Ruminations, 16 VTBJ, Summer 2016-#10

Author:Paul S. Gillies, Esq., J.


Vol. 42 No. 2 Pg. 10

Vermont Bar Journal

Summer, 2016

Paul S. Gillies, Esq., J.

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-com-pensable 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 attorney 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.9Another 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...

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