Speaker Law
Blog

Labels: appeal, appeals, Insurance, lansing, legal malpractice, Michigan, Michigan Appeals, Sandra Lake, Speaker Law Firm

---

The Court of Appeals held that an attorney could not be sued for legal malpractice, even if the attorney missed the deadline for filing a Claim of Appeal.  The Court of Appeals in MacDowell v Houghtaling, unpublished per curiam opinion, issued August 23, 2016 (Docket No. 328902), reasoned that the plaintiff could not establish the element of proximate cause based on the Court of Appeals' prior denial on a delayed application "for lack of merits in the grounds presented."  In reaching this holding, the Court is giving attorneys who commit legal malpractice a free pass - so long as they file a delayed application. The malpracticing attorney could even intentionally tank the case in the application and the leave denied order would forever insulate the attorney from liability.

The Court of Appeals reached this holding even though:

•  85% of all applications are denied.
• The Court of Appeals employs standard language for leave denied "on the merits" of the grounds presented in all denials except those that arise from interlocutory appeals.
• Applicant undergo a different review process than appeals by right.
• Oral Argument is not permitted on Application, thus denying the attorney an opportunity to advocate for the case.
• The Court of Appeals does not have the trial court record when it decides an application, relying only on documents supplied by the Appellant.
• Applications are decided by 3 judges from single district while Appeals by right are decided by a random draw of 3 out of 27 judges of the Court.

Stay tuned to see if this case sparks the interest of the Michigan Supreme Court.

Labels: appeals, application for leave to appeal, Court of Appeals, Delayed Application, Lack of Merits, legal malpractice, michigan court of appeals, Muskegon County

---

It is not very often that a COA opinion incorporates a visual aid. We see it few and far between, usually with an attached plat or map in a real estate case. The COA issued an opinion yesterday, however, in Nagle v Hertz Schram (Docket 320137), which inserts an image of the actual attorney invoices directly into the body of the COA opinion. So while normally the Court would spend a lot of time describing what the invoice looks like, here they were able to using fewer words because the reader of the opinion received the full impact of the documentary evidence in the opinion. And for those of you who are interested, the issue on appeal was whether plaintiffs filed their suit within the two statute of limitation, which turned on whether the law firm continued to represent the case by doing work for them (and billing it) after the date that the representation allegedly ended. The Court of Appeals held, based in part on these invoices, that the law firm's representation continued. The Court of Appeals cited Supreme Court authority for the proposition that a legal malpractice case begins to accrue "on the last day of professional service.” Gebhardt v O’Rourke, 444 Mich 535, 543; 510 NW2d 900 (1994). If the tasks performed were merely ministerial, then they don't count against defendant for accrual. But here the Court of Appeals concluded that the law firm's argument that the tasks were ministerial were directly counter to the exhibits (the invoices) the firm provided in the lawsuit.

Labels: accrual, appeal, attorney invoices, Court of Appeals, Docket 321037, Hertz Schram, legal malpractice, limitations period, statute of limitations, visual aid

---

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

---

In a recent opinion, the Michigan Supreme Court in People v Trakhtenberg, __ Mich __; __ NW2d __ (2012)(Docket No 143386) addressed a very narrow issue (among many larger issues) - the use of collateral estoppel by the prosecution to prevent a criminal defendant from challenging his trial counsel’s effectiveness. Defendant Trakhtenberg, after being convicted by the trial court and losing his direct appeal, filed a civil lawsuit alleging legal malpractice. This was summarily disposed of, by motion, and his appeal denied. In his criminal case, Defendant Trakhtenberg had filed a motion for relief from judgment which was denied by both the Trial Court and the Court of Appeals. However, the Supreme Court retained jurisdiction while remanding back to the COA to remand to the Trial Court for a Ginther hearing. Based on this hearing, the Trial Court ruled that Defendant’s counsel was ineffective and ordered a new trial, however, the COA reversed. The Supreme Court granted leave. The Supreme Court distinguished this case from cases like People v Gates, 434 Mich 146 (1990) and Yates v United States, 354 US 298 (1957) by noting first and foremost, it was the prosecution and not the Defendant asserting collateral estoppel “to estop the Court’s full review of defendant’s claim that he received ineffective assistance of counsel.” Ultimately the Court held that the COA erred when it applied the doctrine of collateral estoppel to Defendant Trakhtenberg’s ineffective assistance of counsel claim because the defendant did not have a “fair and full opportunity to litigate his claim in the malpractice proceeding.” While a narrow holding, this is still a potentially big win for similarly situated defendants.

Labels: appeal, appellate review, collateral estoppel, criminal appeal, ginther hearing, legal malpractice, michigan supreme court, Oakland County, offensive collateral estoppel, prosecutor, trakhtenberg

---

In Shannon v Foster Swift Collins & Smith, P.C., former clients brought a legal malpractice suit against the law firm and attorney who represented them in a real estate matter. The circuit court granted the law firm's motion for summary disposition on the ground that the attorney-judgment rule should shield the attorney from malpractice because he gave legal advice in good faith, even though the advice may not have been correct.


The Court of Appeals disagreed with the circuit court and reversed its grant of summary disposition. The Court stated that regardless of whether the attorney based his advice on well-recognized Michigan law, the standard of care still required him to function as an advocate for his clients. In this case, the attorney’s firm represented every bank involved in the real estate transaction, and failed to disclose one of the potential conflicts of interest to his clients. The attorney then convinced his clients to go through with the deal by stating that they would be held to the rent payments under the unsigned contract regardless of their actions. The Court of Appeals held that whether the attorney was acting in a manner consistent with the fiduciary standard of care depending on what a reasonable attorney would have done under the circumstances – a determination that must be made by the jury. Based on the circumstances of this case, the Court reversed and remanded the matter to the circuit court to be tried before a jury. [Judge Fitzgerald would have affirmed the circuit's decision].

Labels: Conflict of Interest, Inghamn County, legal malpractice, MCR 2.116, Michigan

---

Recently, the Court of Appeals took on an interesting battle between attorney and former client in Seyburn v Bakshi (Docket No. 272903), where Law Firm was suing its Former Client for unpaid legal fees. Law Firm represented Former Client in multiple cases and lost the trial court litigation and one appeal for Former Client. After paying $92,000 in legal fees, Former Client ceased payment and eventually accrued over $55,000 in legal fees owed to Law Firm. The unpaid fees, not surprisingly, resulted in conflict between the two men and Law Firm moved to withdraw as Former Client’s counsel. The motion to withdraw was granted in September 1993.

In October 1993, Former Client requested his file from Law Firm. Law Firm had its paralegal review the file and charged Former Client $182 to review the file and $250 to copy the documents out of it. Former Client proceeded to file a legal malpractice suit against Law Firm in 1995 which was dismissed because it was barred by the two year statute of limitations. The final straw in this heated battle between the two men took place when Law Firm filed suit to recover the outstanding legal fees owed by Former Client. Law Firm filed suit in October 1999 while the legal malpractice suit was still ongoing. Former Client claimed the suit was barred by the six-year statute of limitations. Law Firm claimed that because it had done legally billable work for Former Client in October 1993 (reviewing and copying the Former Client file) that its claim was within the six year limitations period.

The Court of Appeals took the opportunity in this case to settle the dispute about when the attorney client relationship properly ends. The Court reasoned that the attorney client relationship is not extended merely because the “attorney renders a compensable, but ministerial, service, like returning a Former Client’s file, as occurred in this case.” In this case, the date the attorney client relationship ended was September 1993 (when the trial court granted Law Firm’s motion to withdraw), which is the accrual date for the six year statute of limitations.

The Court made an analogy in this case to legal malpractice, noting that the performance of the ministerial task of copying and returning the file to the client would not extend the accrual date for the Former Client’s legal malpractice suit. It can be inferred from this decision that the accrual date (at least for litigation matters) is the same for legal malpractice and collection of unpaid legal fees–the date of the termination of services. The dissenting opinion discusses this issue.

Labels: breach of contract, Legal fees, legal malpractice, Michigan, ministerial task, Oakland County, statute of limitations

---