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Ethics & Professional Responsibility FLASHPOINTS September 2019

September 13, 2019Print This Post Print This Post

Terrence P. McAvoy & Katherine G. Schnake
Lawyers for the Profession, Hinshaw & Culbertson LLP, Chicago
312-704-3000 | E-mail Terrence P. McAvoy | E-mail Katherine G. Schnake

Attorney’s Discharge Before Statute of Limitations Expired Severed Any Causal Connection in Malpractice Claim

In Bush v. Eichholz, No. A19A1388, 2019 WL 3852215 (Ga.App. Aug. 16, 2019), a personal injury client brought suit against his former law firm for legal malpractice. Because the client terminated the representation before the statute of limitations expired, however, the law firm’s alleged negligence was not the proximate cause of the plaintiff’s loss.

In July 2014, the plaintiff retained the defendant law firm and one of its partners (“defendants”) to represent him in a workers’ compensation action and in connection with tort claims arising out of a workplace injury. The plaintiff was injured in the course of his employment as a longshoreman when a crane operator, a Georgia Ports Authority (GPA) employee, accidentally lifted a truck with the plaintiff inside. After the truck was dropped to the ground, the plaintiff fell from the truck and injured his back.

The defendants sent an ante litem notice, a prerequisite to filing suit, to the GPA, notifying it of the injury and potential claim. The defendants then received a response, indicating that the GPA had received correspondence from the defendants, but the GPA had investigated the incident and concluded there was no negligence. Because of this response, the defendants determined they no longer wanted to represent the plaintiff. The defendants’ paralegal then called the plaintiff and explained that the defendants “would no longer represent [him] in connection with his prospective personal injury claim against the [GPA].” 2019 WL 3852215 at *1. She also explained to the plaintiff that his claim may be subject to a time limitation, and that he should seek alternative representation as soon as possible if he wished to pursue the claim. The paralegal then sent the plaintiff a letter by certified mail, dated August 25, 2015, which indicated that the defendants would continue to represent the plaintiff in the workers’ compensation claim, but not with regard to his “date of loss.” Id. The plaintiff claimed he could not recall the conversation and never received the letter.

After becoming “dissatisfied with the [defendants],” the plaintiff consulted with another firm, Schneider Hammers, LLC, on the same date the defendants sent the termination letter. 2019 WL 3852215 at *5. The conversation with Schneider concerned representing the plaintiff in a workers’ compensation claim and a tort action against the GPA. Schneider sent the plaintiff a “new client package,” containing two retainer agreements, one of which was for the tort claim against the GPA. 2019 WL 3852215 at *2. The plaintiff signed the retainer agreement and returned it to Schneider. Around this time, the plaintiff obtained a disk from the defendants containing everything in the plaintiff’s file.

Later, the disk was lost, and the plaintiff did not contact the defendants for a replacement. In the meantime, the plaintiff had sent documents to Schneider, who understood the documents the plaintiff sent (which did not include the ante litem notice) comprised the plaintiff’s entire file. Because Schneider believed that an ante litem notice was not timely sent, Schneider elected not to pursue the tort claim. The plaintiff then consulted with other counsel in 2016, and he learned the statute of limitations had expired on his claim.

The plaintiff then filed suit against the defendants, alleging that he “discharged [them] effective August[ ] 2015,” but that they committed legal malpractice and fraud. 2019 WL 3852215 at *1. The plaintiff also claimed the defendants sent a defective ante litem notice and attacked the defendants’ use of television ads and billboards as “false and misleading” advertising. The trial court rejected these arguments, and the plaintiff appealed.

In addressing the plaintiff’s legal malpractice claim, the appellate court first noted that because the ante litem notice was sufficient, any legal malpractice claim based on deficient notice failed. The plaintiff also argued the defendants were negligent by preventing him from obtaining counsel to pursue his tort claim against the GPA. The court held, however, that the record established that the plaintiff discharged the defendants before the statute of limitations expired when he retained subsequent counsel, Schneider, and the defendants were thus not the proximate cause of the loss of the tort claim against the GPA.

The plaintiff admitted he discharged the defendants in August 2015 and retained Schneider for both the workers’ compensation claim and the tort claim, nine months before the statute of limitations expired. The plaintiff argued the defendants were not terminated as to the tort claim, but the court held the evidence in the record led to the conclusion that the termination was effective as to the tort claim. The court concluded that the defendants’ potential liability was severed as of the date of termination, which was before the statute of limitations expired.

Further, the plaintiff argued the defendants were negligent and caused his loss of the tort claim by failing to provide him with a copy of the ante litem notice and not explaining the significance of said notice to him. The court disagreed, however, and found that the defendants could not be found negligent because the plaintiff lost the disk of case materials and failed to ask for another copy. The court noted it was not reasonably foreseeable that the plaintiff would lose the disk and not contact the defendants for a replacement or that subsequent counsel would not verify whether or not the notice had been sent. Summary judgment in favor of the defendants was affirmed on the basis that the plaintiff could not establish that the defendants’ alleged negligence was a proximate cause of the plaintiff’s loss of the tort claim against the GPA.

This decision is yet another case that supports the proposition that an intervening, superseding cause — such as the client’s retention of subsequent counsel when a claim is still viable, or a trial court’s error — may sever any causal connection between the initial attorney’s alleged negligence and the claimed loss. See, e.g, Mitchell v. Schain, Fursel & Burney, Ltd., 332 Ill.App.3d 618, 773 N.E.2d 1192, 266 Ill.Dec. 122 (1st Dist. 2002); Rocha v. Rudd, 826 F.3d 905 (7th Cir. 2016) (plaintiff’s legal malpractice action was dismissed because his claims were still viable when he discharged defendant and retained other counsel); Huang v. Brenson, 2014 IL App (1st) 123231, 7 N.E.3d 729, 379 Ill.Dec. 891 (trial court’s error in underlying case constitutes intervening, superseding cause of plaintiff’s claimed damages).

For more information about ethics and professional responsibility, see ATTORNEYS’ LEGAL LIABILITY — 2018 EDITION. Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

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