http://www.wisspd.org/html/980case/casesum/AppealsPP.htm
In 779 N.W.2d 19 (Wis, 2010), the Court of Appeals of Wisconsin imposed a fine of $150 on Buske’s appellate counsel and a fine of $150 on Russell’s appellate counsel. S.C. Johnson and Son claimed that his employees Buske invited bribes and kick-backs from transportation companies and, in exchange, submitted inflated invoices to employer on behalf of those transportation companies. A $203.8 million verdict in S.C. Johnson's favor was reached after substantial discovery, a four-week jury trial, and a series of motions brought before, during, and after the trial and verdict.
Wisconsin’s Court of Appeals affirmed that in issue of apparent first impression, representative of transportation company could not withdraw privilege against self-incrimination shortly before trial; in issue of apparent first impression, victim of intentional tort has no duty to mitigate damages unless it has actual knowledge of tort; corporation did not have actual knowledge of conspiracy; in issue of apparent first impression, double damages on whole award pursuant to Wisconsin Organized Crime Control Act (WOCCA) was proper; jury verdict was not perverse; jury verdict was not fatally defective; court acted within its discretion in admitting portions of redacted affidavits from reports of two federal law enforcement agents; and evidence that a nonparty transportation company hired friend of defendant was relevant.
The first issue concerns a party's continuous invocation of the Fifth Amendment privilege against self-incrimination in a civil action where that party later waives the privilege in the middle of trial when all discovery and preparation for trial is complete and the other party's theory of the case has been established. Second, this action alleged the intentional torts of fraud and misrepresentation. And third, is the multiple damages provision of the Wisconsin Organized Crime Control Act (WOCCA) remedial such that the entire damage award is doubled?
Showing posts with label attorney malpractice. Show all posts
Showing posts with label attorney malpractice. Show all posts
Tuesday, November 30, 2010
Wednesday, March 3, 2010
Rhode Island: Former Attorney Found Guilty for Legal Malpractice for Breach of Duty of Care
In Credit Union Cent. Falls v. Groff, 966 A.2d 1262 (R.I., 2009) the attorney misappropriated funds in connection with two real estate closings. The court addressed the issue of whether the former attorney owed a duty of care to the credit union. The court held that since it was uncontested that the former attorney misappropriated loan proceeds, the credit union was entitled to recover on its claim of attorney malpractice.
Mr. Groff was acting as closing attorney for real estate transactions involving Credit Union Central Falls customers. The credit union provided Mr. Groff with a check in the attorney’s name to discharge two existing mortgages to ensure the priority of the credit union mortgage. Mr. Groff did not pay off the previous mortgages but made monthly payments on the prior loans to conceal their continued existence and instead used the money for personal ends.
Rhode Island ethical codes permit multiple representation if there is full disclosure, the clients consent in writing, and the attorney reasonably believes there will be no harm to either client. Although Mr. Groff was representing the credit union’s customers for these real estate transactions, Mr. Groff had a deep financial interest in maintaining a good relationship with the credit union and much of the closing attorney’s duties were directly intended to benefit the credit union. In McIntosh County Bank v. Dorsey &Whitney, LLP, 745 N.W.2d 538, 547 (Minn. 2008), the court reaffirmed its rule of law “that in order for a third party to proceed in a legal malpractice action, the party must be a direct and intended beneficiary of the attorney’s services.” It also went on to state that “the benefit to the third party must be ‘the end and aim of the transaction’ before the beneficiary may be called direct.” In this case, Mr. Groff was required to ensure that the credit union’s mortgage had priority and the borrowers authorized Mr. Groff to satisfy the credit union’s loan requirements. Therefore, the court found that the credit union, if not a client, was at the very least an intended beneficiary of the contractual obligations between Mr. Groff and the borrowers, and as such, the attorney owed the credit union a duty of care.
The court found in the credit union’s favor and that they are entitled to recover on its claim of attorney malpractice for Mr. Groff’s flagrant breach of his duty to use “ordinary care and skill” in the exercise of his profession. The court found summary judgment in favor of Credit Union Central Falls.
Mr. Groff was acting as closing attorney for real estate transactions involving Credit Union Central Falls customers. The credit union provided Mr. Groff with a check in the attorney’s name to discharge two existing mortgages to ensure the priority of the credit union mortgage. Mr. Groff did not pay off the previous mortgages but made monthly payments on the prior loans to conceal their continued existence and instead used the money for personal ends.
Rhode Island ethical codes permit multiple representation if there is full disclosure, the clients consent in writing, and the attorney reasonably believes there will be no harm to either client. Although Mr. Groff was representing the credit union’s customers for these real estate transactions, Mr. Groff had a deep financial interest in maintaining a good relationship with the credit union and much of the closing attorney’s duties were directly intended to benefit the credit union. In McIntosh County Bank v. Dorsey &Whitney, LLP, 745 N.W.2d 538, 547 (Minn. 2008), the court reaffirmed its rule of law “that in order for a third party to proceed in a legal malpractice action, the party must be a direct and intended beneficiary of the attorney’s services.” It also went on to state that “the benefit to the third party must be ‘the end and aim of the transaction’ before the beneficiary may be called direct.” In this case, Mr. Groff was required to ensure that the credit union’s mortgage had priority and the borrowers authorized Mr. Groff to satisfy the credit union’s loan requirements. Therefore, the court found that the credit union, if not a client, was at the very least an intended beneficiary of the contractual obligations between Mr. Groff and the borrowers, and as such, the attorney owed the credit union a duty of care.
The court found in the credit union’s favor and that they are entitled to recover on its claim of attorney malpractice for Mr. Groff’s flagrant breach of his duty to use “ordinary care and skill” in the exercise of his profession. The court found summary judgment in favor of Credit Union Central Falls.
Utah: Case Against Lawyer for Civil Rights Violation Dismissed
In In re Yengich, Slip Copy, 2009 WL 4543688 (D.Utah), the Utah District Court dismissed a case against Defendant Yengich and other attorneys for conspiring to deny the Plaintiff’s co-defendants in another case the right to a fair trial, and various other grievances against the Defendant. The Plaintiff’s co-defendant’s guilty pleas in this other case were a clerical error. The Plaintiff filed the complaint pro-se.
The Utah District Court found that although the clerical error was made, the Plaintiff had no standing as a third party to assert claims for her co-defendants. The Supreme Court has recognized that “there may be circumstances where it is necessary to grant a third party standing to assert the rights of others.” Kowalski v. Tesmer, 543 U.S. 125, 129, 125 S.Ct. 564, 160 L.Ed.2d 519 (2004) (quoting Warth, 422 U.S. at 499). A party seeking third-party standing must make two additional showings: (1) that the party asserting the right has a close relationship with the person who possesses the right; and (2) that there is a hindrance to the possessor's ability to protect his or her own interests. Id.
To the extent that Ms. Wood-Federowicz may be attempting to assert claims on behalf of Mr. Federowicz and Ms. Bluff, she also has not satisfied the requirements for third-party standing. That is, the Court can find no indication that there is any hindrance to the abilities of Mr. Federowicz and Ms. Bluff to protect their own interests. See Kowalski, 543 U.S. at 129. Indeed, both Mr. Federowicz and Ms. Bluff have filed their own section 1983 actions in the District of Utah (09-cv-00481-JLK and 09-cv-00483-JLK). Accordingly, Ms. Wood-Federowicz is not entitled to third-party standing in this action. Because the Court finds that Ms. Wood-Federowicz does not have standing, it need not address Defendant's other arguments for dismissal.
This case teaches that even though an attorney may make a mistake which could be construed as mal-practice, it’s best to leave some legal issues to the professionals.
The Utah District Court found that although the clerical error was made, the Plaintiff had no standing as a third party to assert claims for her co-defendants. The Supreme Court has recognized that “there may be circumstances where it is necessary to grant a third party standing to assert the rights of others.” Kowalski v. Tesmer, 543 U.S. 125, 129, 125 S.Ct. 564, 160 L.Ed.2d 519 (2004) (quoting Warth, 422 U.S. at 499). A party seeking third-party standing must make two additional showings: (1) that the party asserting the right has a close relationship with the person who possesses the right; and (2) that there is a hindrance to the possessor's ability to protect his or her own interests. Id.
To the extent that Ms. Wood-Federowicz may be attempting to assert claims on behalf of Mr. Federowicz and Ms. Bluff, she also has not satisfied the requirements for third-party standing. That is, the Court can find no indication that there is any hindrance to the abilities of Mr. Federowicz and Ms. Bluff to protect their own interests. See Kowalski, 543 U.S. at 129. Indeed, both Mr. Federowicz and Ms. Bluff have filed their own section 1983 actions in the District of Utah (09-cv-00481-JLK and 09-cv-00483-JLK). Accordingly, Ms. Wood-Federowicz is not entitled to third-party standing in this action. Because the Court finds that Ms. Wood-Federowicz does not have standing, it need not address Defendant's other arguments for dismissal.
This case teaches that even though an attorney may make a mistake which could be construed as mal-practice, it’s best to leave some legal issues to the professionals.
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