Indiana: Lawyer waived affirmative defenses by failing to assert them in response to motion for summary judgment on legal malpractice/ negligence suit

Link for opinion: http://www.leagle.com/xm/Result.aspx?xmldoc=In+INCO+20100506224.xml&docbase=CSLWAR3-2007-CURR


In Reiswerg v. Statom, 926 N.E.2d 26 (Ind. 2010), the Indiana Supreme Court held that a party is not obligated to waive an affirmative defense by failing to raise it in response to a motion for partial summary judgment that is not dispositive to the issue of liability.

The Indiana Supreme Court affirmed that the trial court properly struck Reiswerg’s summary judgment on the basis that he waived his statute of limitations defense, by failing to raise it in response to Statom’s motion for partial judgment, based on Ind. Trial Rule 56 and Ind. Trial Rule 8(c). Dissenting to PART I of the majority opinion. Concurring to results of PART II.

The lawyer also alleged fraud an constructive fraud. Join App. at 46-48. Both defendant and Plaintiff were granted in favor of the court. All claims were not raised and identified only pieces.

This case teaches the importance of lawyer’s liability of being legally obligated and accountable. Black Laws Dictionary 997 (9th ed. 2009). This case also teaches that to hold an attorney accountable for negligence in the practice of law a plaintiff must demonstrate attorney breach of duty, employment of attorney to client, proximate cause, and damages. Solnosky v. Goodwell, 892 N.E.2d 174, 181 (Ind. Ct. App. 2008)

Louisiana: Attorney permanently disbarred for negligence against several clients

In In Re S. Judd Tooke, 22 So. 3d 902 (La. 2009), the Louisiana Supreme Court ordered a lawyer’s name to be stricken from the roll, their license to practice law revoked in Louisiana, and that the attorney be permanently prohibited from being readmitted to the practice of law in Louisiana, and was ordered to pay full restitution to his victims.

The Louisiana Supreme Court affirmed the hearing committee’s conclusions that the lawyer knowingly neglected legal matters, failed to communicate with clients, failed to properly supervise his non-lawyer assistant, engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation, had converted client to his own use by billing and receiving payment for expenses and legal fees that did not exist, did not properly communicate a fee arrangement to a client, did not refund unearned fees, didn’t fulfill obligations upon termination of representations, also engaged in conflicts of interest. Also the lawyer’s conduct was more intentional than negligent. The attorney violated duties to his clients, the legal system, and the legal profession, he actually caused substantial harm. The attorney was in violation under Louisiana Rules of Professional Conduct: 1.1(a), 1.3, 1.4, 1.5(a), 1.5(b), 1.7(a), 1.8(c), 1.15(a), 1.16(d), 3.2, 5.3, 8.4(a), 8.4(b), and 8.4(c).

The lawyer had admitted to some of the deceit, yet did not offer any type of repayment to the victims of his deceit, fraud, or misrepresentation. The lawyer failed to fix any of the wrongs that he made in regards to The Rhodes Matter, The Hamilton Matter. The lawyer had used a client trust account for his own personal use. The lawyer failed to answer the formal charges that were brought against himself; he also never filed anything for the hearing committee’s consideration. In cases in which the lawyer does not answer the formal charges, the factual allegations of those charges are deemed admitted. Supreme Court Rule XIX, § 11(E)(3).
This case teaches the importance of the lawyer’s duty under Rule 1.1(a) failure to provide competent representation to a client, Rule 1.4 Communication, and overall Rule 8.4(c) engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation