difficult to bring a suit against a lawyer for mishandling a medical malpractice case, since the chances of winning the underlying case were not good to begin with. 

The underlying case also has to be one that had collectable damages. 

New Jersey is the easiest state to sue a lawyer, apparently.  Pennsylvania quite difficult. Rules vary by state.  

I was discussing this with a federal judge in California today.  He is an old trial lawyer who used to try bad faith insurance cases.  He indicated it was necessary to prove the case within a case there, too.  He opined, sadly, there were several lawyers he could refer for legal malpractice.  It seems to me that there are a few.  But I don't know much about it.  So don't take my word for it. 

Here is a nice summary of the "case within the case" I found online.  It is abridged.

The Case-within-the-Case in Litigation Malpractice

Litigation malpractice plaintiffs carry a unique burden. In addition to having to prove that its lawyer was negligent, the plaintiff has to prove that it would have prevailed in the underlying case, which is commonly referred to as the “case-within-the-case.” The case-within-the-case raises complex evidentiary and procedural questions because the underlying case was often litigated in a different court under different evidentiary standards and with a different burden of proof. This article identifies some of the more complex issues that frequently arise when litigating the case-within-the-case and provides some general guidance to lawyers seeking to advise their clients on this unique and complicated aspect of litigation malpractice.

Who decides?

Legal malpractice claims are typically tried in front of a jury. While fact questions, such as proximate causation, are generally reserved for the jury, the jury in litigation malpractice cases may not be permitted to decide the key factual question of proximate causation. In some cases, causation is a question of law that must be resolved by the judge. In other words, because the underlying trial court decided the relevant issue as a matter of law, the trial court in the malpractice action should do the same when resolving the case-within-the-case.

Additionally, when proximate causation turns on discretionary decisions that would have been made by the judge in the underlying case, proximate causation should be decided by the judge rather than the jury in the malpractice action. The question is not what the specific judge “would have done” in the case-within-the case but what a reasonable trial court judge “should have done” in the underlying action but for the alleged malpractice. What a judge should have done is a question of law that should be answered by the court rather than by a jury.

How much needs to be decided?

A question that is often raised is whether it is necessary to retry the entire case. The answer to this question depends on the nature of the alleged malpractice.  The underlying case may be relitigated only to the extent necessary for determining whether there is a sufficient causal connection between the alleged acts of malpractice and the malpractice claimant’s injury. If the alleged malpractice was the failure to file a timely complaint, the entire case would need to be litigated because what would have occurred in the absence of the malpractice is a complete unknown. Alternatively, if the alleged malpractice occurred at the end of the trial, such as by failing to tender the correct jury instruction, there would be little need to retry the case-within-a-case because the trial record would exist and the parties would likely be bound by what actually occurred to the extent it was unrelated to the alleged negligence. In practice, legal malpractice plaintiffs tend to allege numerous negligent acts, which tend to put much, if not all, of the underlying legal proceedings at issue.

What issues can be raised?

Defendants in malpractice actions often seek to raise additional defenses that were not raised in the underlying proceeding. Courts from some jurisdictions have held that malpractice defendants can only raise issues that are causally connected to the alleged malpractice or damages. There are certain situations, however, when defendants can raise new issues. They can do so if they can prove that the defense would have been raised in the absence of the alleged negligence. In the case-within-the-case, statements made by the attorneys may be admissible in the negligence case but may be hearsay in the case-within-a-case.


The case-within-a-case is a unique aspect of legal malpractice that requires one court to essentially decide two cases–the underlying case and the negligence case. Not surprising, the dual nature of this proceeding raises many complicated and interesting evidentiary and procedural issues. Practitioners who represent either plaintiffs or defendants need to be aware of these unique issues to ensure that they don’t unwittingly make an error that could lead to an even more complex situation: “the-case-within-the-case-within-the-case.” Indeed, if legal malpractice occurred in a legal malpractice action, the trial court would have to try three cases–the negligence case against the lawyer, the underlying negligence case against the underlying lawyer,and the original case-within-a-case.

My new on-line pal whom I met at the meeting, Ben Wasserman from New Jersey has a great compendium of legal malpractice cases which are available from the site he oversees.  Some law students from Hofstra help write up the summaries.  Here are some representative cases of legal malpractice from the site. 

New York Railroad Personal Injury

Procedural Defect Yields Failure to Timely Commence an Action

Wilk v. Lewis & Lewis,  2010

NY: Underlying personal injury action

Student Contributor: Zahava Schwartz

Facts: The plaintiff was injured while repairing railroad cars. He hired defendant lawyers to handle this case against his employer. His lawyers did not commence the suit on time and he was time barred and his suit was therefore dismissed. When the lawyers (defendants) commenced a Labor Law and common-law negligence action on behalf of plaintiffs they used the same index number that had been used in the pre-action discovery proceeding. The action was dismissed because in New York, failure to purchase a new index number rendered the case a nullity since it was never properly commenced. Plaintiff argues that his lawyers did not commence his labor law and common law negligence case in a timely manner causing its dismissal. The lawyers argued that even if they had commenced his suit on time he would not have succeeded. The lawyers said that their negligent behavior was not a proximate cause of his loss because successor counsel did not file a notice of appeal and this was an intervening cause to their negligence which caused the dismissal.

Issue: Did the lawyers fail to act with ordinary reasonable skill by allowing the case to be dismissed and was the lawyer’s negligence the proximate cause of plaintiff’s loss?

Rule: Yes. In a legal malpractice case the plaintiff must prove that the lawyer did not act with ordinary reasonable skill that a member of the legal community would have. Also, that this breach of attorney-client duty was a proximate cause of the client’s loss. In order to win the legal malpractice case the plaintiff must show that but for the lawyers’ action he would have succeeded on the merits of the case. The lawyers intervening factor argument was dismissed since they did not prove successor counsel had enough time to adequately protect plaintiff’s rights. The lawyer’s failure to commence the action on time would be enough to show they did not exercise the ordinary reasonable skill. The court denied lawyers’ request to dismiss the complaint and gave plaintiff partial summary judgment.

Lesson: In a malpractice claim not only does the plaintiff need to properly plead the substantive elements of the claim-- that the lawyer did not act with ordinary reasonable care that that the breach of duty is the proximate cause of the clients loss, but must also comply with the procedural requirements of how to properly commence the action in a timely manner.

Maryland Failure to Diagnose Breast Cancer, Settled For Less Than Expected (2010)
Joint Liability for Joint Representation: Yes or No?

Blondell v. Littlepage, (2010).

Underlying Joint Representation of Medical Malpractice Claim

Facts: Six months after Lois Corbin (“Client”) had a mammogram performed by Dr. Amile Korangy (“Doctor”) she detected a lump in her breast and scheduled an appointment with her gynecologist, Dr. Dee Hubbard (“Hubbard”). Hubbard scheduled Client for a second mammogram on January 19, 2000 and a sonogram on the 21st. Both tests indicated malignancy and a biopsy later confirmed that Client had cancer. Believing that Doctor had misread her mammogram, Client retained William J. Blondell “Co-counsel”) in May 2000 to purse an action for medical malpractice. Co-counsel filed the claim on January 21, 2003 and, the following year, referred the case to Diane Littlepage (“Attorney”). A fee-sharing agreement was executed, stating that they agreed to divide the contingency fee equally. Thereafter, Co-counsel had no further contact with Client and did not actively participate in the case. Doctor unsuccessfully asserted a statute of limitations motion, but during a pre-trail settlement conference, the judge advised Attorney that Doctor’s argument would likely prevail at trial or on appeal. Attorney reported these matters to Co-counsel, but the two did not discuss negotiations further. After continued discussions with Attorney about factors influencing the settlement (including the delayed filing of the claim by Co-counsel), Client settled the claim for significantly less than the initial demand. Attorney remitted half of the fee to Co-counsel. Co-counsel then filed claims against Attorney, alleging
that her failure to communicate with him and her communications with Client about his untimely filing caused him to suffer economic and non-economic damages.

Issue: Whether a fee-sharing agreement may give rise to actionable contract and tort duties between co-counsel, other than those related to the fee itself.

Ruling: No. Because there was no breach of the terms of the fee-sharing agreement and the agreement to share equally in the profits failed to establish a joint venture, Attorney could not be liable to Co-counsel for breach of contract. The agreement simply called for an equal division of the fee and stated  that Attorney would take “primary responsibly” for the representation and perform services “as requested” by Co-counsel. Attorney split the fee equally and took responsibility of the case. Co-counsel made no requests of Attorney regarding the settlement negotiations and Attorney was not obligated to consult or communicate with Co-counsel, like she would be under the terms of a partnership. Furthermore, Attorney could not have tortiously interfered with Co-counsel’s contractual relationship with Client because tortious interference requires interference from a third party and Attorney was, by virtue
of the fee-sharing agreement, a party to the contract.

Lesson: When entering into a fee-sharing agreement with an attorney to whom you have referred a case, if you are concerned about his/her settlement negotiating skills and/or tactics, it may be beneficial to maintain an active role in the case.

New Jersey Wrongful Death - Does the case need to be concluded before an action can be brought against the attorney? 

Legal Malpractice: Exception to the Entire Controversy Doctrine

Donohue v. Kuhn, (N.J. 1997)

NJ Underlying case: tort/personal injury/wrongful death

Facts: Plaintiffs retained Defendant attorney to represent them in a wrongful death and survivorship suit. The attorney failed to file the cases during the applicable  time period.   Plaintiffs secured another attorney after the statute of limitations passed, but the suit for wrongful death was dismissed for not being filed within the statute of limitations period. While the survivorship claim case was on going, the plaintiffs brought this malpractice suit.

Issue: Does the "entire controversy doctrine" prevent the Plaintiffs from suing Defendant attorney because they failed to add a legal malpractice claim against Defendant attorney in the survivorship case that was still before the trial court?

Ruling: In reversing the Appellate Division, the New Jersey Supreme Court held that the entire controversy doctrine did not require that the Plaintiffs had to amend their complaint to add an attorney that allegedly committed legal-malpractice claims in the survivorship suit to that case for their suit against the Defendant attorney to go forward.

Lesson: A plaintiff's failure to add an action against an attorney to an ongoing case in which it is alleged that the attorney committed an act or acts of negligence that harmed the plaintiff is not grounds for dismissing the case. Legal Malpractice is an exception to the entire controvery doctrine in NJ.

Editor's Note: This case was one of three on excepting legal malpractice from the entire controversy doctrine decided by the New Jersey Supreme Court on the same day. The case of Olds v. Donnelly, 150 N.J. 424 (PDF)was the case in which the court set down at length the unstated reasoning behind its decision in this case, Donohue v. Kuhn.

Kentucky - Judge testified in legal malpractice case concerning the underlying worker's comp case. 

Judge As A Witness Not Permitted

Marrs v. Kelly, (Ky. 2003)

KY: Underlying Workers Compensation

Facts: Mars injured her back at work and brought a workers compensation claim. Mars was represented by Kelly. She received a 10% occupational disability settlement. Several years later she injured her back again and received the same settlement. She was then laid off of work because she could no longer do her job. She reopened the second case seeking total disability but was only awarded an additional 10%. She then brought a claim against Kelly for negligent misrepresentation. Mars claimed that Kelly failed to introduce expert testimony that could have resulted in her receiving total disability benefits. Mars objected to the introduction of this testimony. Kelly introduced testimony from the administrative law judge stating that the addition of the expert reports would not have changed his decision. The circuit court granted summary judgment to Kelly. Mars appealed and the court of appeals affirmed. The case was then brought to the Supreme Court.

Issue: May the testimony of the original judge in the underlying case be used in the legal malpractice case?

Ruling: No, the administrative law judge should not have been allowed to testify. Allowing him to testify confuses “the role of an objectively reasonable judge with the views of the particular judge and resulted in application of the wrong standard for determining whether the legal malpractice case should have been submitted to the trier of fact.”

Lesson: The subjective standard considers what the presiding judge would have awarded had the attorney not been negligent while the objective standard considers what a “reasonable judge” would have awarded under the same or similar circumstances. Kentucky adopted the objective standard.

Florida requires clear and convincing evidence for fraud on the court 

Cherubino v. Fenstersheib and Fox, P.A., (Fla. App. 2006)

FL: Underlying Automobile Action in Tort

FACTS: Anthony Cherubino was involved in a car accident and he and his wife Lucy Cherubino hired Fenstersheib and Fox to represent them. After filing suit, the trial court dismissed the action for failure to comply with discovery orders. Following this dismissal, Fenstersheib and Fox refiled the claim and subsequently withdrew as counsel to the Cherubinos. Upon refilling, that claim was dismissed as well. The Cherubinos then filed the current claim for legal malpractice alleging that malpractice was committed by not complying with the discovery orders of the court. This failure, they claim, caused the Cherubinos to be unable to recover for the automobile accident. Fenstersheib and Fox countered with a motion to dismiss alleging the Cherubinos were committing a fraud on the court. They further cited several inconsistencies in the Cherubinos statements about the accident. The court granted the defendant’s motion, with prejudice, and found that the “case is permeated by fraud committed by Plaintiffs Anthony Cherubino and Lucy Cherubino who, the record reflects, have committed a pattern of deceit calculated to interfere with the judicial system’s ability to fairly adjudicate this matter”.

ISSUE: Did the Cherubinos commit a fraud on the court?

RULING: No, committing a fraud on the court requires a very high standard to be met-clear and convincing evidence. The court held:

    “the evidence available to the trial court simply did not satisfy the stringent standards justifying dismissal for fraud on the court. First, the majority of the inconsistencies highlighted by Fenstersheib and Fox occurred in the underlying case, not in the legal malpractice action, so they can hardly be said to constitute fraud on the court in the legal malpractice action. Second, the few inconsistencies which did occur in the legal malpractice action do not convince us that the Cherubinos "...set in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party's claim or defense."  

A few inconsistencies, which the Cherubinos contend were not knowing deceptions, simply do not demonstrate the blatant or extreme conduct necessary to prove fraud on the court.

LESSON: Absent clear and convincing evidence, the burden to  establish a fraud on the court has not been met.

About This Blog

We will discuss current legal issues related to the practice of medicine.

Disclosure: Tony Francis, MD, JD, has disclosed no relevant financial relationships.

  • Tony Francis

    Graduated with MD degree in 1977, performed residency in Orthopedic Surgery,  Graduated with a JD and LLD in 1987. Graduated with Master of Science in Quantum Mechanics and Computational Chemistry in 1999.

    Director of  "Legal Medicine Research" and writes advisory reports for US Federal Judges. 


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