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practice claims as litigation. One attorney
advised a family corporation on a structured buy-out but failed to advise it to include a covenant not to compete in the
sale.19 Attorneys certified title to a mortgaged property improperly citing marketability.20 Another attorney failed to turn
over title information to a client before
closing.21 Another attorney was accused
of failing to inform his client to change the
beneficiary designation on a retirement account from ex-girlfriend to daughter before his death.22
Negligent preparation of deeds and
property transfer tax returns was the allegation in State v. Therrien (2003). The
deeds contained fractional rights in community water systems although permits required individual wells in some cases; in
others, where lots would share septic system, the deeds were silent; the transfer returns certified compliance with Act 250 and
subdivision regulations, despite that permit violations persisted.23 In another deed
case, an attorney drafted a deed that relied on a sketch drawn by him on a survey
showing the location of a brook, which was
mistaken, which led to litigation between
buyer and seller.24 An attorney failed to discover a subdivision permit violation in his
title search, according to the complaint,
when, after the home was purchased, the
town found violations of setbacks.25
A firm certified that a party was fully secured, but missed certain financing statements, and upon the debtor’s bankruptcy,
the creditor suffered a loss.26 A lawyer misinterpreted whether a claim for recovery of
maintenance of the client’s father in his last
years had been approved by the Probate
Court (it had not) and failed to file a petition for allowance within 60 days, which
was later filed and deemed untimely.27
Only one criminal malpractice case appears in the list, where the attorney had the
client polygraphed and stipulated to the
admissibility of the test results, in preparing to defend him in an assault case. The
client also claimed the attorney had abandoned him, by moving to withdraw, but the
Supreme Court left the matter at rest.28
This survey of the reasons cited by plaintiffs for lawyer malpractice is not a list of
compensated claims, as only two or three
of them actually resulted in a damage
award.
Ruminations
torney was able to refile the complaint. As
there was no injury to the client other than
anxiety, the malpractice action was dismissed without any penalty to the lawyer.9
Another case involved the failure to bring
suit against a railroad within three years of
accident as required by federal law.10
An attorney, after declining to take her
case, told a client that the two-year statute of limitations for wrongful death began when she was appointed executrix of
her aunt’s estate, which he later conceded was wrong, as the clock actually began
when a predecessor executor had been
appointed. This was only one of the charges against the attorney. Others included
challenges to the attorney’s trial strategy.
The jury awarded the verdict to the attorney, and on appeal the high court affirmed,
finding no abuse of discretion in the trial
judge’s decisions in post-trial motions. “Indeed, when plaintiff chose to be represented by counsel, she also chose to abide by
his professional judgment regarding such
decisions,” according to the court.11
When attorneys sued for their fees, the
unsurprising responsive pleading included
a malpractice counterclaim, alleging the attorneys’ failure to file a motion to dismiss
a real estate broker’s claim against a client for breach of implied covenant of good
faith and fair dealing. At trial, the presiding judge decided this motion would have
been unnecessary, as the issue was already
addressed as a breach of contract claim.
The Supreme Court affirmed the ruling on
appeal.12
A client sued his attorney for malpractice asserting that the lawyer agreed to
take care of permit inadequacies—filing an
engineer’s certification of fill to satisfy Act
250—when years later it turned out nothing had been done. The jury found the client 56% negligent compared to the attorney’s 44%, a verdict for the attorney.13 In
another example, an attorney was accused
of failing to establish jurisdiction over a client’s ERISA claim, the case having been
dismissed by the federal court. The client’s
only hope for relief was to turn on the lawyer.14
Some examples are more egregious. In
one case, a lawyer conceded certain facts
in a juvenile hearing on behalf of his clients, resulting in the loss of custody of their
son, a mistake later corrected by a successor attorney.15 In another case, an attorney
was accused of pressuring his client to sell
his home to pay legal fees, threatening to
abandon the client if the fee weren’t paid,
and of having a conflict of interest.16 Another was accused of failing to attach net assets of individuals to enforce a judgment.17
Another settled a judgment, taking notes
which he then sold at a discount, without
his client’s knowledge or consent.18
Transactional law garners as many mal-
Judgmental Immunity/
Sovereign Immunity
Accused of breaching the standard of
care by failing to research and advise clients of the ambiguous meaning of a statute relating to subdivision, seven Orleans
County lawyers were sued for malpractice.
The action was dismissed. In 2003, the Supreme Court affirmed the dismissal of the
THE VERMONT BAR JOURNAL