phoenix personal injury claim

Panzino v. City of Phoenix   Laura Panzino (pedestrian) was hit by driver. She hired David Appleton.    Appleton filed two P/I claims. He did not pursue claims. Claims were dismissed.    Panzino hired a new attorney – Sought to have claims reinstated. Trial Court reinstated one. Appellate Court reinstated both. Appeal. Arizona Supreme Court   No reinstatement for either. Rule 60(c) {Like Fed Rule 60(b)}: Allows relief if:       Mistake, inadvertence, surprise or excusable neglect New evidence, could not have been discovered earlier Fraud, misrepresentation, misconduct of adverse party Void J J satisfied, released, discharged, prior J reversed, etc. or Other reason justifying relief from J.   Not one of first 5 Justifies relief   Why doesn’t court think relief appropriate? Why not adopt positive misconduct rule? Positive Misconduct Rule   Exception to general rule that client is bound by attorney’s actions. Does not bind client if so extreme that amounts to positive misconduct.    Client must be “relatively free from negligence.” Attorney conduct “obliterates the existence of the attorney-client relationship.” Negligence should not be imputed to client.  Little acceptance of rule. Why does court reject rule?    Cannot use for areas already defined. Cannot negate a limitation through this rule. Here, rule allows avoidance for excusable neglect. If also allow for inexcusable neglect, would defeat requirement in rule. What about argument that excuse only for especially egregious conduct, not just neglect?  Note: Dissent says not neglect at all – abandonment. Argument not logical Excusable Neglect Inexcusable Neglect Over-the-top inexcusable Neglect Allow relief Don’t allow relief Allow relief Other reasons no relief:  Agency Law – Client is bound by acts of attorney – Actual or Apparent authority   Why is attorney agent? Did this attorney abandon role as agent?    Need finality of Js – public policy Don’t encourage to go to extremes to “save” client – Would they do this??? Rule illogical and against long-standing interpretation. Relief for client?    Sue for malpractice. Relief if excusable neglect. What’s that? Client protections funds (note 7) – Texas: Client Security Fund:       No legal right to fund Must file grievance first, and complete process. For clients who have lost money or property due to dishonest attorney conduct (NOT malpractice) Payments made once a year. NO attorney required. No attorney can charge fee. Maximum payment – $30,000. Ethical Duty of Competence  Rule 1.1 – Lawyer shall provide competent representation  Legal knowledge, skill, thoroughness, preparation    Rule 1.3 – lawyer shall act with diligence and promptness Did attorney in Panzino violate these rules? What is the relationship between these rules and a claim for malpractice?  See Scope – Not basis for malpractice – not litigation tool – But can go to standard of care. Togstad v. Vesely, Otto, Miller & Keefe  Joan Togstad met with Miller (D) regarding possible medical malpractice case against hospital and doctor.   Paralysis of John Togstad due to alleged negligence. Met for 45-60 minutes.  Miller did not take case.  Thought they did not have a case?? (that firm wanted??)   Statute of limitations ran. Togstads sued Miller and firm for legal malpractice.  Ps won – awarded damages. Affirmed. Malpractice elements     Duty (attorney-client relationship) Breach of duty (negligence/breach of K) Proximate cause Damages – but/for acts (non-acts) would have won (medical malpractice case). What is the question in this case?  Duty to Ps:  Was there an attorney-client relationship?   Did Ps hire D? Was D paid for any advice by Ps?    Was it reasonable for Ps to rely on D? Does D have a duty to anyone who walks in the door? Did D give P advice?   Who do we believe here? Who wins if evidence conflicting? Breach of Duty   Wrong answer? Failure to do research?  Does he have to do research if he doesn’t want to take the case? Again, is this required? He says he told her. Care, skill, diligence and knowledge of reasonably careful and prudent attorney in jurisdiction – same or similar circs.  Failure to advise of statute of limitations?    What is standard of care?   How do you prove this? Breach of duty continued  Expert witnesses to prove or disprove  Why did his own witnesses undercut him? CYA letter    What could D have done differently?  Provides proof that he told client. Maybe avoids problem in first place – brings point home to client. Causation and Damages  Causation?  Did not pursue due to “advice.” Case within a case     Damages?  Have to prove loss. If would have lost anyway, no recovery. Different circumstances. Malpractice Insurance    Are attorneys required to carry it? Should they be? Should they be required to disclose that don’t carry malpractice insurance? Leak-Gilbert v. Fahle  Attorney Fahle drafted will for Edward Leak.    Some of grandchildren not mentioned in will. Caused estate to be distributed through intestacy. Intended beneficiaries got less than would have.    Intended will beneficiaries sued Fahle. She moved for SJ. Fed Ct certified Qs to Oklahoma Supreme Court . . . Certified questions  Does attorney have a duty to independently investigate to confirm client info?   Did the client ask her to do this? Should she investigate without request?  Does liability extend to intended beneficiaries?   Tort liability? Contract liability? Liability to intended will beneficiaries     Most courts find duty to beneficiaries Tort  Attorney–client relationship creates duty Third party beneficiary Contract  Exception to usual rule that no liability to nonclients   Why usual rule? Why exception? Lucas v. Hamm Lucas (intended will beneficiary) write will Hamm pay Testator Barcelo v. Elliott   923 S.W.2d 575 (Tex. 1996) Drafted will and set up trust.   Trust was never funded. Intended beneficiaries sued. Proof problems. Why wasn’t trust funded?  No liability to intended beneficiaries    Strong dissent – should limit to facts. Other liability issues    Liability for negligent misrepresentation Evaluation for use of third parties Breach of fiduciary duty    Distinct tort Violation of trust – not just legal claim Can have duties to firm (Johnson, p. 74)  Representation of fiduciary Vandermay v. Clayton   D attorney represented P in sale of business. P wanted to limit liability for environmental clean-up to $5,000.    Agreement changed at last minute. Did not clearly provide limitation. Extent of liability under agreement unclear.   Settled dispute about responsibility by paying $585,000. Sued attorney for $585,895.  Where does that number come from? Vandermay malpractice claim  What was malpractice claimed?   Did not tell P that agreement didn’t limit liability? Did not draft agreement that limited liability?  Trial court denied recovery because no expert testimony.   But didn’t he have an expert? How can court say no expert testimony?  Do you have to have expert testimony in a malpractice case? Expert testimony  Generally required to have expert testimony.   Standard of care not within knowledge of jury. Expert must testify as to standard, and whether met.    If expert is not qualified, then don’t have expert testimony. Was expert qualified here? So does P lose?  Did at trial. What happens on appeal? Obvious malpractice  If malpractice obvious to lay juror, do not need expert testimony.   Do no work, miss statute of limitations, etc. Legal equivalent of leaving scissors in patient. Was effect of damage limitation a legal determination? Was fact that not limited obvious? Why did they settle the claim? What would result have been if court said needed expert here?  Was the malpractice obvious here?     Notes   If need to hire expert and don’t, attorney that didn’t hire may be sued for malpractice. Geographic scope     Generally refer to attorney licensed in jurisdiction. Practice standards in jurisdiction. Approaches may vary. Depends on nature of claim. Specialist is generally held to higher standard. Better to have testimony of other specialist.  Specialization   Clark v. Rowe  P sued attorney Rowe and banker Potter for losses in Real Estate investment.     Directed verdict for Potter. Some negligence on part of Rowe regarding refinancing. P had substantial experience in R/E matters. Found P 70% negligent. P appeals – says comparative negligence does not apply in attorney malpractice.  J/D Rowe under comparative negligence.   Affirm. Comparative negligence applies. Comparative fault   Claim sounds in K and tort. Statute does not apply in this case   Statute deals with personal injury and property damages. That does not preclude finding common law rule. Recognized for medical malpractice and other negligence cases Individuals are responsible for own fault/actions. Liable for losses caused by malpractice. Q: Was there comparative fault in Vandermay?  Policy considerations     Notes  Approaches to comparative negligence:    Pure – Reduce by %, but don’t bar (12?) P negligence bars claim entirely (4?) Bar if P negligence ≥ D negligence. Otherwise, % reduction. (maj.)  Malpractice where client failed to read settlement agreement?    Sure. Lawyer misrepresented contents. Also, depending on problem, would client realize what problem was anyway? Isn’t it reasonable to rely on lawyer’s preparation of document? Shumsky v.Eisenstein  Ps hired attorney Eisenstein (D) to sue home inspector.   D failed to file within time limitations. Ps lost opportunity to sue.   Ps sue D for malpractice D moves for SJ – S/L for malpractice suit.   T Ct denies  S/L tolled until Ps found out about failure to file. App. Reverses – barred by S/L.  Ct. App. Reverses. (SJ denied) Continuous Representation Rule   S/L tolled during “continuous representation.”  Must be representation in that same matter. Reason for rule   Right to repose confidence in attorney – not required to question or second-guess Dilemma if must sue attorney during representation – harm to relationship/representation. May have duty to investigate if circumstances “raise flags.”   Rule “growing in popularity.”  Not discovery rule – generally C/A accrues when malpractice occurs (NY).  Q: Is this subset of discovery rule? Time line      Missed S/L (K suit) Notice of withdrawal of attorney 3 years after malpractice Suit filed S/L based on continuous representation rule. 3/94 10/96 (?) 3/97 12/97 10/99 Litigation Malpractice  Does S/L begin to run when commit malpractice (during litigation) or when case over or appeals exhausted? Compare . . .    Alaska case – discovery of malpractice Florida case – when litigation ends Texas case – when appeals exhausted (or litigation otherwise concluded) What does a malpractice claim involve?  Which is best?  Additional questions   What if matter briefly reopened (n. 3)?  Not likely to toll S/L. What if client asks attorney how things are going, and attorney lies?  Estoppel.  What should attorney in Shumsky have done if he had been contacted by Ps prior to 3/97?   File before! A lot of S/L litigation comes from fixing mistakes. Willis v. Maverick  Willis hired attorney Maverick to represent her in her divorce action.     Maverick was friend of Willises. P wanted right to live in home until children grown. H wanted provision deleted. Attorney deleted provision, told P that home could not be sold w/o her permission.   Later found out that she did not have right under agreement to prevent sale of home. Willis sued Maverick for malpractice (and DTPA violations).  Source of problem??? Statute of Limitations   2 year S/L. Barred by S/L unless discovery rule. Adopt discovery rule for legal malpractice       Compare to medical malpractice – Same policies Difficult for laymen to detect legal malpractice  Should you hire second attorney to watch over first? Special relationship between attorney and client  Less likely to be suspicious. Attorney obligation to disclose material facts to client. Rule less burdensome to attorneys than opposite rule would be to clients. Majority rule.  But what about S/L policies? Willis result  Policies favoring discovery rule outweigh S/L policies. BUT . . .   Issue not properly submitted in Willis. Did not allege that could not have discovered with reasonable diligence.   So Willis still loses. Will she now sue her malpractice attorney? Other malpractice issues     Good faith is not a defense in a malpractice case. (Cosgrove v. Grimes, Texas 1989) Courts may be more “forgiving” RE damages proof where no chance to put on case. Negligent settlement advice can be actionable. Generally no recovery for non-economic injuries – only economic harm  Some exceptions Top Ten Ways to Get Sued      Work for unscrupulous client. Fail to document who you represent. Fail to document scope of representation. Leave loose ends in P/I settlement. Represent both sides in business transaction.      Fail to give client a cost/benefit analysis. Take a case beyond you expertise. Fail to document client’s economic decisions. Fail to sue proper defendants in time. Sue for fees. Peeler v. Hughes & Luce  Peeler hired attorney Jordan to represent her in criminal matter   Illegal tax schemes – 21 counts $250,000 non-refundable retainer $100,000 fine, $150,000 restitution 5 years probation  Admitted guilt to one count      Found out Jordan failed to tell her about offer of transactional immunity. Sued for malpractice (and breach/K, DTPA) SJ/Ds – Illegal conduct sole cause of conviction. Malpractice in Criminal Case  Criminal D cannot sue for malpractice unless exonerated.  Variations – acquittal, actual innocence . . . (1) Duty (2) Breach (SJ) (3) Causation* (4) Damages  Doctrinal – Guilt is sole proximate cause  Policy – Don’t let D profit from criminal act    Damages in malpractice action (profit) You do the crime, you do the time. Defendants will always claim malpractice. Peeler   Clear majority rule What is dissent’s argument?  Is this case different in any way? Serious violation if happened. Does that help D?  D can always file grievance.    What relief is there for a criminal defendant? Jacobs v. Satterwhite    65 S.W.3d 653 (Tex. 2001) Satterwhite charged with holding himself out as an attorney. Hired Jacobs to represent him.   Jacobs was allegedly negligent. Satterwhite hired a new attorney, pled guilty, 10 years probation Jacobs moved for SJ on negligence claim. Satterwhite abandoned negligence claim.  Sued Jacobs for negligence and breach of K.   Summary Judgment Motion     Trial Court granted SJ/D. Court of Appeals said error to grant on Breach of K action – not in motion. Reversed and remanded (entirely). Supreme Court said error to reverse as to negligence claim –  Satterwhite not complaining about this – waived claim.   SJ proper on negligence SJ improper on K claim – remand.   Express no opinion on merits of K claim. K issues were not before the court in Peeler either. Strickland v. Washington  Criminal D indicted on multiple counts of kidnapping and murder.    Attorney appointed. Guilty plea. Sentenced by Judge.   Sentenced to death. Challenged sentence due to ineffective assistance of counsel. Ineffective Assistance claim      What does D claim attorney did wrong? Trial court denied relief. Court of Appeals reverses. Supreme Court reverses Court of Appeals – This was not ineffective assistance of counsel. What is basis of ineffective assistance claim?    Right to attorney guaranteed by 6th Amendment. Must really be attorney – not enough that just person standing, or sitting, (or sleeping?) beside you. May be no relief without claim – bound by attorney acts. Ineffective Assistance of Counsel  (1) Performance      Must prove that performance deficient. So bad that not functioning as guaranteed “counsel.” Do not interfere with independent judgment – range of acts Strong presumption that within acceptable range. Purpose is to insure a fair trial. Must show reasonable probability that but for the errors, the result would have been different. Is our confidence in outcome undermined?  (2) Prejudice   Ineffective Assistance continued   High threshold – difficult to win Prejudice prong    “Just right” test – not outcome determinative N. 7 – Failure to object to erroneous sentence is prejudice Prejudice can be presumed  No counsel, very short time, some interference  Actual conflict of interest that adversely affects performance (Cuyler)  Need to have both to prevail – Can defeat claim by showing either   (1) Performance not deficient or (2) No prejudice Claim in Strickland  Why did claim fail in Strickland?  No deficient performance.  But didn’t D complain about several errors? Did the Court have to decide this?  No prejudice   Dissent   Note 2 – “deficient performance” test is not an adequate test – too malleable Is it? Could it be clearer? Compare Ineffective Assistance and Malpractice     Ineffective Assistance Seeking relief from conviction Prove Deficient Performance and Prejudice Prejudice requires reasonable probability result would have been different – not innocence.     Malpractice Seeking damages Prove Duty, Breach of Duty, Causation and Damages Causation requires proving innocence (legal and/or actual) – otherwise, guilt caused conviction. Burdine v. Johnson  Burdine filed Petition for Writ of Habeas Corpus because lawyer slept during trial.   Claimed ineffective assistance of counsel. Federal District Court granted. Panel had reversed. Supreme Court denied certiorari. Later agreed to plead guilty – accepted life sentence.  Fifth Circuit (en banc) affirmed.     What was the court’s reasoning? Burdine reasoning  Performance   Reasonable attorney does not sleep Evidence supported claim of sleeping. Hard to prove how would have changed. Prejudice presumed – like no lawyer at all.  Do not need state action to presume prejudice.   Prejudice   Focus is on effect, not cause, of problem. Don’t have to show specifics related to time asleep.   Is there now a per se rule about sleeping?  What about drinking? Ex Parte Lemke  Lemke pled guilty to 9 cocaine offenses.  Sentenced to 40 years for each delivery offense, 20 for each possession.  Filed Application for Writ of Habeas Corpus due to Ineffective Assistance of Counsel.   Attorney was not licensed when represented him. Denied. Technical suspension. Attorney did not tell him about plea offer.  Filed again.  Second Habeas Application  Why didn’t Lemke complain about plea offer in first application?     Just found out about it. Called to testify in Satterwhite’s criminal trial. Same D.A. in that case as in his criminal case. D.A. had offered 20 and 16 years.  Should Lemke have known about offer?    Nothing in the record. Asked Satterwhite repeatedly if there were any offers – was always told no. Wife corroborated. Not required to ask the D.A. directly. Ineffective Assistance of Counsel  Performance    Falls below standard of reasonableness. MUST communicate offer to client. Client’s decision. Yes. Would have accepted offers. Resolve doubts against state. Put him back to where he was before. Not new trial. Reinstate offers. So still hope.  Prejudice    Remedy   Continuing Legal Education Texas: 15 hours/year 10 participatory 5 self-study Includes 3 2 participatory 1 self-study hours in ethics “Extra” hours carry over one year. Compliance year – Year beginning with first of birth month – with grace period for birth month. First year – begins first birth month following admission First year = 24 months Must take Guide to Basics – Texas Center for Legal Ethics and Professionalism. Can take before graduate. Rule 5.1  (a) Partner (or “equivalent”) shall    make reasonable efforts to ensure firm has measures in place to make sure all lawyers conform to rules. Same responsibility regarding lawyers they supervise. Why not?  (b) Supervisory attorneys   NOTE: Texas does not have this part of the rule.  Rule 5.1(c)  A lawyer is responsible for another lawyer’s violation of the Rules if   The lawyer orders, or knowingly ratifies, the conduct. The lawyer has managerial or supervisory authority over the other lawyer and   Knows of the conduct when its consequences could be avoided or mitigated and Fails to take reasonable remedial action.  Texas has a counterpart to this rule. Rule 5.2  (a) A lawyer is bound by the rules even if acting at direction of another.   Attorney is an independent professional. Cannot hide behind advice of other. Be strong!  (b) It is not a violation if the lawyer acts   In accordance with a supervisory lawyer’s advice IF it based on a reasonable resolution of an arguable question.  If it is a clear violation – Don’t do it! Rule 5.3  (a) Partner (or “equivalent”) shall   make reasonable efforts to ensure firm has measures to make sure non-lawyers act within the rules.   (b) Same for lawyers who supervise a non-lawyer. (c) Lawyer is responsible for the conduct of the nonlawyer if    The conduct would be a violation for a lawyer The attorney orders or ratifies the conduct The lawyer knows about it when the consequences could be avoided or mitigated and fails to take remedial action.  Texas has counterpart to this also. Rule 8.3  (a) Lawyer shall report the misconduct of another lawyer if    Knows the lawyer has committed a rules violation That raises a substantial question As to the lawyer’s honesty, trustworthiness or fitness.   (b) Same requirement for reporting judges. (c) The rule does not require disclosure of   information protected by Rule 1.6, or information obtained while participating in an approved lawyer’s assistance program. In re Himmel   Rare case of discipline for violation of “squeal rule.” Himmel was suspended for 1 year   He failed to report another attorney’s conversion of a client’s funds. Himmel represented the client/victim. Himmel got a favorable settlement for his client by agreeing not to report. He had a contingent fee agreement with his client.  Q: Were other factors at work in this case?  