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socrateaser
socrateaser, Attorney
Category: Business Law
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Experience:  Retired (mostly)
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In am involved in a protracted civil case against a bank which

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In am involved in a protracted civil case against a bank which has now gone onto malpractice. Attorney #1 in the (underlying) case failed to understand and argue relevant banking law, causing the case to be controlled under the wrong body of law (with loss of very viable common law causes of action) due to a demurrer by the bank (exploiting his ignorance). After racking up huge fees and making little progress in the case, attorney #1 was fired by me. Attorney #2 did retain an expert who advised on prior attorney’s errors in forwarding the correct legal arguments. Attorney #2 tried to amend the complaint to the correct body of law, forwarding arguments that should have been made by attorney #1. Unfortunately, it was now more than two years after the original (defective) demurrer that landed the case in the wrong body of law. Bank argued that the amended complaint was actually a motion for reconsideration and was not timely. Judge agreed, noting that no new statute or law was being argued and denied the amended complaint attempt. Both attorney #2 and I agreed that the case was stuck in the wrong body of law at that point, with loss of very viable common law causes of action. Attorney #2 gave me two options: drop the case or continue with him to trial under what we both agreed was the wrong body of law. Attorney #2 proceeded under wrong body of law and lost the case (after billing me large sums). Overreaching issue was attorney #2’s serious financial issues: both personal and law practice (he declared both personal and law practice bankruptcy shortly thereafter). Question is this: should I have been advised of other options other than a) simply dropping the case, or b) proceeding under the wrong body of law? For example, dropping case without prejudice and proceeding to an appeal so that the body of law be corrected. Related, during amended complaint attempt, bank proffered a motion for summary judgment that would have ended the case, which the judge in his tentative initially sustained, and which, in theory, my attorney could have accepted, ending the case and clearing the way to an appeal. Attorney #2 fought against tentative motion to sustain demurrer, arguing instead to reinstate (defective) causes of action under wrong body of law.
Submitted: 3 years ago.
Category: Business Law
Expert:  socrateaser replied 3 years ago.
Question is this: should I have been advised of other options other than a) simply dropping the case, or b) proceeding under the wrong body of law?

A: First attorney committed malpractice by failing to become competent in the subject matter, or associating with someone who was competent (or, declining the representation). Second attorney committed malpractice by allowing his personal financial difficulties to conflict with his obligations to his client, and not providing full disclosure about the circumstances. Whether or not second attorney's decisions to proceed (and to bill you) were clouded by his external circumstances is a question of fact. Failure to disclose the attorney circumstances is a question of law -- the attorney has an obligation to act in the highest and best interests of the client. Failure to do so is malpractice.

In my view, proceeding on an incorrect legal theory is folly. I would have asked for a voluntary dismissal, cut my losses, and then sued the first attorney.

The trouble with really complex cases is that the typical lawyer does not have the financial resources to manage his/her ongoing practice and simultaneously research and prosecute the complex case. What usually happens is that the attorney tries to "wing it," and then discovers that he/she has no clue about the substantive law.

The only way a small-time lawyer can handle complex actions is to thoroughly research before committing to the case. Trouble is that the typical client who can't afford "big law," won't pay for the research time. So, the client and attorney end up being each other's worst enemies, because the result is that neither is informed about the law of the case.

Researching the law is hard work. Most attorneys never learn how to do it. They learn to throw stuff at the back of the courtroom wall, and hope that the judge will pick something favorable -- because, of course, the typical judge doesn't research the law, either. The court picks up on something easy and rules -- and, then hides in the shadow of the knowledge that the typcial client can't afford an appeal to prove that the judge's ruling is inadequate -- or flat wrong.

Contact a legal malpractice lawyer and see if you can recover something against your attorneys' liability insurance carrier (pray that they are insured -- many lawyers are not).

Hope this helps.

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Customer: replied 3 years ago.

Thanks Socrateaser. I have received input from you before and it is valued.

 

One clarification regarding Attorney #2's duty to advise at the juncture of his failure to amend the complaint to the proper body of law:

 

The advice I received (in writing) from the Attorney #2 was that they (his small firm) "did not share my opinion that the case was now a disaster", which was prefaced with other emails saying they were "excited to take the case to trial". What I DID NOT receive was a recommendation that the case, as you have noted, being under the wrong body of law, should be dismissed and that I should proceed with malpractice against Atty #1. Specifially, what I did not understand was the "case within the case" concept I now understand about malpractice - that the case would essentially be re-heard to test to see if I would have prevailed "but for" Attorney #1's failures (it almost certainly would have). Did Attorney #2 have a duty to advise me thoroughly regarding my malpractice option? If I had received such advice, I would have certainly acted on it.

thanks.

Expert:  socrateaser replied 3 years ago.
A lawyer has a duty to disclose all facts and circumstances necessary to enable the client to make free and intelligent decisions regarding the subject matter of the representation Lysick v. Walcolm (1968) 258 Cal.App.2d 136, 147, 65 Cal.Rptr. 406, 414).

So, my answer is "maybe," because it's arguable that malpractice is not a "subject matter of the representation," where the case revolves around a different issue. But, once an attorney states that his predecessor attorney in the case screwed up something -- it's not a stretch for the attorney to use the phrase "committed malpractice." So, I don't think it would be too difficult to prove that attorney #2 was more interested in getting paid for proceeding along a fruitless path, than in terminating the representation in favor of your hiring a malpractice lawyer to sue your former attorney.

Malpractice is a touchy thing, for obvious reasons. I could find malpractice just about anywhere. The question is whether or not a reasonable attorney in similar circumstances would have made the same errors. That question can be difficult to prove, except in really egregious circumstances. Point being that I don't want you throwing good money after bad, trying to sue your former attorneys if it won't get you any return. Question #1 is do either of these lawyers have any assets or insurance with which to pay a claim. If not, then you will be wasting your time, regardless of any justification for suing.

Hope this helps.
socrateaser, Attorney
Category: Business Law
Satisfied Customers: 34170
Experience: Retired (mostly)
socrateaser and 12 other Business Law Specialists are ready to help you
Customer: replied 3 years ago.

Socrateaser:

New question and new fee to for you.

 

Per above, you mentioned the option after the failure to amend the complaint into the correct body of law would have been to dismiss, then proceed with malpractice with Attorney #1. As part of the amended complaint process, the bank defendant filed a motion for summary judgment under the exiisting (wrong) body of law, which the judge granted in his tenative decision. My atrorney went on to "fight" for the wrong body of law, losing one of the causes of action in the process, before going on to lose the case under that wrong body of law.

 

Question: Was it legally feasable for Attorney #2 to have simply accepted the judges tenative ruling on the bank defendant's motion for summary judgment (as it turns out, judges (bench) trial ruling was almost exactlly the same as his tenative in the msj) . In other words, could not Attorney #2 simply accepted the motion for summary judgment, ending the trial and paving the way for appeal and/or malpractice against Attorney #1?

Thank you.

Expert:  socrateaser replied 3 years ago.
A summary judgment motion is intended to dispose of a legal matter prior to trial, thereby avoiding the cost of trial. If the court maintained a tentative ruling, rather than making a final ruling at summary judgment, so that you could go to trial, I believe that the entire trial would be subject to reversal on grounds of prejudice, because the judge had a responsibiity to dispose of the case, rather than give a signal as to how judgment after trial would go, and then allow the trial anyway.

If it were me, I would have asked the court to make a final ruling on summary judgment and then I would have appealed.

But, I'm better on paper than at trial, so that would be obvious to me. I can win an appeal because my written arguments are generally unassailable (or, I don't make them). Your attorney may have believed he could turn the tide by convincing the judge at trial. Or, he could have simply been looking for a way to increase his bill. There's no way to know that answer.

BotXXXXX XXXXXne, it's not malpractice to want to go to trial. It is malpractice to follow a legal rationale that is recognized to be a loser in advance.
socrateaser, Attorney
Category: Business Law
Satisfied Customers: 34170
Experience: Retired (mostly)
socrateaser and 12 other Business Law Specialists are ready to help you
Customer: replied 3 years ago.

Socrateaser:

First, thank you for your input. It has been very helpful. This will be a new fee/question based on your answers, per above:

 

In the above issue, I asked:

 

"As part of the amended complaint process, the bank defendant filed a motion for summary judgment under the existing (wrong) body of law, which the judge granted in his tentative decision. My attorney went on to "fight" for the wrong body of law, losing one of the causes of action in the process, before going on to lose the case under that wrong body of law."

 

And you answered:

"If it were me, I would have asked the court to make a final ruling on summary judgment and then I would have appealed."

 

I have received the same input from more than another expert. In reviewing the trascript for the hearing, I wanted to add the follwoing fact(s) for your consideration and comment:

The judge's tenative was to sustain the bank demurrer without leave to amend, meaning, if I understand that correctly, that, if accepted, the case (stuck under the wrong body of law), would have essentially been decided, clearing the way for an appeal and/or proceeding with malpractice against attorney #1 who screwed up the case in the first place?

 

Whould there have been any legal protocol for my attorney to follow, other simply accepting the judge's tenative to sustain the motion for summary judgment without leave to amend (before my proceeding to malpractice and/or appleal)?

Thank you.

 

Expert:  socrateaser replied 3 years ago.

The judge's tenative was to sustain the bank demurrer without leave to amend, meaning, if I understand that correctly, that, if accepted, the case (stuck under the wrong body of law), would have essentially been decided, clearing the way for an appeal and/or proceeding with malpractice against attorney #1 who screwed up the case in the first place?

 

A: Okay, just to clarify -- a demurrer is not the same thing as a summary judgment motion.

 

A demurrer assumes that even if plaintiff's complaint is absolutely true in every respect, defendant must win, because (e.g., the law doesn't permit any recovery)....

 

Whereas, a summary judgment motion assumes that the nonmoving party is correct on each and every issue of material fact, and then requires that the moving party prove that the material facts are at least in dispute, such that a trier of fact (judge or jury) should be asked to consider the disputed facts and render a verdict.

 

In my opinion, judges who issue tentative rulings wreck the legal process, because the purpose of demurrers and summary judgment motions is to determine the outcome of the case -- not to give a signal about which way the case is going and then let the case proceed anyway. I would prefer that the court rule, and then appeal, rather than waste the client's time and money in a pyrric effort to convince the judge that he/she made an error in the tentative decision.

 

If a judge tells me that he/she tentatively intends to sustain a demurrer without leave to amend, that's the equivalent of "Don't confuse me with the facts, I've already made up my mind." In which case, as far as I'm concerned, I need to take the case to an appellate court, or tell my client to surrender, because the court has predetermined that the client will lose.

 

So, the answer to your question is "yes." You lost at the get go, and the correct move would have been to bail out or appeal. But, I cannot say that moving forward to trial is necessarily malpractice. A jury would have to decide what an objective attorney in the shoes of your attorney would have done in similar circumstances. If the answer is "move on to trial," then no malpractice -- otherwise, malpractice.

Whould there have been any legal protocol for my attorney to follow, other simply accepting the judge's tenative to sustain the motion for summary judgment without leave to amend (before my proceeding to malpractice and/or appleal)?

 

A: You're confusing the terms again. A demurrer is not a summary judgment motion. Regardless, I think my explanation above covers this question.

 

Hope this helps.

socrateaser, Attorney
Category: Business Law
Satisfied Customers: 34170
Experience: Retired (mostly)
socrateaser and 12 other Business Law Specialists are ready to help you

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