Articles Posted in Professional Malpractice & Ethics

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Appellant, a Kentucky-licensed land surveyor, testified as a trial expert on behalf of defendants in a quiet-title action in circuit court. The trial court eventually ruled in favor of the plaintiffs. Alleging that Appellant gave misleading and inaccurate trial testimony during the trial, the Kentucky State Board of Licensure for Professional Engineers and Land Surveyors initiated disciplinary proceedings against Appellant. The Board ultimately suspended Plaintiff’s surveyor’s license, concluding that Plaintiff’s expert witness performance violated professional standards. Appellant sought judicial review. The Supreme Court held (1) a number of the statutes and regulations enforced by the Board against Appellant were impermissibly vague as applied to him; and (2) the Board’s decision to discipline Appellant was supported by substantial evidence. Remanded to the Board for reconsideration of Appellant’s sanction. View "Curd v. Ky. State Bd. of Licensure for Prof’l Eng’rs & Land Surveyors" on Justia Law

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Following the death of their father in an accident in which the van he was driving struck a retaining wall, Appellees retained a law firm and attorneys (collectively, Appellants) to pursue a wrongful death action against the company charged with maintaining the van. The circuit court dismissed the suit after the defendant successfully excluded two of the plaintiffs' expert witnesses. Two years later, Appellees filed a professional negligence action against Appellants. The trial court granted Appellants' motion for summary judgment, finding that Appellees were not in privity with Appellants and thus lacked standing to sue for professional negligence. The court of appeals reversed, concluding (1) there was a material factual issue in dispute as to whether Appellees were represented by Appellants or were led to believe they were being represented by them, and (2) even if there was no privity, the children were owed professional duties because they were the intended beneficiaries of the underlying wrongful death action. The Supreme Court affirmed, holding (1) there were issues of material fact regarding the attorney-client relationship; and (2) the attorneys owed duties to the children, who were real parties in interest to the wrongful death action. View "Pete v. Anderson" on Justia Law

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Plaintiffs brought a lawsuit against the company that marketed the anti-obesity drug combination known as Fen-Phen. Plaintiffs claims were transferred from Kentucky to a similar action pending in Alabama, where Plaintiffs were represented by Attorneys. After Plaintiffs' claims were settled, Plaintiffs brought this action against Attorneys, claiming that Attorneys wrongfully withheld from each Plaintiff a substantial portion of the settlement award. The circuit court dismissed the action, concluding that Plaintiffs' complaint was untimely filed under the applicable statute of limitations. The court of appeals affirmed. The Supreme Court affirmed, holding (1) Plaintiffs were not prejudiced by the court of appeals' affirmation of a summary judgment dismissing the claims of all fifty Plaintiffs where the motion before the trial court related to only one particular plaintiff; (2) the court of appeals erred in applying the Alabama statute of limitations rather than Kentucky's, but Appellants' suit was untimely under the applicable Kentucky statutes; (3) Plaintiffs' claims of misrepresentation were subject to the one-year limitation period for professional service malpractice rather than the general five-year limitation period; and (4) the application of the statutes of limitations was not an issue to be resolved by a jury. View "Abel v. Austin" on Justia Law

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This case arose after the settlement of Guard v. American Home Products, Inc., which was brought by Kentucky residents who had taken the diet drug known as Fen-Phen. Each Appellant was a plaintiff in the Guard case and was represented under a contingent fee contract by Appellees, a team of four attorneys. Appellants filed a complaint alleging that Appellees breached their fiduciary duties by wrongfully retaining or improperly disbursing a portion of the Guard case settlement money that should have gone to Appellants. The trial court granted partial summary judgment to Appellants, finding three of the attorneys breached their fiduciary duty. The court of appeals reversed and remanded the case against the three attorneys for further proceedings. The Supreme Court reversed the court of appeals' opinion regarding the issue of the three attorneys' breach of fiduciary duty and reinstated the partial summary judgment entered against them, holding, primarily, (1) the facts established a breach of fiduciary duty that entitled Appellants to summary judgment on the three attorneys' liability as a matter of law; and (2) the court of appeals did not err by declining to review the trial court's denial of summary judgment against the fourth attorney, as the order was not appealable. View "Abbott v. Chelsea " on Justia Law

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While Brenda Osborne was at home alone, an airplane pilot crashed his airplane into Osborne's home. Osborne subsequently hired Attorney to assist her recovering her losses from the pilot, but when the lawsuit was finally filed, the federal court dismissed the action as barred by limitations. Osborne filed this action against Attorney asserting breach of contract, legal malpractice, and fraud and deceit. A jury found in favor of Osborne, resulting in a judgment against Attorney in excess of $5 million. The court of appeals affirmed the judgment in part but vacated a large portion of the damage award. The Supreme Court reversed, holding (1) the trial court properly tried this case using the suit-within-a-suit method but erred when it failed to instruct the jury on Pilot's negligence, thus resulting in Osborne's failure to establish that Attorney's malpractice proximately caused her loss; (2) emotional-distress plaintiffs must first satisfy the elements of a general negligence claim; and (3) punitive damages are not recoverable against an attorney in a legal malpractice case. View "Osborne v. Keeney" on Justia Law

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Roger Elliott, who served as a district court judge for almost twenty-five years and who was a member of the Senior Status Judge Program, was indicted on one count of theft of labor already rendered. Elliott entered an Alford plea to the charge. The circuit court entered an order granting Elliott a pretrial diversion. The judicial conduct commission then issued an order of public reprimand. As a condition of the reprimand, Elliott agreed to resign from the judge program and not seek to re-enter it. As a follow-up to resolve the temporary suspension of his bar license, Elliott and the office of bar counsel agreed to a negotiated sanction. Elliott requested that the Supreme Court enter an order suspending him from the practice of law for two years with one year probated and one year to serve, effective from the date of the order, on conditions that Elliott continue compliance with the terms and provisions of his pretrial diversion contract and that he incur no new disciplinary charges during the probationary period. The Court concluded that the sanctions were appropriate. View "Elliott v. Ky. Bar Assoc." on Justia Law

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Appellant GMAC Mortgage Corporation, through its attorneys Appellants Morgan & Potter, Attorneys, P.S.C. filed a disciplinary complaint against Appellee Noel Botts. Botts had represented GMAC's successor-in-interest in a foreclosure action. The trial commissioner conducted an evidentiary hearing and ultimately determined that the Kentucky Bar Association failed to prove by a preponderance, that Botts committed any of the acts or omissions charged. The Board of Governors accepted the trial commissioner's determination, and charges against Botts were ultimately dismissed. Subsequently Botts filed suit against GMAC and Morgan & Pottinger in circuit court, requesting relief from pecuniary and professional harm he allegedly suffered as a result of the disciplinary complaint. In his suit, Botts alleged wrongful use of civil proceedings, defamation and slander, abuse of process, fraud and outrageous conduct. Appellants filed numerous motions to dismiss based on claims of immunity, all of which were denied. Because Appellants claimed immunity as the basis for their motions, the order is appealable. Because the claim raises an issue of statewide importance, the Supreme Court granted Morgan & Pottinger's motion to transfer. State law holds that any statement made in the institution of, or during the course of an attorney disciplinary proceeding, is privileged so long as it is material, pertinent and relevant to that proceeding. Even if it patently fails or is entered with malice, the Kentucky "judicial statements" privilege is absolute and would still apply. The Court noted that Botts' allegations of wrongful use of civil proceedings, abuse of process, fraud and outrageous conduct are not based singly on Appellants' statements contained in the Bar Association complaint, but also on the act of filing the complaint. Whether the "judicial statements" privilege encompasses the act of filing the complaint is a matter of first impression. The Court decided that any communication or statement made to the Bar Association during the course of a disciplinary hearing or investigation, including the contents of the complaint initiating such proceedings, are absolutely privileged and extend to the act of filing the complaint. The Court remanded the case back to the circuit court for additional fact finding to address the basis of Botts' claims for fraud, defamation and slander.