Vermont Bar Journal, Vol. 40, No. 2 - Page 10

by Paul S . Gillies , Esq .

RUMINATIONS Legal Malpractice in Vermont

An attorney defeated in the trial court is said to have two inalienable rights : ( 1 ) He may go down to the inn ..., or to his club in town , and cuss the court and / or jury ; and ( 2 ) He can take an appeal . Justice Thomas Hayes , State v . Jewett ( 1985 ). 1
Clients have the same rights , and one alternative . They can blame the lawyer , claiming that most disagreeable thing , namely , legal malpractice . It lurks behind every case , every client , ready to jump on us unexpectedly , and distract us from everything else that is good in life . Lawyers make mistakes . Sometimes they are tragic , sometimes negligent , sometimes negligible .
Beginning in 1824 , there are a total of 38 reported cases that have reached the Vermont Supreme Court on appeal relating to legal malpractice , 27 of them resulting in a verdict for the lawyer affirmed on appeal . Of the 17 decisions issued in this century , 15 hold that no malpractice was proven . The available decisions of the trial courts , beginning in 2001 , reveal another 40 decisions relating to this depressing subject . The numbers give no comfort . The experience of being accused by a former client , with the resulting trauma to the mind and reputation , can be the most distracting and career-altering experience . To some , the experience can be the last straw , where retirement or a new career seems more inviting than ever .
Only a handful of the reported cases reached a jury . Motions for summary judgment decided the majority of the claims , the plaintiff usually suffering dismissal because of evidentiary or procedural failures . By these cases , one might conclude that it is difficult to be held liable for legal malpractice .
The state ’ s leading lawyers have been tried for legal malpractice , including Thomas Hutchinson , Isaac Cushman , Edward Barber , and E . J . Phelps , some of the greatest Vermont attorneys of the nineteenth century . Hutchinson later became Chief Judge of the Vermont Supreme Court . Former Justice Frank Mahady was also sued for malpractice before he was elevated to the trial bench . It is not a club anyone seeks to join and dismissal is no relief . Even when the charges are baseless , there is that suggestion of impropriety as the accused ’ s professional competence becomes a public spectacle .
Malpractice is different from misconduct , as defined by and sanctioned by the Vermont Supreme Court . The remedy of malpractice is damages , where the sanctions of disbarment , suspension , reprimand , or admonishment are not involved . Just last year , the high court ruled that there can be legal malpractice without misconduct . For failing to reduce a contingent fee arrangement to writing , an attorney received the sanction of admonishment from the Supreme Court . The attorney had lost a malpractice suit brought against him by a former client , and was required to repay some or all of the fees he had received . The Court held that the fact that there had been an award of fees “ would be considered neither aggravating nor mitigating ” on the question of misconduct . 2 The Vermont Rules of Professional Conduct hold that “ under general principles of tort law , violation of a rule is not , by itself , a basis for civil liability , and the rules are presumably admissible as evidence of the standard of care in a malpractice action .” 3
There also might be misconduct without malpractice . But those are defenses . Reviewing what the high court has said about malpractice can ’ t be a wasted effort . The subject is best viewed objectively . Knowing what lawyers were accused of doing or not doing , even in cases where a court never reached a decision to punish the lawyer , underscores the ethical and practical challenges of surviving in this profession with dignity , or with at least some crude form of reputation intact .
There is a natural resistance to reading what others have done wrong , because it reminds us of our own vulnerabilities . What ’ s worse , what constitutes legal malpractice is not always predictable . Vermont lawyers were admonished by Justice Hayes in State v . Jewett ( 1985 ) not to neglect the Vermont Constitution in arguing on behalf of their client ’ s claims . The justice quoted Oregon Justice Hans Linde that such failures are “ skating on the edge of malpractice .” 4 The opportunities for exposure are omnipresent .
What Lawyers Did or Were Said to Have Done
Lawyers are accused of malpractice for errors of both omission and commission . Failing to file an appeal is a common complaint , although such a failure is non-compensable if the case would have been lost on appeal anyway . That was the decision in Weisburgh v . Mahady ( 1986 ), where attorneys failed to timely file a defamation action against news media . This , the court concluded , is not attorney malpractice , as the news media enjoys a qualified privilege , so that the underlying tort was not actionable . 5 As with other decisions , the court decided this case by applying a test that considers whether the negligence would have mattered , had the case actually been tried .
The earliest reported Vermont decision on malpractice was Crooker v . Hutchinson ( 1824 ). Titus Hutchinson failed his client by not pursuing the collection of a debt as far as the law would allow , including filing a writ of scire facias . This was a collection action against a man who provided bail to allow Charles Willard , the debtor , out of jail . Willard fled Vermont , Hutchinson was sued by the creditor , and was required to pay damages . 6
In a more recent example , an attorney filed a motion for summary judgment on behalf of a client , but never filed a reply , or even an answer , affirmative defenses , or counterclaim . He recommended signing a stipulation that prevented the raising of additional defenses , without informing his client , who happened to be blind , of the consequences . He failed to provide defenses and keep his client informed . The client was awarded damages for the consequences of these failures , but on appeal the damages for emotional distress were stripped from the award , based on the general rule that disallows recovery in absence of either physical impact or substantial bodily injury or sickness . 7
The attorney in another matter told the client he had filed a complaint in a defective automobile case , which wasn ’ t true , and the statute of limitations ran on the claim . The client demanded payment , the attorney delayed , and then the client , who proceeded pro se against the lawyer , began filing repetitive and incomprehensible motions . Despite the attorney ’ s initial wrongdoing , on appeal , the high court sanctioned the client for violating Rule 11 and upheld the lower court ’ s decision to prohibit him from filing motions unless they were first approved by a lawyer . 8
An attorney delayed filing a medical claim within 90 days , as required by the insurance policy , and neglected to file a complaint . Even though the mistake was potentially fatal to the claim , a successor at-
10 THE VERMONT BAR JOURNAL • SUMMER 2016 www . vtbar . org
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