Outline:
Introduction
Why do we care?
$56 Trillion wealth shift
Increased litigation
What is Malpractice?
Defined/ elements of cause of action
Privity requirement
Exception to privity requirement
Estate planning malpractice
Fact Pattern: requested change to estate plan not completed by attorney; client passes away
Who can sue?
Castleberry case and spendthrift trusts
Limitations of DCA opinions
Statute of limitations
When does cause of action accrue?
Can’t I draft around it/limit my liability? (no)
Ethics
Ethical Rules
How doe Ethical Rules impact practice?
Legal services contracts
Charging liens
Conclusion
John J. Pankauski is a partner with Pankauski Hauser PLLC in West Palm Beach, Florida. Mr. Pankauski has spent over 20 years of his career handling matters involving wills, trusts, estates, probates, and guardianships. His practice is limited to disputes, trials and appeals of such matters. He is AV Preeminent rated by Martindale Hubel.
The panel affirmed the ruling that a $350,000 arbitration debt was nondischargeable in bankruptcy. It held that the creditor's challenge was timely because the debtor did not adequately identify the debt in his bankruptcy schedules. The debtor listed the debt incorrectly and provided inaccurate details. It also held that the creditor's former lawyer's knowledge of the bankruptcy filing could not be imputed to the creditor, as the lawyer learned of it while representing a different client and no longer represented the creditor regarding that specific debt.
This document is a response in opposition to Chevron's motion to strike the notice of deposition of Kroll, Inc. in a case between Chevron Corporation and Steven Donziger et al. It argues that Kroll has relevant information regarding Chevron's activities that should be disclosed, including: (1) Kroll's involvement in Chevron's attempts to bribe witnesses; (2) Kroll attempting to hire a journalist as a spy for Chevron; and (3) Kroll conducting surveillance of the defendants and their lawyers. It asserts that these topics are relevant to the defendants' defenses and that attorney-client privilege does not apply to Kroll. The document requests that the court deny Chevron's motion to strike
The document discusses various topics related to witness preparation by lawyers. It notes that witness preparation is not directly regulated and there is little case law or scholarly literature on the topic. While lawyers have a duty to zealously represent clients, they cannot knowingly assist witnesses to testify falsely or commit perjury. The document discusses challenges around distinguishing proper witness preparation from improper coaching. It also discusses techniques used in witness preparation like "the lecture" and debates around simultaneous witness interviews. Overall, the document examines the ethical boundaries and gray areas of lawyers preparing witnesses for testimony or deposition.
Lawweb.in judgment of us district court on motion for a negative inference ba...Law Web
Judgment of US District court on motion for a Negative Inference Based upon Plaintiff’s Alleged Deletion of Emails - See more at: http://www.lawweb.in/2016/04/judgment-of-us-district-court-on-motion.html?#sthash.T5WQGg2Q.dpuf
Alicias, Jr. v. Baclig, A.C. No. 9919, July 19, 2017, 813 PHIL 893-900.pdfElleAlamo
The Supreme Court ruled that while the lawyer, Atty. Baclig, could not be faulted for consenting to assertions made by his clients in an amended complaint, he was guilty of forum shopping. There was an existing case regarding the same subject property filed by his clients against the complainant in the Municipal Trial Court. However, while that case was pending, Atty. Baclig consented to the filing of another complaint in the Regional Trial Court seeking similar relief. This amounted to forum shopping. As a former judge, Atty. Baclig should have been mindful to observe the proper tenets of the legal profession and not engage in actions that undermine the administration of justice, such as forum shopping. The Court found Atty
Admissibility of Alcohol and Gaming Commission of Ontario Reports Omar Ha-Redeye
Admissibility of Alcohol and Gaming Commission of Ontario Reports
Read the full paper here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1523958
Annual Meeting of the World Institute for Research and Publication - Law
June 4-6, 2010
John J. Pankauski is a partner with Pankauski Hauser PLLC in West Palm Beach, Florida. Mr. Pankauski has spent over 20 years of his career handling matters involving wills, trusts, estates, probates, and guardianships. His practice is limited to disputes, trials and appeals of such matters. He is AV Preeminent rated by Martindale Hubel.
The panel affirmed the ruling that a $350,000 arbitration debt was nondischargeable in bankruptcy. It held that the creditor's challenge was timely because the debtor did not adequately identify the debt in his bankruptcy schedules. The debtor listed the debt incorrectly and provided inaccurate details. It also held that the creditor's former lawyer's knowledge of the bankruptcy filing could not be imputed to the creditor, as the lawyer learned of it while representing a different client and no longer represented the creditor regarding that specific debt.
This document is a response in opposition to Chevron's motion to strike the notice of deposition of Kroll, Inc. in a case between Chevron Corporation and Steven Donziger et al. It argues that Kroll has relevant information regarding Chevron's activities that should be disclosed, including: (1) Kroll's involvement in Chevron's attempts to bribe witnesses; (2) Kroll attempting to hire a journalist as a spy for Chevron; and (3) Kroll conducting surveillance of the defendants and their lawyers. It asserts that these topics are relevant to the defendants' defenses and that attorney-client privilege does not apply to Kroll. The document requests that the court deny Chevron's motion to strike
The document discusses various topics related to witness preparation by lawyers. It notes that witness preparation is not directly regulated and there is little case law or scholarly literature on the topic. While lawyers have a duty to zealously represent clients, they cannot knowingly assist witnesses to testify falsely or commit perjury. The document discusses challenges around distinguishing proper witness preparation from improper coaching. It also discusses techniques used in witness preparation like "the lecture" and debates around simultaneous witness interviews. Overall, the document examines the ethical boundaries and gray areas of lawyers preparing witnesses for testimony or deposition.
Lawweb.in judgment of us district court on motion for a negative inference ba...Law Web
Judgment of US District court on motion for a Negative Inference Based upon Plaintiff’s Alleged Deletion of Emails - See more at: http://www.lawweb.in/2016/04/judgment-of-us-district-court-on-motion.html?#sthash.T5WQGg2Q.dpuf
Alicias, Jr. v. Baclig, A.C. No. 9919, July 19, 2017, 813 PHIL 893-900.pdfElleAlamo
The Supreme Court ruled that while the lawyer, Atty. Baclig, could not be faulted for consenting to assertions made by his clients in an amended complaint, he was guilty of forum shopping. There was an existing case regarding the same subject property filed by his clients against the complainant in the Municipal Trial Court. However, while that case was pending, Atty. Baclig consented to the filing of another complaint in the Regional Trial Court seeking similar relief. This amounted to forum shopping. As a former judge, Atty. Baclig should have been mindful to observe the proper tenets of the legal profession and not engage in actions that undermine the administration of justice, such as forum shopping. The Court found Atty
Admissibility of Alcohol and Gaming Commission of Ontario Reports Omar Ha-Redeye
Admissibility of Alcohol and Gaming Commission of Ontario Reports
Read the full paper here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1523958
Annual Meeting of the World Institute for Research and Publication - Law
June 4-6, 2010
This document contains Plaintiff Traian Bujduveanu's objections to a report and recommendations regarding Defendants' motion to dismiss. The Plaintiff objects on several grounds: (1) that the judge did not properly consider all documents submitted and failed to acknowledge admissions by Defendants; (2) that the Fourth Amendment protects third parties from searches of their property; (3) that requests for religious accommodation were denied; and (4) that conditions at the halfway house violated the Eighth Amendment's prohibition on cruel and unusual punishment. The Plaintiff argues these objections demonstrate the complaint should not be dismissed.
This document is a subpoena issued by the United States Bankruptcy Court for the District of Colorado in the case of Cordillera Golf Club, LLC. It commands John L. Emmerling to appear for a deposition at the law offices of Ballard Spahr LLP in Denver on July 18, 2012 at 9:00am. It also commands him to produce certain requested documents by electronic transmission or delivery to Young Conaway Stargatt & Taylor, LLP in Wilmington, Delaware by July 16, 2012 at 5:00pm. The subpoena is signed by Travis G. Buchanan as counsel for the debtor.
Defendants dismas charties, inc., ana gispert, derek thomas and adams leshota...Cocoselul Inaripat
This document is a response brief filed by the defendants (Dismas Charities, Inc., Ana Gispert, Derek Thomas, and Adams Leshota) in response to the plaintiff's (Traian Bujduveanu) motion to strike the defendants' response brief to the plaintiff's motion to compel discovery responses. The defendants argue that the plaintiff's motion to strike should be denied because the defendants properly responded to all discovery requests. The defendants also argue that the plaintiff provides no valid legal basis to strike the defendants' response brief and is simply attempting to argue the merits of the case rather than the discovery issues. The defendants request that the plaintiff's motion be denied and sanctions be granted against the plaintiff.
This document is a response brief filed by the defendants (Dismas Charities, Inc., Ana Gispert, Derek Thomas, and Adams Leshota) in response to the plaintiff's (Traian Bujduveanu) motion to strike the defendants' response brief to the plaintiff's motion to compel discovery responses. The defendants argue that the plaintiff's motion to strike should be denied because the defendants properly responded to all discovery requests. The defendants also argue that the plaintiff provides no valid legal basis to strike the defendants' response brief and is simply attempting to argue the merits of the case rather than the discovery issues. The defendants request that the plaintiff's motion be denied and sanctions be granted against the plaintiff.
The document summarizes two court cases involving the administration of estates:
1) Matute vs. Court of Appeals - The probate court removed a co-administrator without allowing him to present evidence, which was a grave abuse of discretion. The court should have followed proper procedure and ruled on the demurrer to evidence first.
2) Baluyut vs. Pano - The probate court improperly appointed a surviving spouse as administratrix without a full hearing on her competence. Being named executor in a will does not automatically grant letters, and those questioning competence must have a chance to be heard. The court ordered a new hearing.
The appellant, a defense lawyer for Dato' Seri Anwar Ibrahim, filed a motion to disqualify two prosecutors based on supporting documents. The High Court judge held the motion was baseless and proposed holding the appellant in contempt of court. In a summary hearing, the appellant was found guilty and sentenced to 3 months imprisonment. The Federal Court allowed the appeal, finding that: (1) the appellant was justified in filing the motion, so there was no abuse of court process; (2) the contempt charge was not proven beyond a reasonable doubt; and (3) the appellant should have been granted an adjournment to fully prepare his defense, as denying this deprived him of a fair hearing.
Defendants dismas charties, inc., ana gispert, derek thomas and adams leshota...Cocoselul Inaripat
This document is a response by the defendants to the plaintiff's motion to supplement his motion to compel discovery responses. The defendants argue that they have properly responded to all of the plaintiff's discovery requests. They assert that the purpose of the motion to compel is to compel responses when the other side has not responded, which is not the case here. The defendants believe the plaintiff is trying to force them to change their discovery answers to ones more favorable to the plaintiff through this motion. They request that the court deny the plaintiff's motion.
This document is a response by the defendants to the plaintiff's motion to supplement his motion to compel discovery responses. The defendants argue that their discovery responses have been timely and proper. They assert that the plaintiff's motion is an attempt to argue the merits of the case rather than the sufficiency of the discovery responses. The defendants request that the plaintiff's motion be denied and sanctions be awarded against the plaintiff.
An injunction is an equitable remedy in the form of a court order that requires a party to do or refrain from doing a specific act. There are several types of injunctions including mandatory, prohibitory, perpetual, interlocutory, interim, ex parte, quia timet, and Mareva injunctions. A Mareva injunction specifically seeks to freeze a defendant's assets before judgment to ensure assets are not disposed of so that the plaintiff can recover damages if successful. Key requirements for a Mareva injunction are that the plaintiff must make full disclosure of all material facts and have a good arguable case against the defendant.
This case concerns a lawsuit filed by Enrique Herrera against Gilligan's LLC and Robert Phillipps after Herrera was injured while working for Gilligan's. Gilligan's and Phillipps sought summary judgment claiming immunity under Wyoming's Worker's Compensation Act. Herrera argued he was not a covered employee under the Act because he was not legally authorized to work in the U.S. and Gilligan's did not have proper documentation of his work status. The district court initially denied summary judgment finding factual issues but later granted it without explanation. On appeal, the court will review the summary judgment decision de novo to determine if factual issues exist regarding Gilligan's compliance with documentation requirements and immunity under the Act.
This document is a report and recommendation from a magistrate judge regarding a motion to dismiss for lack of personal jurisdiction filed by the defendant, Info Directions, Inc. The plaintiff, Transverse LLC, alleges that Info Directions interfered with its contract and misappropriated its trade secrets related to billing software. The magistrate judge provides background on the parties and claims, summarizes the legal standards for personal jurisdiction, and will make a recommendation to the district court judge on the motion to dismiss.
Alistair Jones Motion for Summary JudgmentAlistair Jones
Fred Northrop filed a motion for summary judgment against Acme Insurance in a lawsuit alleging sexual discrimination by Northrop's supervisor Helen Redmond. Northrop claims that Redmond offered him a promotion in exchange for sexual favors, and then denied him the promotion and spread false rumors about him after he refused. Northrop argues that as Redmond's actions were in her official capacity as his supervisor for Acme, Acme is liable for sexual discrimination. Northrop is seeking damages, back pay, reinstatement to the denied position, and attorney's fees if found to have experienced discrimination as a motivating factor in being denied the promotion.
Qualified immunity protects government employees from civil lawsuits for actions performed as part of their jobs. The Supreme Court established qualified immunity to prevent employees from being overly cautious in their duties due to fear of lawsuits. Over time, the Court has refined how qualified immunity is applied. It now protects employees unless their actions clearly violated an established constitutional right. Private individuals may also claim qualified immunity if they are temporarily assisting the government in an official capacity. However, private companies operating independently of direct government control cannot claim qualified immunity for their employees.
Motion for Summary Judgment by Kanawha Stone containing the deposition and re...Putnam Reporter
Motion For Summary Judgment with exhibit containing the depositions and resumes of the plaintiffs in the case of :
DOLORES HALBURN and MARK HALBURN,
Plaintiffs,
v.
CITY OF HURRICANE, WEST VIRGINIA,
a municipal corporation, BEN NEWHOUSE,
individually and in his capacity as City Manager
for the City of Hurricane, CLEVELAND
CONSTRUCTION, INC. dba Cleveland
Construction, Inc. Of Nevada, and KANAWHA
STONE COMPANY, INC.,
Defendants.
Putnam County WV Civil Action No. 07-C-298
MDFL - Order Denying Motion to Dismiss Trade Secret & Fraud ClaimsPollard PLLC
In this order, the United States District Court for the Middle District of Florida, Tampa Division, denies the defendants' motions to dismiss claims for breach of contract, theft of trade secrets in violation of the Defend Trade Secrets Act, 18 USC 1836 et. seq., fraud and aiding and abetting fraud.
In relevant part, the Court rejects the defendants' efforts to impose a summary judgment like burden at the pleading stage. Notable holdings include: (1) The question of whether information constitutes a trade secret is a question of fact normally resolved by a jury after full presentation of evidence. (2) A claim for misappropriation may exist not only where the defendant itself is alleged to have stolen trade secrets, but where the defendant is alleged to have obtained the trade secrets while knowing that they were acquired by improper means. (3) The allegation that a defendant induced a plaintiff to enter an NDA with no intention of honoring it states a claim for fraud in the inducement that is not barred by the independent tort doctrine.
The plaintiff is represented by Fort Lauderdale, Florida based Pollard PLLC. The firm has extensive experience litigating complex non-compete, trade secret, trademark and unfair competition claims. Their office can be reached at 954-332-2380.
Motion to Dismiss Claims for Misappropriation of Trade Secrets and Tortious Interference under Florida law. Tampa, Florida. Hillsborough County Circuit Court - Complex Business Litigation Division.
Pollard PLLC
P. 954-332-2380
John J. Pankauski is a partner with Pankauski Hauser PLLC in West Palm Beach, Florida. Mr. Pankauski has spent over 20 years of his career handling matters involving wills, trusts, estates, probates, and guardianships. His practice is limited to disputes, trials and appeals of such matters. He is AV Preeminent rated by Martindale Hubel.
Motion To Dismiss Raanan Katz Copyright Lawsuitrkcenters
Miami Heat minority owner Raanan Katz does not appreciate the photo of himself circulating on the internet, so he is suing Google and a Miami blogger for refusing to take it down.
And Raanan Katz, RK Centers Owner, apparently has enough money to sue anybody else who posts the photo.
1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CA.docxjoyjonna282
1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
------------------------------------------------------X
DOUGLAS SMITH,
Plaintiff
Against DECISION
ON MOTION TO
DISMISS
JANE JOHNSON,
PISSEDPRODUCER.COM, INC,
Defendants
------------------------------------------------------X
Haas, J.,
Defendant Jane Johnson (“Johnson”) lives in Portland, Oregon, and operates
defendant corporation, pissedproducer.com (the “website”). The website is devoted to
allowing service providers to complain about actions of consumers. According to the
website’s terms, business owners or service providers are allowed to post feedback about
consumers “that other producers should be wary of.” The website also allows aggrieved
producers to publish the names, addresses and other personal information about
consumers, along with audio and video files that relate to the transaction.
On June 12, YR-01, Brenda James (“James”) posted a story regarding plaintiff,
Douglas Smith (“Smith”) in which she accused him of, inter alia, lying about his
conversations with her, behaving antagonistically towards her and unjustifiably
complaining about her business. She also posted information about Smith’s name,
address and license plate number and a video that showed a confrontation between her
and Smith.
Johnson knowingly allowed this information to remain on her site in spite of
Smith’s protest.
2
Smith brought the present action against Johnson and the corporation that holds
the website alleging defamation, invasion of privacy for intrusion upon seclusion,
invasion of privacy for misappropriation of name and likeness and intentional infliction
of emotional distress against all three defendants.
Subject matter jurisdiction is established under 28 U.S.C. § 1332 (diversity
jurisdiction) because plaintiff is a resident of California and defendants are residents of
Oregon and the amount in controversy is more than $75,000. This is undisputed.
Johnson and the website have moved to dismiss the complaint based on FRCP
Rule 12(b)(2), alleging that this court does not have personal jurisdiction over her and
under FRCP Rule 12(b)(6) for failure to state a claim upon which relief can be granted
with respect to each of the four counts of the complaint.
For the reasons set forth below, I deny the defendant’s motion to dismiss with
respect to each count.
Personal Jurisdiction
Defendant argues that this court lacks personal jurisdiction over Johnson and the
website because they operate exclusively in the state of Oregon and have insufficient
contacts with California to subject them to personal jurisdiction in the state of California.
Under the due process clause of the 14th amendment to the United States
Constitution, a state may exercise long arm jurisdiction over an out-of-state defendant
only if the defendant has “certain minimum contacts with it s ...
Michael Smyth sued his former employer Pillsbury for wrongful termination. Smyth claims he was fired for sending private email messages over Pillsbury's email system in reliance on their assurances that email would remain confidential. Pillsbury argues that, as an at-will employee, Smyth could be fired without cause. The court must determine if Smyth's termination violates public policy regarding an employee's right to privacy. While Pennsylvania law generally allows at-will termination, exceptions exist for terminations that threaten clear public policy mandates. Smyth claims his termination violated public policy protecting privacy in email communications.
Small claims court is a real court governed by Florida rules that handles monetary claims of $5,000 or less. It provides an expedited process for plaintiffs to file a statement of claim against defendants. The court then schedules mandatory mediation within 50 days, and if needed, a trial within 60 days. Though informal, small claims court follows evidentiary rules and any judgment carries the same legal weight as other civil courts. Parties should understand the procedures and protections to effectively use small claims court for resolving monetary disputes.
This document contains Plaintiff Traian Bujduveanu's objections to a report and recommendations regarding Defendants' motion to dismiss. The Plaintiff objects on several grounds: (1) that the judge did not properly consider all documents submitted and failed to acknowledge admissions by Defendants; (2) that the Fourth Amendment protects third parties from searches of their property; (3) that requests for religious accommodation were denied; and (4) that conditions at the halfway house violated the Eighth Amendment's prohibition on cruel and unusual punishment. The Plaintiff argues these objections demonstrate the complaint should not be dismissed.
This document is a subpoena issued by the United States Bankruptcy Court for the District of Colorado in the case of Cordillera Golf Club, LLC. It commands John L. Emmerling to appear for a deposition at the law offices of Ballard Spahr LLP in Denver on July 18, 2012 at 9:00am. It also commands him to produce certain requested documents by electronic transmission or delivery to Young Conaway Stargatt & Taylor, LLP in Wilmington, Delaware by July 16, 2012 at 5:00pm. The subpoena is signed by Travis G. Buchanan as counsel for the debtor.
Defendants dismas charties, inc., ana gispert, derek thomas and adams leshota...Cocoselul Inaripat
This document is a response brief filed by the defendants (Dismas Charities, Inc., Ana Gispert, Derek Thomas, and Adams Leshota) in response to the plaintiff's (Traian Bujduveanu) motion to strike the defendants' response brief to the plaintiff's motion to compel discovery responses. The defendants argue that the plaintiff's motion to strike should be denied because the defendants properly responded to all discovery requests. The defendants also argue that the plaintiff provides no valid legal basis to strike the defendants' response brief and is simply attempting to argue the merits of the case rather than the discovery issues. The defendants request that the plaintiff's motion be denied and sanctions be granted against the plaintiff.
This document is a response brief filed by the defendants (Dismas Charities, Inc., Ana Gispert, Derek Thomas, and Adams Leshota) in response to the plaintiff's (Traian Bujduveanu) motion to strike the defendants' response brief to the plaintiff's motion to compel discovery responses. The defendants argue that the plaintiff's motion to strike should be denied because the defendants properly responded to all discovery requests. The defendants also argue that the plaintiff provides no valid legal basis to strike the defendants' response brief and is simply attempting to argue the merits of the case rather than the discovery issues. The defendants request that the plaintiff's motion be denied and sanctions be granted against the plaintiff.
The document summarizes two court cases involving the administration of estates:
1) Matute vs. Court of Appeals - The probate court removed a co-administrator without allowing him to present evidence, which was a grave abuse of discretion. The court should have followed proper procedure and ruled on the demurrer to evidence first.
2) Baluyut vs. Pano - The probate court improperly appointed a surviving spouse as administratrix without a full hearing on her competence. Being named executor in a will does not automatically grant letters, and those questioning competence must have a chance to be heard. The court ordered a new hearing.
The appellant, a defense lawyer for Dato' Seri Anwar Ibrahim, filed a motion to disqualify two prosecutors based on supporting documents. The High Court judge held the motion was baseless and proposed holding the appellant in contempt of court. In a summary hearing, the appellant was found guilty and sentenced to 3 months imprisonment. The Federal Court allowed the appeal, finding that: (1) the appellant was justified in filing the motion, so there was no abuse of court process; (2) the contempt charge was not proven beyond a reasonable doubt; and (3) the appellant should have been granted an adjournment to fully prepare his defense, as denying this deprived him of a fair hearing.
Defendants dismas charties, inc., ana gispert, derek thomas and adams leshota...Cocoselul Inaripat
This document is a response by the defendants to the plaintiff's motion to supplement his motion to compel discovery responses. The defendants argue that they have properly responded to all of the plaintiff's discovery requests. They assert that the purpose of the motion to compel is to compel responses when the other side has not responded, which is not the case here. The defendants believe the plaintiff is trying to force them to change their discovery answers to ones more favorable to the plaintiff through this motion. They request that the court deny the plaintiff's motion.
This document is a response by the defendants to the plaintiff's motion to supplement his motion to compel discovery responses. The defendants argue that their discovery responses have been timely and proper. They assert that the plaintiff's motion is an attempt to argue the merits of the case rather than the sufficiency of the discovery responses. The defendants request that the plaintiff's motion be denied and sanctions be awarded against the plaintiff.
An injunction is an equitable remedy in the form of a court order that requires a party to do or refrain from doing a specific act. There are several types of injunctions including mandatory, prohibitory, perpetual, interlocutory, interim, ex parte, quia timet, and Mareva injunctions. A Mareva injunction specifically seeks to freeze a defendant's assets before judgment to ensure assets are not disposed of so that the plaintiff can recover damages if successful. Key requirements for a Mareva injunction are that the plaintiff must make full disclosure of all material facts and have a good arguable case against the defendant.
This case concerns a lawsuit filed by Enrique Herrera against Gilligan's LLC and Robert Phillipps after Herrera was injured while working for Gilligan's. Gilligan's and Phillipps sought summary judgment claiming immunity under Wyoming's Worker's Compensation Act. Herrera argued he was not a covered employee under the Act because he was not legally authorized to work in the U.S. and Gilligan's did not have proper documentation of his work status. The district court initially denied summary judgment finding factual issues but later granted it without explanation. On appeal, the court will review the summary judgment decision de novo to determine if factual issues exist regarding Gilligan's compliance with documentation requirements and immunity under the Act.
This document is a report and recommendation from a magistrate judge regarding a motion to dismiss for lack of personal jurisdiction filed by the defendant, Info Directions, Inc. The plaintiff, Transverse LLC, alleges that Info Directions interfered with its contract and misappropriated its trade secrets related to billing software. The magistrate judge provides background on the parties and claims, summarizes the legal standards for personal jurisdiction, and will make a recommendation to the district court judge on the motion to dismiss.
Alistair Jones Motion for Summary JudgmentAlistair Jones
Fred Northrop filed a motion for summary judgment against Acme Insurance in a lawsuit alleging sexual discrimination by Northrop's supervisor Helen Redmond. Northrop claims that Redmond offered him a promotion in exchange for sexual favors, and then denied him the promotion and spread false rumors about him after he refused. Northrop argues that as Redmond's actions were in her official capacity as his supervisor for Acme, Acme is liable for sexual discrimination. Northrop is seeking damages, back pay, reinstatement to the denied position, and attorney's fees if found to have experienced discrimination as a motivating factor in being denied the promotion.
Qualified immunity protects government employees from civil lawsuits for actions performed as part of their jobs. The Supreme Court established qualified immunity to prevent employees from being overly cautious in their duties due to fear of lawsuits. Over time, the Court has refined how qualified immunity is applied. It now protects employees unless their actions clearly violated an established constitutional right. Private individuals may also claim qualified immunity if they are temporarily assisting the government in an official capacity. However, private companies operating independently of direct government control cannot claim qualified immunity for their employees.
Motion for Summary Judgment by Kanawha Stone containing the deposition and re...Putnam Reporter
Motion For Summary Judgment with exhibit containing the depositions and resumes of the plaintiffs in the case of :
DOLORES HALBURN and MARK HALBURN,
Plaintiffs,
v.
CITY OF HURRICANE, WEST VIRGINIA,
a municipal corporation, BEN NEWHOUSE,
individually and in his capacity as City Manager
for the City of Hurricane, CLEVELAND
CONSTRUCTION, INC. dba Cleveland
Construction, Inc. Of Nevada, and KANAWHA
STONE COMPANY, INC.,
Defendants.
Putnam County WV Civil Action No. 07-C-298
MDFL - Order Denying Motion to Dismiss Trade Secret & Fraud ClaimsPollard PLLC
In this order, the United States District Court for the Middle District of Florida, Tampa Division, denies the defendants' motions to dismiss claims for breach of contract, theft of trade secrets in violation of the Defend Trade Secrets Act, 18 USC 1836 et. seq., fraud and aiding and abetting fraud.
In relevant part, the Court rejects the defendants' efforts to impose a summary judgment like burden at the pleading stage. Notable holdings include: (1) The question of whether information constitutes a trade secret is a question of fact normally resolved by a jury after full presentation of evidence. (2) A claim for misappropriation may exist not only where the defendant itself is alleged to have stolen trade secrets, but where the defendant is alleged to have obtained the trade secrets while knowing that they were acquired by improper means. (3) The allegation that a defendant induced a plaintiff to enter an NDA with no intention of honoring it states a claim for fraud in the inducement that is not barred by the independent tort doctrine.
The plaintiff is represented by Fort Lauderdale, Florida based Pollard PLLC. The firm has extensive experience litigating complex non-compete, trade secret, trademark and unfair competition claims. Their office can be reached at 954-332-2380.
Motion to Dismiss Claims for Misappropriation of Trade Secrets and Tortious Interference under Florida law. Tampa, Florida. Hillsborough County Circuit Court - Complex Business Litigation Division.
Pollard PLLC
P. 954-332-2380
John J. Pankauski is a partner with Pankauski Hauser PLLC in West Palm Beach, Florida. Mr. Pankauski has spent over 20 years of his career handling matters involving wills, trusts, estates, probates, and guardianships. His practice is limited to disputes, trials and appeals of such matters. He is AV Preeminent rated by Martindale Hubel.
Motion To Dismiss Raanan Katz Copyright Lawsuitrkcenters
Miami Heat minority owner Raanan Katz does not appreciate the photo of himself circulating on the internet, so he is suing Google and a Miami blogger for refusing to take it down.
And Raanan Katz, RK Centers Owner, apparently has enough money to sue anybody else who posts the photo.
1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CA.docxjoyjonna282
1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
------------------------------------------------------X
DOUGLAS SMITH,
Plaintiff
Against DECISION
ON MOTION TO
DISMISS
JANE JOHNSON,
PISSEDPRODUCER.COM, INC,
Defendants
------------------------------------------------------X
Haas, J.,
Defendant Jane Johnson (“Johnson”) lives in Portland, Oregon, and operates
defendant corporation, pissedproducer.com (the “website”). The website is devoted to
allowing service providers to complain about actions of consumers. According to the
website’s terms, business owners or service providers are allowed to post feedback about
consumers “that other producers should be wary of.” The website also allows aggrieved
producers to publish the names, addresses and other personal information about
consumers, along with audio and video files that relate to the transaction.
On June 12, YR-01, Brenda James (“James”) posted a story regarding plaintiff,
Douglas Smith (“Smith”) in which she accused him of, inter alia, lying about his
conversations with her, behaving antagonistically towards her and unjustifiably
complaining about her business. She also posted information about Smith’s name,
address and license plate number and a video that showed a confrontation between her
and Smith.
Johnson knowingly allowed this information to remain on her site in spite of
Smith’s protest.
2
Smith brought the present action against Johnson and the corporation that holds
the website alleging defamation, invasion of privacy for intrusion upon seclusion,
invasion of privacy for misappropriation of name and likeness and intentional infliction
of emotional distress against all three defendants.
Subject matter jurisdiction is established under 28 U.S.C. § 1332 (diversity
jurisdiction) because plaintiff is a resident of California and defendants are residents of
Oregon and the amount in controversy is more than $75,000. This is undisputed.
Johnson and the website have moved to dismiss the complaint based on FRCP
Rule 12(b)(2), alleging that this court does not have personal jurisdiction over her and
under FRCP Rule 12(b)(6) for failure to state a claim upon which relief can be granted
with respect to each of the four counts of the complaint.
For the reasons set forth below, I deny the defendant’s motion to dismiss with
respect to each count.
Personal Jurisdiction
Defendant argues that this court lacks personal jurisdiction over Johnson and the
website because they operate exclusively in the state of Oregon and have insufficient
contacts with California to subject them to personal jurisdiction in the state of California.
Under the due process clause of the 14th amendment to the United States
Constitution, a state may exercise long arm jurisdiction over an out-of-state defendant
only if the defendant has “certain minimum contacts with it s ...
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1. ADVISING THE ESTATE PLANNING
ATTORNEYFLORIDA BAR-APPROVED 2.5 CLE ETHICS CREDITS
WITH JOHN PANKAUSKI, ESQ.
(561) 514 – 0900
www.phflorida.com
2. DISCUSSION OUTLINE
I. Introduction
II. What is Legal Malpractice?
III. Florida Legal Malpractice Cases, Issues &
Potential Traps for the Unwary: 20 Things You
Need to Know
IV. Non-Florida Legal Malpractice Cases
V. Ethics
VI. Conclusion
3.
4. RULE 4-1.1 COMPETENCE
A LAWYER SHALL PROVIDE COMPETENT
REPRESENTATION TO A CLIENT. COMPETENT
REPRESENTATION REQUIRES THE LEGAL
KNOWLEDGE, SKILL, THOROUGHNESS, AND
PREPARATION REASONABLY NECESSARY FOR
THE REPRESENTATION.
5. AIR TURBINE TECHNOLOGY, INC. V. QUARLES
& BRADY, LLC 165 SO. 3D 815 (FLA. 4TH DCA,
2015)
AN ATTORNEY MAY BE HELD LIABLE FOR
DAMAGES INCURRED BY A CLIENT BASED ON
THE ATTORNEY’S FAILURE TO ACT WITH A
REASONABLE DEGREE OF CARE, SKILL AND
DISPATCH @ 822, CITING CROSBY V. JAMES,
705 SO.2D 1356,1358 (FLA, 1998).
7. The number of lawsuits against estate planning attorneys has increased
over the last several years. Statistics indicate that the estate planning and
probate area is the third largest category of malpractice claims in the legal
profession. The most recent American Bar Association Standing Committee
on Lawyers' Professional Liability study, Profile of Legal Malpractice Claims
2000-2003 (2005), found that, although the number of claims filed in most
areas of the law remained stable, the frequency of probate and trust claims
had risen since the ABA's previous study.
-- The Modern Estate Planning Lawyer Avoiding the Maelstrom of Malpractice Claims, 20 Probate &
Property, Nov./Dec. 2008 (Stephanie B. Casteel, Letitia A. McDonald, Jennifer D. Odom, Nicole J. Wade)
15. # 1 - LEGAL MALPRACTICE OR PROFESSIONAL
NEGLIGENCE DEFINED : WHAT ARE THE ELEMENTS OF
THE CAUSE OF ACTION ?
16. 1. attorney’s employment
(a) attorney was employed by or in
privity with the plaintiff (See McLeod v.
Bankier, 63 So. 2d 858, 860 (Fla. 4th DCA,
2011)
2. neglect of reasonable duty
3. proximate cause of
4. client’s loss (damages)
– Larson & Larson, P.A. TSE Indus. Inc., 22 So 3d 36,
39 (Fla. 2009)
17. CAUSATION
“If the client cannot show that it would not
have suffered harm “but for” the attorney’s
negligence, the client will not prevail.”
-- KJB Village Property, LLC v. Craig M.
Dorne, P.A., 77 So.3d 727 (Fla. 3rd DCA,
2011), rehear. den. Feb. 2, 2012.
18. CAUSATION
The client must win a “case-within-a-case”:
must demonstrate that client would have won
on the underlying matter but for the attorney’s
negligence.
-- see Hanson v. Fowler, White, Burnett,
P.A., 117 So. 3d 1127, 1134 (Fla. 3rd DCA, 2012).
19. KJB VILLAGE PROPERTY, LLC V. CRAIG M.
DORNE, P.A., 77 SO.3D 727 (FLA. 3RD DCA,
2011), REHEAR. DEN. FEB. 2, 2012
BLUTH V. BLAKE, 128 SO.3D 242 (FLA. 4TH
DCA, 2013) REHEAR. DEN. JAN. 9, 2014
“Gotta” have damages !!
20. “The test for determining when a cause of action for attorney
malpractice has accrued is whether the existence of
redressable harm has been established. Peat, Marwick,
Mitchell & Co. v. Lane, 565 So.2d 1323 (Fla.1990). See also Coble
v. Aronson, 647 So.2d 968, 970 (Fla. 4th DCA 1994) “The test for
determining when a cause of action for attorney malpractice has
accrued is whether the existence of redressable harm has been
established.” See Bluth at 970.
This concept typically cited for litigation-related matters.
21. DEFENSES
1. NO A/C PRIVILEGE
2. NO PRIVITY
3. SOL -- 95.11 (4)(A) (“…THE PERIOD OF
LIMITATIONS SHALL RUN FROM THE TIME THE CAUSE OF
ACTION IS DISCOVERED OR SHOULD HAVE BEEN
DISCOVERED WITH THE EXERCISE OF DUE DILIGENCE..”)
4. SETTLEMENT ( ALSO CALLED
ABANDONMENT )
22. DEFENSES
5. YOU ARE NOT A PLAINTIFF -- (NO ASSIGNMENT
OF LEGAL MALPRACTICE ACTIONS. COWAN,
LIEBOWITZ & LATMAN, P.C. V. KAPLAN, 902 SO. 2D
755 (FLA. 2005))
6. PROXIMATE CAUSE –WHAT IF YOU ARE FIRED? OR
A/C RELATIONSHIP ENDS? DID YOU PROXIMATELY
CAUSE DAMAGE?
25. “Florida has long held that an attorney may be held liable for damages
incurred by a client based on the attorney's failure to act with a
reasonable degree of care, skill, and dispatch. Weekley v. Knight, 116
721, 156 So. 625 (1934); Riccio v. Stein, 559 So.2d 1207 (Fla. 3d DCA
1990). This does not mean, however, that an attorney acts as an
insurer of the outcome of a case. Good faith tactical decisions or
decisions made on a fairly debatable point of law are generally not
actionable under the rule of judgmental immunity. Meir v. Kirk,
Pinkerton, McClelland, Savary & Carr, P.A., 561 So.2d 399 (Fla. 2d DCA
1990) “
Crosby v. Jones, 705 So.2d 1356, 1358 (Fla. 1998)
26. “ BEFORE AN ATTORNEY CLAIMING THE DEFENSE OF
‘JUDGMENTAL IMMUNITY’ MAY PREVAIL, THE ATTORNEY
MUST SHOW THAT (1) THE LEGAL AUTHORITY SUPPORTING
THE ASSERTED CAUSE OF ACTION WAS “FAIRLY DEBATABLE”
OR “UNSETTLED,” AND (2) THAT SHE OR HE ACTED IN GOOD
FAITH AND MADE A DILIGENT INQUIRY INTO THE
UNSETTLED AREA OF LAW. CROSBY V. JONES, 705 SO.2D
1356, 1358 (FLA.1998).”
Haisfield v. Fleming, Haile & Shaw, P.A., 819 So. 2d 182 (Fla. 4th DCA, 2002) rehear.
den. June 20, 2002
27.
28. FOR A DETAILED DISCUSSION OF HOW
FLORIDA’S APPELLATE COURTS INTERPRET
THE DOCTRINE OF JUDGMENTAL IMMUNITY,
SEE INLET CONDO. ASSOC., INC., V.
CHILDRESS DUFFY, LTD, INC., 615 FED. APPX.
533 (JUNE 19, 2015)
29. SEE ALSO:
AIR TURBINE TECH., INC. V. QUARLES &
BRADY, LLC, 165 SO. 3D 816 (FLA. 4TH DCA,
2015)
31. “…….However, the limitation of
actions herein for professional
malpractice shall be limited to
persons in privity with the
professional.”
-- Fla. Stat. ∫ 95.11 (4) (a)
33. Negligent Will Drafting?
Babcock v. Malone, 760 So. 2d 1056 (Fla.
4th DCA, 2000) (Would-be “inheritors” of
now deceased uncle file suite against
uncle’s lawyer for not preparing will fast
enough? They would have inherited, but
for the new, contemplated will was not
drafted and executed.)
34. Negligent Will Drafting?
Babcock v. Malone:
Uncle retained counsel to prepare a new
will, naming 9 nieces/nephews as bene’s –
who were NOT bene’s under prior will.
Lawyer knew client’s health was failing
Time was of the essence
Draft will prepared but uncle died
36. Espinosa v. Sparber, Shevin, Shapo, Rosen and Heilbronner, 612 So. 2d 1378 (Fla. 1993)
“An attorney's liability for negligence in the performance of his or her
professional duties is limited to clients with whom the attorney shares privity
contract. Angel, Cohen & Rogovin v. Oberon Investments, N.V., 512 So.2d 192
(Fla.1987). In a legal context, the term “privity” is a word of art derived from
common law of contracts and used to describe the relationship of persons
are parties to a contract. Baskerville-Donovan Engineers, Inc. v. Pensacola
Executive House Condominium Ass'n, Inc., 581 So.2d 1301 (Fla.1991). To bring
a legal malpractice action, the plaintiff must either be in privity with the
attorney, wherein one party has a direct obligation to another, or,
the plaintiff must be an intended third-party beneficiary. In the instant
at 1379,1380.
37. “ In the area of will drafting, a limited exception to the strict privity
requirement has been allowed where it can be demonstrated that the
apparent intent of the client in engaging the services of the lawyer was to
benefit a third party. Rosenstone v. Satchell, 560 So.2d 1229 (Fla. 4th DCA
1990); Lorraine v. Grover, Ciment, Weinstein & Stauber, P.A., 467 So.2d 315
(Fla. 3d DCA 1985).
-- Espinosa at 1380.
38. But…..Do Florida Courts limit their gaze to
the will or estate planning document and
prohibit extrinsic evidence to
demonstrate what the decedent wanted?
39. “If extrinsic evidence is admitted to explain testamentary intent, as
recommended by the petitioners, the risk of misinterpreting the testator's intent
increases dramatically. Furthermore, admitting extrinsic evidence heightens the
tendency to manufacture false evidence that cannot be rebutted due to the
unavailability of the testator. For these reasons, we adhere to the rule that
standing in legal malpractice actions is limited to those who can show that the
testator's intent as expressed in the will is frustrated by the negligence of
the testator's attorney. Although Rene did not express in his will and codicils any
intention to exclude Patricia, his will and codicils do not, unfortunately, express
any affirmative intent to provide for her. Because Patricia cannot be described as
one in privity with the attorney or as an intended third-party beneficiary, a lawsuit
alleging professional malpractice cannot be brought on her behalf.”
-- Espinosa at 1380.
40. No extrinsic evidence
Just look to the will
Privity issue for will drafting is clearly
different than contract drafting
41. “Ordinarily, intent is a question
of fact that should not be
decided on a summary
judgment.”
Hodge v. Cichon, 78 So. 3d 719 (Fla. 5th DCA, 2012)
(failure by estate attorneys to create FLP during life
of decedent)
43. The estate of the Decedent has a
malpractice claim as the estate is
always in privity with the
attorney.
-- Espinosa at 1380.
44. What about tortious interference
with an expectancy lawsuit by the
nieces/nephews ?
Can you get over the duty-owed
hurdle?
45. See Gallo v. Brady, 925 so. 2d 363, 364 (Fla. 4th
DCA, 2006) rehear. den. April 25, 2006 declining
to follow Espinosa “…we reject appellees’ claim
that Florida law prohibits resort to extrinsic
evidence under the circumstances of this case.”
(allegations of “bad” estate planning, failure to
create valid CRT under regs, charitable
deduction denied )
46. Gallo v. Brady, 925 so. 2d 363, 364 (Fla.
4th DCA, 2006) says that Espinosa only
stands for prop that extrinsic evidence
not available to would-be beneficiary to
demonstrate that he/she was intended
to benefit under will.
48. Hodge v. Cichon, 78 So. 3d 719 (Fla. 5th DCA, 2012), citing
Angel, Cohen & Rogovin, v. Oberon Inv., N.V., 512 So.2d 192,
194 (Fla. 1987); Espinosa, 612 So. 2d 1378,1380 (Fla. 1993).
“A limited exception to the privity requirement in the area of will drafting allows an intended
beneficiary to file a legal malpractice claim for losses resulting form a lawyer’s actions or
inactions, where it was the apparent intent of the client to benefit that third party. “
Comment As late as 2012, Florida appellate courts are only granting standing to those
intended bene’s who are “in” the will, the prior, or existing, will. Never mind what the
Decedent asked you to do, and which you promised to do, and which you were even paid to
do. All that matters is what the prior will says – the one which the decedent wants changed.
49. “ A party is an intended beneficiary only if
the parties to the contract clearly express, or
the contract itself expresses, an intent to
primarily and directly benefit the third party
or a class of persons to which that party
claims to belong.
Dingle v. Dellinger, 134 So. 3d 484, 488 (Fla.
5th DCA, 2014)
50. In light of Dingle, can you “draft around” it?
“The services which you have retained Law Firm for
are personal to you. There are no third party
beneficiaries of this legal services contract.”
( probably not )
51.
52. “…. it is NOT necessary that the third-party
beneficiary is named in the contract. “
Dingle v. Dellinger, 134 So. 3d 484, 488 (Fla.
5th DCA, 2014)
53. Dingle v. Dellinger was not a will drafting
case.
It was a deed case.
It was a “you didn’t draft the deed and I
didn’t get the real estate case.”
, 134 So. 3d 484, 488 (Fla. 5th DCA, 2014)
54. Are Florida DCA’s more relaxed on the
privity exception in FLP or gift cases rather
than “ My mom wanted you to put me in
the will and you didn’t do it and now my
mom’s dead and I’m not in the will.” cases ?
56. When the intent is thwarted
(because no intent is “visible” in the
prior will), the short-changed bene
must open an estate, get appointed
PR, and file the malpractice action.
In 2 years. ∫ 95.11 (4)(a).
60. “ GENERALLY, “[A] CAUSE OF ACTION ACCRUES
WHEN THE LAST ELEMENT CONSTITUTING THE
CAUSE OF ACTION OCCURS.” § 95.031(1), FLA.
STAT. (2008).”
-- ARROWOOD INDEMNITY COMPANY,
V. CONROY, SIMBERG, GANON, KREVANS, ABEL,
LURVEY, MORROW & SCHEFER, P.A, 134 SO.3D 1079
(FLA. 4TH DCA, 2014) REHEARING DENIED FEB. 24, 2014
61. “For statute of limitations purposes, a cause of action for legal malpractice does
not accrue until the underlying adverse judgment becomes final, including
exhaustion of appellate rights. See Silvestrone v. Edell, 721 So.2d 1173, 1175 n. 2
(Fla.1998). That is the first point at which there is a redressable harm. Id. at 1175.
Until then, a malpractice claim is “hypothetical” and damages are “speculative.”
Id.; see also Hold v. Manzini, 736 So.2d 138, 142 (Fla. 3d DCA 1999) (“mere
knowledge of possible malpractice is not dispositive of when a malpractice action
accrues”).
-- LAW OFFICE OF DAVID J. STERN, P.A., v. SECURITY NATIONAL SERVICING
CORPORATION, 969 So.2d 962, 966 (Fla, 2007), rehear. den Dec. 3, 2007.
63. # 7 - CAN’T I DRAFT
AROUND IT/
LIMIT MY LIABILITY??
NO!
64. We are not accountants, or consultants,
or civil engineers, or other service
providers. We can’t, by contract, limit
our liability. The public places too
much trust and reliance in us, and upon
us.
67. ∫ 736.0503 EXCEPTIONS TO SPENDTHRIFT
PROVISION
…………………………..(2) TO THE EXTENT PROVIDED IN SUBSECTION (3),
SPENDTHRIFT PROVISION IS UNENFORCEABLE AGAINST: (A) A
BENEFICIARY’S CHILD, SPOUSE, OR FORMER SPOUSE WHO HAS A
JUDGMENT OR COURT ORDER AGAINST THE BENEFICIARY FOR
SUPPORT OR MAINTENANCE.
68. BERLINGER V. CASSELBERRY
133 SO.3D 96 (FLA. 2ND DCA, 2013) REHEAR. DEN. MARCH 12, 2014
NEITHER STATUTE MAKING A SPENDTHRIFT PROVISION
OF A TRUST UNENFORCEABLE AGAINST CERTAIN
CREDITORS, NOR STATUTE LIMITING SUCH CREDITORS'
CLAIMS AGAINST A DISCRETIONARY TRUST, PROTECTS A
DISCRETIONARY TRUST FROM GARNISHMENT BY A
FORMER SPOUSE WITH A VALID ORDER OF SUPPORT.
F.S.A. §§ 736.0503, 736.0504.
75. MOST OF THE “FACTS” GIVING RISE TO THE
TRIAL COURT’S ORDER FINDING WAIVER OF THE
WIFE’S PRIVILEGE WERE OBTAINED THROUGH
ARGUMENTS MADE BY HUSBAND’S COUNSEL.
AS WE HAVE EXPLAINED, WE REJECT THE USE
OF UNSWORN ASSERTIONS MADE BY
ATTORNEYS AS EVIDENCE. LEON SHAFFER
GOLNICK ADVER., INC. V. CEDAR, 423 SO.2D
1015 (FLA. 4TH DCA 1982).
-- SMITH V. SMITH, 64 SO. 3D 169, 171
(FLA. 4TH DCA, 2011) (NO ADMISSIONS, NO
TESTIMONY WAS RECEIVED)
79. “ Florida Rule of Civil Procedure 1.140(b) provides that every
defense in law or fact to a claim for relief in a pleading shall be
asserted in the responsive pleading, if one is required. However, the
rule identifies seven defenses that a defendant may raise by motion
before pleading. Fla. R. Civ. P. 1.140(b). “A motion making any of
these defenses shall be made before pleading if a further pleading is
permitted.” Id. Furthermore, “[a]ny ground not stated shall be
deemed to be waived except any ground showing that the court lacks
jurisdiction of the subject matter may be made at any time.” Id.
Accordingly, defenses are generally waived if not raised by pre-answer
motion or responsive pleading. Fla. R. Civ. P. 1.140(h)(1). “
--
80. Most Common Mistake re: Affirmative Defenses ?
Standing
Ask yourself: why or how can this petitioner bring this
claim?
“ We have previously explained that lack of standing is an
affirmative defense that must be raised by the defendant
the failure to raise it generally results in waiver. See Glynn v.
First Union Nat'l Bank, 912 So.2d 357, 358 (Fla. 4th DCA
2005)” -- PHADAEL v. DEUTSCHE BANK TRUST
AMERICAS as Trustee for RALI 2007QS9 83 So.3d 893 (Fla.
DCA, 2011) rehear. den. April 12, 2012
89. 989 So.2d 1242
District Court of Appeal of Florida, Fourth District.
Susan VALLIERE and A. James Valliere, Petitioners,
v.
FLORIDA ELECTIONS
COMMISSION, Respondent.
No. 4D08–1709.
|
Sept. 10, 2008.
90. THE DETERMINATION OF AN ATTORNEY CLIENT
RELATIONSHIP IS A QUESTION OF FACT. “[T]HE
TEST FOR DETERMINING THE EXISTENCE OF [AN
ATTORNEY-CLIENT] RELATIONSHIP IS A SUBJECTIVE ONE
AND ‘HINGES UPON THE CLIENT'S BELIEF THAT HE IS
CONSULTING A LAWYER IN THAT CAPACITY AND HIS
MANIFESTED INTENTION IS TO SEEK PROFESSIONALLEGAL ADVICE.’ ” GREEN V.
MONTGOMERY COUNTY, 784 F.SUPP. 841, 845–46 (M.D.ALA.1992)
(CITATIONS OMITTED). HOWEVER, “[T]HIS SUBJECTIVE
BELIEF MUST ... BE A REASONABLE ONE.” ID. SEE ALSO
BARTHOLOMEW V. BARTHOLOMEW, 611 SO.2D 85,
86 (FLA. 2D DCA 1992). --- VALLIERE V. FLORIDA ELECTIONS COMMISSION, 989 SO. 2D
1242, 1243 (FLA. 4TH DCA, 2008)
92. • Dingle v. Dellinger was a case regarding whether a duty was owed
to a non-client
• Non-client = a grantee of a deed
• An intended grantee of real estate
• Deed was prepared by a Florida lawyer based upon a foreign
power of attorney
• The POA was later found to be insufficient to permit the grantor
the real estate to transfer the realty to the grantees (the Dingles)
• Who challenged the deed?
• The surviving spouse did, after the grantor died
• Plaintiffs/Dingles conceded there was no A/C relationship BUT
• Alleged that they were third party beneficiaries of the contract
between the Florida law firm and the (now deceased) client who
hired the law firm to prepare the deed. Summary: plaintiffs
the M2D
93. Third-Party Beneficiary Claim
1. A contract
2. An intent that the contract primarily and directly benefit the
third party
3. Breach of the contract
4. Resulting damages to the third party
--- Dingle v. Dellinger, 134 So. 3d 484, 488 (Fla. 5th DCA, 2014)
94. • Does Dingle v. Dellinger create an end-run
around the privity requirement ?
• How is a deed drafting retention different than
a “I want to put my nephew Johnny in my will”
retention ?
95. • Hodge v. Cichon, 78 So. 3d 719 (Fla. 5th DCA,
2012)
• Intended 3rd party bene’s sue decedent
• How is a deed drafting retention different than
a “I want to put my nephew Johnny in my will”
retention ?
96. • Does a guardian’s attorney owe a duty to the AIP or Ward?
• Was the AIP or Ward an intended third party bene of the a/c
relationship between the guardian and the guardian’s
• 4th DCA: “ yes “
• Saadeh v. Connors, 166 So. 3d 959, 964, (Fla. 4th DCA 2015).
102. # 10 - LIEN ON FILES & CHARGING LIENS
1. Rebecca J. Covey, P.A. v. American Import Car Sales, 944 So. 2d 1202 (Fla. 4th DCA,
2006)
2. Montgomery v. Larmoyeux, 14 So. 3d 1067 (Fla. 4th DCA, 2009), rehear. den. July 21,
2009
3. Jaffe & Hough, P.C. v. Baine, 29 So, 3d 456 (Fla. 2nd DCA, 2010)
4. Santini, M.D. v. Cleveland Clinic Florida, 65 So. 3d 22 (Fla 4th DCA, 2011) rehear. den.
July 26, 2011.
5. Walther v. Ossinksy & Cathcart, P.A., 112 So. 3d 116 (Fla. 5th DCA, 2013)
6. Fox v. Widjaya, 201 So. 3d 26 (Fla. 3rd DCA, 2013)
7. CK Regalia, LLC v. Thornton, 159 So, 3d 358 (Fla., 3rd DCA, 2015)
8. Christopher N. Link, P.A. v. Rut, 165 So. 3d 768 (Fla. 4th DCA, 2015)
9. Conde & Cohen, P.L. v. Grandview Palace Condo. Assoc., Inc., 201 So. 3d 64 (Mem)
(Fla. 3rd DCA, 2015)
108. Opportunity Cost & Risk
Failing to advise client of risks of not
accepting settlement proposal.
See Sauer, v. Flanagan and Maniotis, P.A.,
748 So. 2d 1079 (Fla. 4th DCA, 2000).
( offer of judgment was rejected, loss at trial,
judgment for fees/costs )
110. The X Factor – Attorneys Fees !
(and fee shifting statutes)
What does your Legal Services
Contract say?
Your ongoing communications
to client?
111. Responsibility to pay opposing party fees or and/or costs.
Note that you may be responsible for paying others’
attorneys’ fees and costs, especially in probate, trust,
guardianship, and family law matters. Where applicable under
certain laws, statutes, rules, or contracts, the court may
require you to pay attorneys’ fees incurred by another party.
Similarly, certain costs are almost always paid by the losing
party. You understand this risk and accept it. Similarly, you
may have the right to recover fees or costs from another
party. Attempting to recover fees and costs for you, if
possible, is part of the services that we provide in litigation.
However, there is no guarantee that you will be reimbursed
from others for attorneys’ fees which you pay to Firm or for
costs incurred.
116. C. THE COMMAND IS NOT
“LESSENED” BECAUSE IT’S ON
PAPER & NOT IN A MORE FORMAL
SETTING LIKE A COURT OF LAW
117. D. SHOULD YOU EXPLAIN THE
CONSEQUENCES OF NOT
COMPLYING WITH THE ORDER OR
COMMAND?
118. # 1 4 - GUARDIANSHIP MATTERS: WHO IS
YOUR CLIENT?
119. # 15 -DON’T GIVE
YOUR FILES, ESTATE
PLANS, DRAFTS, OR
OTHER DOCUMENTS TO
NON CLIENTS!
120. DON’T GIVE CLIENT DOCUMENTS TO NON-CLIENTS !
ADULT CHILDREN AND SPOUSES ARE OFTEN NON-CLIENTS !!
RULE 4-1.6 CONFIDENTIALITY OF INFORMATION
(A) CONSENT REQUIRED TO REVEAL INFORMATION. A
LAWYER MUST NOT REVEAL INFORMATION RELATING TO
REPRESENTATION OF A CLIENT EXCEPT AS STATED IN
SUBDIVISIONS (B), (C), AND (D), UNLESS THE CLIENT GIVES
INFORMED CONSENT.
122. F. S. 95.11……..(4) There is no lawyer-client privilege under this section when:
…………………………….
(b) A communication is relevant to an issue between parties who claim through the same
deceased client.
126. ARE YOU SETTLING MATTERS ORALLY,
ON THE RECORD IN THE COURTROOM ?
WITHOUT A WRITTEN AGREEMENT ?
READ RICHARDSON V. KNIGHT, 197 SO.3D 143 (FLA. 4TH
DCA, JULY 27, 2016)
129. AIR TURBINE TECH., INC., VS. QUARLES & BRADY, LLC
165 SO. 3D 816 (FLA. 4TH DCA, 2015)
CASE STARTED WITH:
-- $20 -$50 MM IN DAMAGES AND A
-- $500,000 OFFER ( REJECTED)
ENDED WITH:
-- LOSS AT TRIAL
-- SUMMARY JUDGMENT LOSS
-- MOTION FOR $4.7 MM IN FEES
-- $850,000 SOUGHT IN COSTS
-- AND THE ATTORNEY’S ADVICE ABOUT LEGAL FEES
WAS CORRECT !
(ALSO A JUDGMENTAL IMMUNITY CASE)
141. # 2 -
HOW DO ETHICAL
RULES IMPACT OUR
PRACTICE?
142. COMMUNICATIONS
RULE 4-1.4 COMMUNICATION
(a) Informing Client of Status of Representation. A lawyer shall:
(1) promptly inform the client of any decision or circumstance with respect to which the client's informed
consent, as defined in terminology, is required by these rules;
(2) reasonably consult with the client about the means by which the client's objectives are to be accomplished;
(3) keep the client reasonably informed about the status of the matter;
(4) promptly comply with reasonable requests for information; and
(5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows or
reasonably should know that the client expects assistance not permitted by the Rules of Professional Conduct or
other law.
(b) Duty to Explain Matters to Client. A lawyer shall explain a matter to the extent reasonably necessary to permit
the client to make informed decisions regarding the representation.
143.
144. • Strategy
• Decisions made
• Issues discussed
• But also……………..don’t over-promise
“Sauer stated in her deposition that her attorneys repeatedly told her that there
was no way they were going to lose at trial and that she was going to win more
than a million dollars. According to Sauer, Maniotis discussed the offer with her, telling
her that after she paid her attorney's fees and paid back worker's compensation, she'd be
“stuck with pennies,” and that it would be ridiculous to take the offer.”
-- Sauer at 1080.
145. “ The importance of settlement to clients and to society mandates that we recognize that an
attorney has a duty to utilize ordinary skill and knowledge in advising the client. See Rizzo v.
Haines, 520 Pa. 484, 555 A.2d 58, 64 (1989); see also Thomas v. Bethea, 351 Md. 513, 718 A.2d
1187, 1194 (1988)(“The principle that a lawyer may be held liable for negligence in handling of
a case that was ultimately settled by the client, whether based on deficiencies in preparation
that prejudiced the case and more or less required a settlement or on a negligent evaluation of
the client's case, has been accepted by nearly every court that has faced the issue.”);
Ziegelheim v. Apollo, 128 N.J. 250, 607 A.2d 1298, 1304 (1992)(reversing summary judgment
for the lawyer, the court opined “[a]lthough we encourage settlements, we recognize that
litigants rely heavily on the professional advice of counsel when they decide whether to
accept or reject offers of settlement, and we insist that the lawyers of our state advise clients
with respect to settlements with the same skill, knowledge, and diligence with which they
pursue all other legal tasks.”
--- Sauer @ 1082.
146. SO………….
Don’t dump a settlement agreement in the lap
of a client and write an email that says “Here’s
the latest offer, if you have any questions, let
me know. Otherwise, I assume that you
understand it. Let me know what you want to
do.”
148. RULE 4-1.2 OBJECTIVES AND SCOPE OF REPRESENTATION
(c) Limitation of Objectives and Scope of Representation.
If not prohibited by law or rule, a lawyer and client may agree
to limit the objectives or scope of the representation if the
limitation is reasonable under the circumstances and the
client gives informed consent in writing. If the attorney and
client agree to limit the scope of the representation, the
lawyer shall advise the client regarding applicability of the
rule prohibiting communication with a represented person.
150. LIENS ON FILES AND PROPERTY OBTAINED IN CONNECTION WITH YOU MATTER.
YOU ACKNOWLEDGE A LIEN THAT APPLIES TO FUNDS HELD IN TRUST AS SECURITY FOR PAYMENT, AND TO
ANY ASSETS THAT ARE RECOVERED FOR YOUR BENEFIT BY THE FIRM IN LITIGATION.
YOU GRANT TO FIRM AN ONGOING AND EXCLUSIVE CHARGING LIEN.
SO LONG AS YOU HAVE AN OUTSTANDING BALANCE DUE TO THE FIRM, YOU AGREE THAT THE FIRM MAY
……….
THE LIEN MAY BE RESOLVED BY THE COURT IN WHICH THE SUBJECT LITIGATION IS PENDING. IF YOU DO NOT
UNDERSTAND THESE LIENS, DO NOT SIGN THIS, BUT SEEK INDEPENDENT LEGAL ADVICE.
YOU AUTHORIZE FIRM TO GIVE NOTICE OF THE FIRM’S LIEN(S), DESCRIBED ABOVE, TO ANY COURT OR PERSON,
FIRM OR CORPORATION. THE LIENS CREATED HEREIN ARE FOR ALL FEES AND COSTS OWED BY YOU TO FIRM
WHETHER THEY ARISE IN CONNECTION WITH THIS OR ANY OTHER MATTER. IN THE EVENT FIRM IS
DISCHARGED OR IS REQUIRED TO WITHDRAW AS YOUR ATTORNEYS BEFORE COMPLETION OF YOUR MATTER,
YOU AGREE THAT A NOTICE OF LIEN MAY BE FILED TO PROTECT THE FIRM’S RIGHT TO A RETAINING LIEN
AND/OR CHARGING LIEN. YOU AGREE THAT ANY DISPUTE OVER THE PROPRIETY OF THE LIEN, INCLUDING THE
AMOUNT OF FEES AND COSTS TO BE PAID TO SATISFY THE LIEN, MAY BE SUMMARILY DETERMINED BY THE
COURT IN THE SAME ACTION IN WHICH WE APPEARED ON YOUR BEHALF, OR THAT THE FIRM MAY FILE AN
INDEPENDENT ACTION.
151.
152. Course Number: 1608416N
Course Name: Advising the Estate
Planning Attorney
CLE CREDITS
2.5 hours Ethics
2.5 hours General
2.5 hours Certification (Wills, Trusts and
Estates)
153. IN CONCLUSION, REMEMBER THAT IT IS
IMPORTANT TO CONSIDER THE FOLLOWING
:
II. What is Legal Malpractice?
III. Florida Legal Malpractice Cases, Issues
& Potential Traps for the Unwary
IV. Non-Florida Legal Malpractice Cases
V. Ethics
VI. Conclusions
154. John Pankauski, Esq.
(561) 514-0900 Ext.105
john@phflorida.com
Robert Hauser, Esq.
(561) 514-0900 Ext.102
hauser@phflorida.com