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This page is a compilation of some of the recent developments in our firm’s Practice Areas. To check for updates in your area of interest, simply click on the Practice Area to your left.

Legal Malpractice Defense

Kelly v. Logan, Jolley, & Smith, L.L.P., 383 S.C. 626, 682 S.E.2d 1 (Ct. App. 2009).
Opinion No. 4547, decided May 18, 2009.

The plaintiff gave birth to a son who suffered from severe injuries as a result of improper delivery procedures. The plaintiff contacted a Georgia attorney, who then associated South Carolina counsel and filed a medical malpractice action, naming the child’s natural father and the plaintiff, in her capacity as representative of the child, as plaintiffs. The case proceeded on for several years, and eventually the plaintiff was dismissed from the case. Shortly thereafter, the remaining defendants settled and the plaintiff received no funds from the settlement. Nearly three years later, the plaintiff filed this legal malpractice action against the South Carolina attorneys, alleging that they failed to represent her individual interests in the medical malpractice suit. The trial court granted summary judgment to the attorneys on the grounds that the statute of limitations had run, and the South Carolina Court of Appeals affirmed. The court found that there were multiple occasions, all more than three years before the plaintiff filed the legal malpractice case, on which she should have been put on notice that she might have a claim against the attorneys. The court further held that the attorneys were not equitably estopped from asserting the statute of limitations as a defense.

Rydde v. Morris, 381 S.C. 643, 675 S.E.2d 431 (2009).
Opinion No. 26619, decided March 23, 2009.

Approximately one month before her death, the decedent engaged an attorney to prepare her estate planning documents. A few days before becoming completely nonresponsive, the decedent provided a completed estate planning questionnaire to the attorney, but the attorney did not draft a will in time for execution before the decedent’s death. As a result, the decedent’s estate passed through intestacy, and several individuals whom the decedent had contemplated as beneficiaries brought this malpractice action against the attorney for failure to timely draft a will. The trial court dismissed the case and the South Carolina Supreme Court affirmed. Relying on settled principles of South Carolina case law, as well as reported decisions from other states, the court adamantly rejected the plaintiffs’ invitation to impose on attorneys a duty in favor of non-client prospective beneficiaries to draft wills in a timely manner.

Ross Marine, LLC v. Query, Sautter & Gliserman, LLC, 380 S.C. 494, 671 S.E.2d 604 (2009).
Opinion No. 26578, decided January 12, 2009.

An employee recommended his personal attorneys to his employer, and the attorneys subsequently represented the employer in several legal matters. After the employer terminated the employee, the employee retained the attorneys to represent him in a suit against the employer. The employer sought an injunction prohibiting the attorneys from representing the employee, arguing that the attorneys had a conflict of interest. The trial court denied the injunction, holding that the employer failed to establish a conflict of interest. Both the South Carolina Court of Appeals and the South Carolina Supreme Court affirmed. However, while the case was pending, the employer had filed a separate lawsuit for injunctive relief against the attorneys. The trial court dismissed the new lawsuit on the merits and under the doctrine of collateral estoppel. On appeal, the South Carolina Supreme Court affirmed, holding that because the employer had a full and fair opportunity to litigate the conflict of interest in the first lawsuit, collateral estoppel barred the new lawsuit.

Eadie v. Krause, 381 S.C. 55, 671 S.E.2d 389 (Ct. App. 2008).
Opinion No. 4472, decided December 22, 2008.

The plaintiff filed this legal malpractice claim against a South Carolina attorney on the grounds that the attorney’s actions prevented the plaintiff from recovering workers’ compensation benefits in Tennessee. The trial court granted summary judgment to the attorney, and the South Carolina Court of Appeals affirmed. The court found that the plaintiff could not show that he would have prevailed on his Tennessee workers’ compensation claim if not for the attorney’s alleged malpractice because the attorney could not have foreseen the Tennessee Supreme Court’s application of Tennessee law to bar the plaintiff’s workers’ compensation claim.

Ex parte Bland, 380 S.C. 1,667 S.E.2d 540 (2008).
Opinion No. 26547, decided September 22, 2008.

Through discovery in a legal malpractice case, two attorneys obtained copies of the policy manuals of a large South Carolina law firm. The case eventually settled, and the consent order of dismissal contained strict confidentiality requirements, including that any confidential documents would be returned to the party who produced them, and provided for damages if any party breached the confidentiality agreement. In later litigation against the same law firm, the attorneys realized they had inadvertently retained copies of the law firm’s policy manuals, and they subsequently used the manuals as exhibits in a deposition. The law firm filed a motion to enforce the confidentiality agreement and sought damages and attorneys’ fees from the attorneys. The circuit court denied the motion, but the South Carolina Supreme Court reversed, holding that the attorneys clearly violated the confidentiality agreement and were in contempt. The court remanded to the circuit court for an award of damages and attorneys’ fees to the law firm.

Ex parte Gregory, 378 S.C. 430, 663 S.E.2d 46 (2008).
Opinion No. 26504, decided June 16, 2008.

The plaintiff filed a lawsuit against her former attorney, alleging multiple causes of action, including conversion. The plaintiff believed that her former attorney had wrongly retained her settlement funds from a previous action. Seven weeks after filing the action, the plaintiff dismissed the case with prejudice. The former attorney filed a motion for sanctions and attorneys’ fees under Rule 11, SCRCP, and the South Carolina Frivolous Proceedings Sanctions Act (the “Act”). The trial court found that the plaintiff’s attorney had not conducted a reasonable investigation before filing the conversion suit and awarded the former attorney attorneys’ fees and costs incurred defending the suit and seeking sanctions. On appeal, the South Carolina Supreme Court affirmed, finding that the trial court had not abused its discretion by concluding that the conversion action was frivolous and awarding attorneys’ fees and costs. The court also rejected the plaintiff’s attorney’s argument that the Act does not permit the recovery of fees and costs incurred in seeking sanctions.

Spence v. Wingate, 378 S.C. 486, 663 S.E.2d 70 (Ct. App. 2008).
Opinion No. 4370, decided April 17, 2008.

The life insurance benefits of a deceased congressman were divided between the congressman’s widow and his four sons. However, the widow believed the benefits should have been distributed exclusively to her. She filed this legal malpractice action against the attorneys for her deceased husband’s estate, alleging negligence, professional negligence, breach of fiduciary duty, and civil conspiracy. The trial court granted the attorneys’ motion for partial summary judgment, holding that pursuant to S.C. Code Ann. § 62-1-109, the attorneys had no duty to the widow with respect to her husband’s life insurance policy. On appeal, the widow argued that the attorneys’ owed her a duty based on their prior representation of her in another matter, but the South Carolina Court of Appeals declined to address the issue because it had not been ruled upon by the trial court and was thus not preserved for appellate review. The South Carolina Supreme Court later reversed, holding that the issue was indeed reserved for appellate review, and remanded to the Court of Appeals for a ruling on the merits. See Spence v. Wingate, 381 S.C. 487, 674 S.E.2d 169 (2009).

Moore v. Weinberg, 373 S.C. 209, 644 S.E.2d 740 (Ct. App. 2007).
Opinion No. 4209, decided February 20, 2007.

An attorney represented a client who owed money to a third party on a promissory note. The attorney drafted an assignment to the third party of any recovery his client received by judgment or settlement in a separate lawsuit. When the lawsuit settled, the attorney paid the settlement funds to his client but failed to pay the third party. The third party brought an action against the attorney for negligence, conversion, and civil conspiracy. The South Carolina Court of Appeals found that summary judgment was appropriate on the conspiracy claim, but inappropriate on the negligence and conversion claims. Novation was not a defense to any claims because it is a defense to contractual claims, whereas all of the third party’s claims were tort claims.

 

Barnes, Alford, Stork & Johnson, LLP makes this information available as a service to its clients and friends. This information is not a solicitation or an effort to provide legal advice, nor does it create an attorney-client relationship. The information provided should not be relied upon without consulting a qualified attorney to determine if it is applicable to a specific legal need.