In Bhama v Garves, unpublished opinion per curiam in the Court of Appeals, issued May 27, 2017 (Docket No. 313721), the Court of Appeals found an appeal regarding legal malpractice by an in pro per psychiatrist to be frivolous. A claim regarding the psychiatrist's termination of employment from the State of Michigan was the underlying case to the legal malpractice suit. The defendant attorney was retained by the psychiatrist and successfully represented her in the Court of Appeals and in the Supreme Court. After the case was remanded to the Circuit Court, the psychiatrist's claim was again unsuccessful, and the defendant attorney again represented the psychiatrist in the Court of Appeals and Supreme Court. When the second appeal was unsuccessful, the psychiatrist sued the attorney for breach of contract and legal malpractice. The trial court summarily dismissed her claims on a motion filed by the defendant attorney.
Of particular interest is the Court of Appeals' discussion of why the defendant attorney's appellate representation could not form the basis of a breach of contract or legal malpractice claim. In addition to failing to preserve the specific claim, the Court of Appeals held that it failed to see how the defendant attorney not advising the psychiatrist that her second set of appeals would be unsuccessful could be the basis of either her legal malpractice or breach of contract claims. The Court of Appeals first noted that “[t]he purpose of the contract was to pursue these appeals; therefore, it can hardly be a breach to do so.” Regarding the legal malpractice claim, the Court of Appeals held that the psychiatrist could not prove an essential element of her claim: that the attorney's mistake was the factual cause of her failed employment termination claim. The Court of Appeals did suggest that if the appeals in the underlying case had been found frivolous, “there might be an argument that defendant bore some responsibility.” The Court of Appeals, however, concluded that these claims, along with some other poorly articulated arguments by the psychiatrist, were without merit.
Interestingly, the Court of Appeals found her legal malpractice appeal so without merit that it ruled the appeal to be frivolous, awarding the defendant attorney fees and costs – later ordered in the amount of $1300. Bhama v Garves, June 27, 2014COA Order. The Court of Appeals, therefore, made clear that an appellate attorney cannot breach a contract by pursuing an appeal that he has been retained to pursue and that the case-within-a-case element of a legal malpractice claim is particularly challenging to satisfy regarding appellate legal representation.
Labels: appellate, appellate advocacy, appellate malpractice, attorney's fees, Bhama, Bhama v Garves, breach of contract, costs, Court of Appeals, factual cause, frivolous, Garves, legal malpractice, malpractice