Comments on: “Sins of the Lawyer”: Seventh Circuit Rules Against Company in Legal Malpractice Case

By: rafflaw

rafflaw — Thu, 02 Jul 2009 02:28:37 +0000

When I was in private practice as a sole practitioner, it was very difficult to maintain malpractice insurance. The first 5 years I was able to pay it, but after that, it became too expensive. It was scary, but I had no choice.

By: mespo727272

mespo727272 — Thu, 02 Jul 2009 00:12:56 +0000

AY:

“Equity may abhor a forfeiture, but apparently the Seventh Circuit has no such qualms.

***********************

Did I misread the statement that Federal Courts are the General Courts of Equity? Maybe some opinion, somewhere, someplace, sometime.”

*****************

U.S. Constitution
Article III

Section 1. The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

Section 2. The judicial power shall extend to all cases, in law and EQUITY, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;–to all cases affecting ambassadors, other public ministers and consuls;–to all cases of admiralty and maritime jurisdiction;–to controversies to which the United States shall be a party;–to controversies between two or more states;–between a state and citizens of another state;–between citizens of different states;–between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects. [emphasis added]

Right you are again!

By: Jim Byrne

Jim Byrne — Wed, 01 Jul 2009 22:38:00 +0000

A number of states are considering mandatory malpractice insurance (which would have been nice in this case). This seems to benefit the large firms, but increases the burden on struggling solo and small firms. Any thoughts?

By: Mike Appleton

Mike Appleton — Wed, 01 Jul 2009 18:01:53 +0000

The truth is that decisions in this type of situation are all over the board. It typically is treated as a discretionary determination by the trial court. The rationale is that the actions of the lawyer as agent are attributable to the client as principal and that the client is free to pursue a malpractice action against his attorney. The difficulty with a malpractice suit (in addition to the lack of insurance in this instance) is that the client must establish (to prove damages) that it would have prevailed had it been able to proceed with the case on its merits. In addition, negligence per se is not necessarily a disciplinary issue. And even if the lawyer in this case is suspended or disbarred, that won’t restore the client’s economic position.

There is no simple solution. My preference would be for the court to grant a timely filed motion to vacate, as suggested by Jim Byrne, and to impose monetary sanctions against the offending lawyer under the court’s inherent authority to enforce compliance with the rules and control its docket.

By: Jim Byrne

Jim Byrne — Wed, 01 Jul 2009 17:40:45 +0000

Ineffective assistance of counsel must be expanded to include civil actions.

If, in a criminal case, an attorney was blatantly ineffective, and the judge fined you $500K. That decision would/should be reversed and remanded on appeal.

However, when the same thing is done in a civil setting; it’s too bad -tough cookies?

A default judgment should only be permitted to stand if it is clear that there is no intent to challenge a claim. A motion to vacate should have been submitted and sustained.

When judicial economy becomes overtly harmful; judicial economy must give way to fairness.

By: Mike Spindell

Mike Spindell — Wed, 01 Jul 2009 15:13:06 +0000

My distinct, albeit non-legal opinion, is that had the case been tried and lost, than too bad, judgment stands. However, given that the attorney’s incompetence led to a default judgment, then fairness demands a “do-over.” Isn’t the real problem though, and it seems to me rarely addressed, that we have so underfunded our Court Systems and created thereby a
logjam that requires such rulings just to move business along, the entire system is then flawed. The idea that many civil and criminal cases take years to be heard, with the entailed huge expense for lawyers fees, gives lie to the maxim “justice swift and certain.”

Judges themselves bear some responsibility, ala the Minnesota Senatorial case, should the Minnesota Supreme Court have taken so much time to rule unanimously?

By: Anonymously Yours

Anonymously Yours — Wed, 01 Jul 2009 13:36:24 +0000

eniobob 1, July 1, 2009 at 9:13 am

Well believe it or not if the attorney in question should face charges he will find a shoulder to cry on here:
********************************

I thought, yes I did. Got me in trouble again. That at first you were being sympathetic. I then read the link, you are cruel. But that is funny.

By: Anonymously Yours

Anonymously Yours — Wed, 01 Jul 2009 13:28:55 +0000

mespo727272 1, July 1, 2009 at 9:26 am

Equity may abhor a forfeiture, but apparently the Seventh Circuit has no such qualms.

***********************

Did I misread the statement that Federal Courts are the General Courts of Equity? Maybe some opinion, somewhere, someplace, sometime.

By: mespo727272

mespo727272 — Wed, 01 Jul 2009 13:26:30 +0000

Equity may abhor a forfeiture, but apparently the Seventh Circuit has no such qualms.

By: eniobob

eniobob — Wed, 01 Jul 2009 13:13:31 +0000

Well believe it or not if the attorney in question should face charges he will find a shoulder to cry on here:

http://wallstreetprisonconsultants.com/

By: Alan

Alan — Wed, 01 Jul 2009 13:05:08 +0000

The attorney should be disbarred in order to protect the public. I would hope that the Court has referred this attorney to the appropriate disciplinary authority, or that he is otherwise being investigated.

By: Alan

Alan — Wed, 01 Jul 2009 12:52:14 +0000

I think you want to end (turn off) the quote (“The court stated…”) before the part that starts “I have mixed feelings about this ruling.”

By: Anonymously Yours

Anonymously Yours — Wed, 01 Jul 2009 12:27:53 +0000

This is BS. But I understand the need for finality in a Judgment. But come on a default? Well with the US Sct and Roberts unless the state gives you the right, you don’t have it with us.