Legal Malpractice

Legal Malpractice is a Two Step Discipline

By (Andrew Lavoott Bluestone)

Because legal malpractice is always a "case within a case" it is a two step process.  The very nature of the two step process gives rise to defendant's ability to brag over winning either of the two legs.  An example is Orick's statement that they were vindicated, even after it was proven that the attorney violated his fiduciary duty.  It can be inferred that the jury determined that the attorney breached his fiduciary duty, but that the plaintiff would have lost control of her business anyway. Here, from the LA Legal Pad :

"The verdict on Tuesday came following a six-week trial and two days of deliberation in Benesch v. Tandler, No. 317187 (San Francisco Co., Calif., Super. Ct.). Plaintiff Fritzi Benesch, the founder of clothing company Fritzi California, claimed Hoisington didn’t make it clear she was giving up control of her company to her daughter and son-in-law.

Jurors did find that Hoisington failed his obligation to his client by breaching a fiduciary obligation, but that it was not a substantial factor in harm to the client. Hoisington spent more than 30 years as a trusts and estates attorney in the San Francisco office of Orrick prior to his retirement.

Note the difference in this report.  Here is a squib from theAmLaw Daily.:

"When a firm's professional reputation is at stake, going to trial is a nerve-racking proposition. But Orrick Herrington & Sutcliffe's insistence that it provided proper counsel to a multimillionaire businesswoman was vindicated on Tuesday: A San Francisco superior court jury found Orrick and retired trusts and estates partner William Hoisington not liable for legal malpractice and breach of fiduciary duty, according to a statement from the firm's lawyers at Keker & Van Nest.
The case was brought in 2000 by Fritzi Benesch, the founder of a clothing company called Fritzi California. In the 1980s, through a series of estate planning transactions, Benesch passed control of her clothing business to her son-in-law and daughter, with whom she said she had "a perfect relationship." But when Benesch later discovered that her husband had been unfaithful, the family fell apart. In a malpractice suit filed in 2000, Benesch claimed that she had been duped by Orrick and Hoisington into signing away her company."
 

Full post as published by New York Attorney Malpractice Blog on December 15, 2008 (boomark / email).