Legal Malpractice Claims Not Assignable to Third Parties

• Pages: 24-25
• Date: 01 July 2024
• Author: Sara E. Costello
• Subject Matter: Civil Law

Plagiarism Douses

Defense in First

Amendment Case

By Shirin Afsous, Litigation News

Contributing Editor

A federal district court has punished a

lawyer for copying and pasting oppos-

ing counsel’s motion in limine and f‌il-

ing it as her own the next day. ABA

Litigation Section leaders believe

that the decision is appropriate under

the circumstances and highlights the

importance of adhering to the Rules of

Professional Conduct.

In Stilp v. Borough of West Chester,

the plaintis f‌iled suit after a local

municipality interfered in their f‌lag-

burning protest on the courthouse

steps. The plaintis claimed that the

burn ordinance relied on by the defen-

dant borough was unconstitutional,

in violation of the First Amendment.

The claim survived summary judgment

and proceeded to trial. On the eve of

the deadline for motions in limine, the

plaintis moved to exclude lay opin-

ion testimony by a police ocer, to

be oered by the defendant, on the

grounds that he did not have special-

ized expert knowledge regarding the

safety of the f‌lag-burning demonstra-

tion. The following day, counsel for

the defendant f‌iled a virtually identical

motion, seeking to preclude lay opinion

testimony of the plaintis on the same

grounds.

The attorneys for the plaintis

moved to strike the defendant’s motion

and also moved for sanctions. The U.S.

District Court for the Eastern District of

Pennsylvania concluded that the “bla-

tant similarities” between the motions

and accompanying briefs were “ines-

capable.” It found that counsel for the

defendant had “lifted word-for-word”

from the plaintis’ motion.

The court stated, “…there can be no

serious argument that [counsel’s] f‌il-

ings were not the product of plagia-

rism.” Ultimately, and after “some initial

reticence,” counsel for the defendant

admitted that she had plagiarized the

motion.

The court granted sanctions and

awarded attorney fees based on the

court’s inherent authority to do so

when a party has acted in bad faith,

vexatiously, wantonly, or for oppres-

sive reasons. The court found that the

number of hours listed by the plaintis’

counsel was greater than reasonably

necessary, but still awarded plaintis

$8,483.55 in fees and costs.

The court discussed the “disser-

vice” to the defendant due to counsel’s

plagiarism. “In substituting plagiarism

for preparation, counsel presented

an unreasoned, error-f‌illed f‌iling and

placed both her client’s motion and

potential for alternative resolution at

risk.” Finding that the lawyer’s conduct

was “objectively unreasonable in light

of her ethical obligations,” the court

imposed the sanctions award upon

counsel but not upon the defendant.

Cut-and-paste brief‌ing is inconsis-

tent with eective client advocacy.

“One cannot rely on arguments formed

and articulated by another attorney.

Doing so with opposing counsel’s argu-

ments shows that the defendant’s

counsel sought not only to lift the legal

reasoning, but also to avoid any sort

of factual analysis required for ade-

quate client representation,” observes

Tiany Rowe, Washington, DC, cochair

of the Litigation Section’s Professional

Liability Litigation Committee.

Some Section leaders suggest that

the court might have addressed this

issue in a dierent way. “Sloppy work

makes a brief less persuasive, and an

unpersuasive brief is more likely to

be denied than a well-written one,”

asserts Michael S. LeBo, cochair of

the Section’s Young Lawyer Leadership

Program and cochair of the Ethics

subcommittee of the Commercial &

Business Litigation Committee. “The

judge’s f‌irst priority should have been

the merits. The court could have denied

the motion due to a lack of merit. The

focus should have been cutting and

pasting to the extent that the motion

did not make sense, and the merits of

the motion were not there,” suggests

LeBo.

Even though the sanctions in this

case were imposed on the lawyer

rather than the client, Section leaders

believe counsel’s plagiarism can cre-

ate signif‌icant client risks. Noting that

Pennsylvania Rules of Professional

Responsibility applied in this case,

Rowe observes that “not only has coun-

sel jeopardized her own good standing

with the Pennsylvania bar, but she has

also exposed her client to allegations of

bad faith in the course of the litigation.”

Legal Malpractice

Claims Not

Assignable to Third

Parties

By Sara E. Co stello, Litigation News

Team Editor

A federal court of appeals has reaf-

f‌irmed the general rule that legal mal-

practice claims cannot be assigned. The

Thompson v. Harrie ruling allowed a law

f‌irm to avoid potential liability because

it did not have an attorney-client rela-

tionship with the putative assignee of

the malpractice claim. ABA Litigation

Section leaders commend the ruling

but also predict that more courts will

ultimately allow assignment of malprac-

tice claims.

Following a fatal car crash, the

estate of the deceased driver sued

the other driver in South Dakota state

court. After discovering that the defen-

dant’s lawyer was neither licensed in

the state nor admitted pro hac vice, the

plainti moved to quash the answer

signed by the lawyer. Although the law-

yer then moved for pro hac vice admis-

sion, the court denied the request and

entered default judgment.

Later, the plainti entered into a set-

tlement agreement with the defendant.

The plainti agreed that she would not

execute on the judgment if the defen-

dant assigned any claims, including

malpractice claims, against the lawyer’s

f‌irm to her.

Alleging that the lawyer commit-

ted malpractice, the plainti f‌iled a

complaint against the law f‌irm in state

court. The defendant removed the case

to the U.S. District Court for the District

of South Dakota. Arguing that legal

malpractice claims are not assignable,

the law f‌irm moved to dismiss the mal-

practice claim.

The district court dismissed the

claim, and the Court of Appeals for the

Eighth Circuit armed the dismissal,

predicting that “the South Dakota

Supreme Court would prohibit the

assignment of legal malpractice claims.”

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