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Maine Supreme Court holds that competent and expert testimony is required to prove causation in legal malpractice actions

Hello everyone and welcome to this Ethics Alert which will discuss the March 21, 2017 opinion of the Maine Supreme Court which held that expert testimony that is not based on supporting facts in the record was insufficient to prove that a lawyer’s alleged negligence caused the plaintiff’s injury.  In addition, a “corrected affidavit” which contradicts the expert’s clear deposition testimony is insufficient.  The case is Brooks v. Lemieux, 2017 ME 55 (Maine Supreme Judicial Court March 21, 2017) and the opinion is here:  http://www.courts.maine.gov/opinions_orders/supreme/lawcourt/2017/17me55br.pdf.

The former client/malpractice plaintiff in the underlying matter (Brooks) retained the lawyer/malpractice defendant (Lemieux) after he unsuccessfully grieved his termination from Bath Iron Works (BIW) and his failure to attend arbitration.  Brooks was a long-time union employee and, after the union voted not to assist Brooks to arbitrate his grievance, Brooks hired Lemieux.  In February 2007, Brooks filed a complaint against the union and BIW in federal district court for breach of the collective bargaining agreement and discrimination.

After the union and BIW moved for summary judgment, Lemieux failed to timely file opposing statements of material fact, and summary judgment was granted against Brooks. The magistrate granted the motion and noted that Lemieux had failed to cite to record evidence in the statement of facts refuting the opposing statement of facts, resulting in their admission.

Brooks then sued Lemieux for legal malpractice, alleging that the lawyer fell below the standard of care by failing to: (1) timely file responses to statements of material fact supporting summary judgment, (2) follow a local rule governing statements of fact, (3) obtain affidavits from witnesses and (4) conduct adequate discovery.

The trial court granted summary judgment in Lemieux ‘s favor in the malpractice matter, finding that Brooks had failed to prove causation because he failed to identify what evidence Lemieux should have cited, affidavits that he should have obtained, and what discovery he should have conducted.  This resulted in the fact-finder having to speculate as to any causal link between the alleged negligence and the injury, and failed to submit admissible expert testimony on causation.

The trial court refused to consider Brooks’ expert’s corrective affidavit on causation, which contradicted that expert’s earlier deposition testimony.  Relying on a Maine case, the trial court held that the contradictory affidavit could not create a disputed issue of material fact given the expert’s clear and unambiguous answers in the deposition testimony.

Brooks appealed and argued that (1) the trial court applied the incorrect malpractice standard, (2) expert testimony was not required, (3) causation presents a jury question, and (4) plaintiff’s expert’s affidavit established prima facie evidence of causation.

The Maine Supreme Judicial Court Brooks found that Brooks failed to set  forth prima facie evidence of causation to support his claims, and that the trial court properly granted summary judgment in favor of Lemieux.  The opinion rejected the argument that an incorrect standard was applied since Lemieux did not fail to timely plead in the underlying case and cause Brooks’ opportunity before the fact-finder to be lost.  The opinion also found that there was insufficient expert testimony to establish that Brooks would have prevailed but for Lemieux’s alleged negligence since the expert’s deposition testimony and “corrected affidavit” created a clear contradiction, not merely a discrepancy.

According to the opinion, the trial court improperly refused to consider the contradictory affidavit; however, the error was harmless since the affidavit was deficient for summary judgment purposes. The affidavit also provided only conclusory statements that Lemieux breached the standard of care without citing to facts which connect the alleged negligence to the injury; therefore, without competent evidence of negligence, a fact-finder could only speculate about causation (which requires a showing that the plaintiff would have prevailed in the underlying litigation but for the defendant’s alleged negligence); therefore, the expert opinion was insufficient. Pursuant to the above, the opinion affirmed the summary judgment in favor of Lemieux.

Bottom line:  This opinion found that an expert retained by the plaintiff in a legal malpractice matter cannot provide a conclusory opinion that a lawyer failed to meet the standard of care but must cite “to facts which connect the alleged negligence to the injury.”  In addition, the “corrected affidavit” by an expert which contradicts the expert’s clear testimony in a deposition created a clear contradiction, not merely a discrepancy, and was inadequate to prove causation.

Be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

29605 U.S. Highway 19, N., Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

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Filed under joe corsmeier, Joseph Corsmeier, lawyer malpractice expert witness, lawyer malpractice sufficiency of evidence expert testimony, Lawyer negligence, legal malpractice negligence, legal malpractice standard of care

Can a referring lawyer be held liable for the referral lawyer’s malpractice?

Hello everyone and welcome to this Ethics Alert blog which will discuss whether a lawyer could be potentially liable for another lawyer’s legal malpractice (and potential Bar rule violations) by making a referral.  The short answer is yes.  Of course, under the Florida Bar lawyer disciplinary rules and most, if not all, jurisdictions, it is certainly ethical for a lawyer to refer a case to another lawyer and receive a referral fee; however, there are certain requirements under the rules and the referring lawyer might be held liable for any malpractice by the referral lawyer.

In Noris v. Silver, 701 So. 2d 1238 (Fla. 3rd DCA 1997), which is here: http://www.legalmalpracticelawreview.com/wp-content/uploads/sites/271/2012/03/Noris.pdf, the plaintiff was injured when a vehicle struck his bicycle in Chicago, Illinois. The plaintiff contacted an appellate attorney in Florida (Silver) who did not handle personal injury cases.  The Florida lawyer then referred the matter to another lawyer (Falk) to whom he had previously referred cases and received a referral fee.  The fee agreement with the referral lawyer did not disclose a fee arrangement with the referring lawyer, which violated Florida Bar Rule 4-1.5(g).  The referral lawyer then failed to file the case before the expiration of the Illinois two-year statute of limitation for personal injury claims and the client sued the Illinois lawyer and the referring Florida lawyer for malpractice.

The opinion stated:  “In the instant case, there is a genuine issue of material fact as to whether Silver retained a financial interest in plaintiff’s personal injury case by entering into an express or implied agreement to divide the legal fee.”  “This issue of fact is material because pursuant to Rule Regulating The Florida Bar 4-1.5(g), if Falk and Silver agreed to divide the attorney’s fee, Silver would be liable for the malpractice committed by Falk.”

“Attorneys in different firms may divide fees under two circumstances: first, if the ‘division is in proportion to the services performed by each lawyer,’ R. Regulating Fla. Bar 4-1.5(g)(1); and second, if the client agrees in writing and the agreement discloses “the basis upon which the division of fees will be made,’ R. Regulating Fla. Bar. 4-1.5(g)(2).  Moreover, when fees are divided pursuant to Rule 4-1.5(g)(2), ‘each lawyer assumes joint legal responsibility for the representation….’  Therefore, if Silver and Falk agreed to divide the attorney’s fee, Silver would be liable for the malpractice committed by Falk.” (emphasis added).

“It is true that if Falk had recovered attorney’s fees, Silver could not have enforced the purported oral agreement against Falk since the agreement did not comply with Rule 4-1.5(g)(2).  See Chandris, S.A. v. Yanakakis, 668 So. 2d 180, 185 (Fla. 1995).  However, we find that the failure to comply with Rule 4-1.5(g) cannot be used to shield a referring attorney from a legal malpractice claim made by a client. (emphasis added). To hold otherwise would allow attorneys to thwart their responsibility to a client by intentionally disregarding the Rules Regulating The Florida Bar. This cannot be condoned. It would also be unfair to lawyers who comply with Rule 4-1.5 to allow an avenue of escape for those who do not.  Accordingly, we hold that if Falk and Silver agreed to divide the attorney’s fees, then Silver is legally responsible for the malpractice committed by Falk.” (emphasis added).

“We point out that in order for the plaintiff to prevail, the plaintiff must prove that there was an express or implied agreement between the referring attorney, Silver, and the working attorney, Falk, to divide the legal fee. The plaintiff can prove this by showing that there was an express agreement for division of the fee. Alternatively, plaintiff can show that there was an implied agreement, for example by showing a past course of dealing whereby it was understood between the two attorneys that a fee would be paid in exchange for referrals. When the summary judgment record is read in the light most favorable to the plaintiff as nonmoving party, the evidence supports the existence of an implied agreement for division of the fee in this case.”

Bottom line:  This case involved a lawyer who referred a personal injury matter which occurred in another state to a lawyer who practiced in that state.  In Chandris v. Yanakakis, the Florida Supreme Court stated that a contingent fee agreement between a Florida lawyer and an out of state law firm in a Florida case lawyer is void.  The opinion stated:  “We have determined that the requirements for contingent fee contracts are necessary to protect the public interest. Thus, a contract that fails to adhere to these requirements is against public policy and is not enforceable by the member of The Florida Bar who has violated the rule.”  (Emphasis added).  The opinion is here:  http://archive.law.fsu.edu/library/flsupct/82934/op-82934.pdf.

Lawyers must be aware that, in Florida (and most, if not all jurisdictions), if a matter is referred to another lawyer and the referring lawyer expects to receive a referral fee, there must be a written fee agreement which discloses “the basis upon which the division of fees will be made” and “each lawyer assumes joint legal responsibility for the representation.”

Be careful out there!

Disclaimer:  this Ethics Alert is not an advertisement and does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Filed under Attorney Ethics, Florida Bar, Florida Bar rule 4-1.5 resolution of extraordinary liens, Florida Lawyer Ethics and Professionalism, joe corsmeier, Joseph Corsmeier, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer referral fees, Lawyer referral fees legal malpractice, Lawyer referral fees void under Chandris, Lawyer referrals liability for legal malpractice