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mmdesq, Attorney
Category: Bankruptcy Law
Satisfied Customers: 518
Experience:  Attorney with 13 years experience.
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If you look up Pierce Vs Potter in New Mexico you will see a

Customer Question

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: 1 year ago.
Category: Bankruptcy Law
Expert:  Ray replied 1 year ago.

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..

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

Customer: replied 1 year ago.
Are you clear that this was also a bankruptcy case for me ?
Expert:  Ray replied 1 year 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.

Customer: replied 1 year 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 ?
Expert:  Ray replied 1 year 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.

Customer: replied 1 year ago.
Are you a bankruptcy attorney ?
Expert:  Ray replied 1 year 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.

Customer: replied 1 year ago.
I am sorry can I please work with a bankruptcy attorney on this.
Expert:  Ray replied 1 year ago.

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

Customer: replied 1 year ago.
I have not heard from anyone yet ?
Expert:  mmdesq replied 1 year ago.

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.

Expert:  mmdesq replied 1 year ago.

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

Customer: replied 1 year ago.
I was pro se when all this was going on, does that make a difference.
Expert:  mmdesq replied 1 year 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.

Customer: replied 1 year ago.
I would not call what happened litigation.
Customer: replied 1 year ago.
Would there be any way to pass a law to deal with this unfair loophole ?
Expert:  mmdesq replied 1 year 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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