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If you look up Pierce Vs Potter in New Mexico you will see a

Customer Question
case where Pierce, the defendant...
If you look up Pierce Vs Potter in New Mexico you will see a case where Pierce, the defendant committed malpractice. However this was a bankruptcy case. Pierce submitted his application for fees and then, I am not clear on this part. Did Potter contest the fees or not? I think he contested the fees. Then Potter sued Pierce for malpractice down the road and lost in the New Mexico Supreme court with the Court saying that Rez Judicada applies. It is applied because the fees were contested, and then suing for malpractice is not allowed because the fees have already been contested. It does not make sense to me, and I am a lay person, but look it up. My question is................ I also retained Attorney Pierce and I also want to sue him for malpractice. There is a big difference between me and Mr Potter. I did not contest Mr Pierce's fees. Does Rez Judicata still apply ?
Submitted: 2 years ago.Category: Bankruptcy Law
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Answered in 1 hour by:
9/5/2015
Bankruptcy Lawyer: Ray, Lawyer replied 2 years ago
Ray
Ray, Lawyer
Category: Bankruptcy Law
Satisfied Customers: 44,517
Experience: 30 years in civil, probate, real estate, elder law
Verified

Hi and welcome to JA. I am Ray and will be the expert helping you tonight.

This case has unique facts because they raised their claim in bankruptcy court and argued it there and then tried to sue.As you state this is not the case with your situation and there would not be a res judicata issue.

Here are the elements of such a suit..

“To recover on a claim of legal malpractice based o

n negligence, a plaintiff must prove

three essential elements: (1) the employment of the

defendant attorney; (2) the defendant

attorney’s neglect of a reasonable duty; and (3) th

e negligence resulted in and was the proximate

cause of loss to the plaintiff.”

Rancho del Villacito Condos., Inc. v. Weisfeld

, 121 N.M. 52, 55-

56, 908 P.2d 745, 748-49 (1995);

see also

Bassett v. Sheehan, Sheehan & Stelzner, P.A.

, 2008-

NMCA-72, ¶ 7, 144 N.M. 178, 184 P.3d 1072;

Akutagawa v. Laflin, Pick & Heer, P.A.

, 2005-

NMCA-132, ¶ 11, 138 N.M. 774, 126 P.3d 1138;

Glenborough Corp. v. Sherman & Howard

,

121 N.M. 253, 256, 910 P.2d 329, 332 (Ct. App. 1995

You have four years to bring such a suit here in NM..

Legal Malpractice, 4 years

N.M. Stat. § 37-1-4

Lawyer referral for you here..

https://www.justia.com/lawyers/legal-ethics-malpractice/new-mexico

I hope you will pursue recovery here for all your wrongs.You may have totally different facts and situation here.

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Customer reply replied 2 years ago
Are you clear that this was also a bankruptcy case for me ?
Bankruptcy Lawyer: Ray, Lawyer replied 2 years ago

Then you would have right to argue for fees first in bankruptcy as the other party did , court might see it differently as you have different facts.If you have been through bankruptcy you are still able to sue if you did not file a claim here in bankruptcy.Your situation will be different than this case here. It might have a very different outcome.

Thanks for letting me clarify here.

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Customer reply replied 2 years ago
Just to be clear. I fired my bankruptcy atty back in March. It was a Chapter 11. He filed to have his fees approved in April. The bankruptcy was converted from an 11 to a 7, because a plan was not filed on time. Part of the reason I want to sue the atty. I did not contest his fees. Nothing has been contested. Does rez judicata apply ?
Bankruptcy Lawyer: Ray, Lawyer replied 2 years ago

It shouldn't because fees were not presented during the bankruptcy.Also this was converted to Chapter7, different facts here should not be barred by the prior case.

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Customer reply replied 2 years ago
Are you a bankruptcy attorney ?
Bankruptcy Lawyer: Ray, Lawyer replied 2 years ago

I have been involved in bankruptcies and am familiar with the law on the subject.

Thanks again I wish you good luck here with your suit.Sorry you had this happen to you.

Have a great labor day weekend.

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Customer reply replied 2 years ago
I am sorry can I please work with a bankruptcy attorney on this.
Bankruptcy Lawyer: Ray, Lawyer replied 2 years ago

Sure be happy to opt out.Stand by and do not rate.It will be picked up by others.

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Customer reply replied 2 years ago
I have not heard from anyone yet ?
Bankruptcy Lawyer: mmdesq, Attorney replied 2 years ago
mmdesq
mmdesq, Attorney
Category: Bankruptcy Law
Satisfied Customers: 518
Experience: Attorney with 13 years experience.
Verified

Good Morning:

I will try to answer your question.

If you were noticed of your attorney's request to have his fees approved, which is required. Then you had an opportunity to raise your arguments before the bankruptcy court. I believe this will create a significant problem for asserting malpractice as it could be res judicata. I think your situation will also be difficult because from the facts is sounds like you were aware of his failure to file the plan at the time he was seeking approval of his fees. I am sorry to say but it is my opinion you will not be successful because of res judicator. I do practice bankruptcy law. I am sorry to be the barer of bad news, but this is my opinion based upon your facts provided.

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Bankruptcy Lawyer: mmdesq, Attorney replied 2 years ago

You could try to file for an ethical violation with the State Bar based upon his conduct as an alternative.

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Customer reply replied 2 years ago
I was pro se when all this was going on, does that make a difference.
Bankruptcy Lawyer: mmdesq, Attorney replied 2 years ago

Unfortunately not. If you received notice of his Application to Approve Fees and did not respond the court could easily say you had an opportunity to raise concerns before the Judge and did not so the Judge made a decision and entered an Order. Res Judicata is designed to prevent re-litigation of issues already ruled upon.

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Customer reply replied 2 years ago
I would not call what happened litigation.
Customer reply replied 2 years ago
Would there be any way to pass a law to deal with this unfair loophole ?
Bankruptcy Lawyer: mmdesq, Attorney replied 2 years ago

I do not believe so because the reason would be that you had an opportunity to raise any concerns when notified of the hearing to approve attorney fees. I am sure this answer is not what you want to hear, but it is accurate. please don't shoot the messenger.

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mmdesq
mmdesq
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Category: Bankruptcy Law
Satisfied Customers: 518
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