I would like to take this opportunity to write to your law firm and thank you for coming through for me when I lost hope in my previous attorney.
We will gladly be a reference for you, and we certainly will recommend you as the attorney to have in Louisville. You have a gift in the way you are able to communicate with your clients and within the legal system.
My father would have been so proud to know that his case was driven home with such passion and genius. Thank you for giving that jury every tool they needed to hold those people accountable for the torture they inflicted on my Dad.
Anyone familiar with this blog is probably familiar with Louisville attorney Fred Radolovich (see previous posts). Radolovich resigned from the bar under terms of disbarment rather than risk being prosecuted for perjury charges arising out of misrepresentations he made to a judge about his experience handling death penalty cases (he said he had tried 4 when he hand actually tried 0).
Here is why he is relevant today. Because a large portion of my practice is representing people in claims against their former attorney (a.k.a. legal malpractice or legal negligence), I am frequently asked to review cases where a potential client believes their former lawyer mishandled a criminal matter and, as a result, the person was convicted of a crime the didn't commit. I have never taken a case involving malpractice in a criminal case and there is a good reason. Kentucky law requires that a criminal conviction be overturned before you can so the lawyer for malpractice. That's right. Basically, your lawyer could fall asleep in trial, refuse to cross exam any witnesses or present any proof. But unless you won on appeal, you could not sue the lawyer for malpractice. A very high burden indeed.
Well, it seems someone may have a good criminal malpractice claim against Fred. Here is the opening paragraph from Andrew Wolfson's article in the Courier Journal:
"Fifteen years old and charged with two murders in 1995, Michael Jennings thought he had no choice but to plead guilty in exchange for a life sentence.
His own lawyer, Fred Radolovich, indicated he could face the death penalty — or consecutive sentences of life without parole for 25 years — if he was convicted at trial, according to court records.
Radolovich, who has since been disbarred, was wrong on both counts: The U.S. Supreme Court had abolished the death penalty for such young offenders more than a dozen years earlier, and Kentucky law doesn't allow life sentences to be run consecutively.
For 14 years, Jennings fought from behind bars to overturn his conviction.
He saw his efforts rewarded Wednesday, June 17, when U.S. Magistrate Judge Dave Whalin in Louisville ruled that Radolovich gave Jennings such bad advice that his conviction should be thrown out and the state of Kentucky should try him or release him."
It's not a slam dunk, and Radolovich might not have any insurance or assets to cover a judgment, but it does go to show that not all lawyers are equal.
Recently, the Kentucky Justice Association asked us to write an article for the Advocate on legal malpractice. We choose to write on the issue of whether a Kentucky legal malpractice plaintiff can recover lost punitive damages in the legal malpractice lawsuit against the attorney. The debate centers around whether these damages are recoverable since the purpose of punitive damages is to punish the wrongdoer. Defendants take the posistion that because the punitive damages in the underlying case (the one the lawyer malpractice) were meant to punish the original wrongdoer, forcing the lawyer to pay them does not punish the orignial wrongoer. This article explorers that concept and concludes that the fundamental purpose of KRS 411.165 as well as Kentucky punitive damage law will only be served if lost punitive damages are recoverable against a negligent attorney. Hans
Well, its happened again. I was contacted by a potential client that hired a lawyer to handle a personal injury case, the lawyer malpracticed the case and, surprise surprise, the lawyer doesn't have any insurance. The client's personal injury case was a good one and the lawyer simply didn't know the time limitations on filing the suit. It's forever lost. So, in my opinion, the lawyer has stolen the value of that case from his client. And, to top it all off, the lawyer's failure to carry insurance adds insult to injury. Why does the Kentucky Bar Association, or any state's bar association for that matter, not make legal malpractice insurance MANDATORY? At the very least, make lawyers disclose to clients that they don't have any insurance. At least that way the client can make an informed decision about whether this is the lawyer they want to hire.
Based on this article from 2008 and this article from 2006 only Oregon, has made legal malpractice insurance mandatory. About 22 other states have made lawyers disclose whether they carry insurance or not--but sometimes they only have to disclose to the Bar, not clients. Worthless.
So, what's the deal Kentucky? Are we going to let lawyers continue to represent people without being financially responsible when they malpractice, or are we going to continue to allow them to have a license to steal?
BY MAURICE POSSLEY Special to the Sun-Times mauricepossley@gmail.com
Four Illinois Supreme Court justices have been asked to withdraw from hearing an appeal of a legal-malpractice case against Corboy & Demetrio, one of the nation's top personal-injury firms, because the justices have gotten political contributions from the Chicago firm's attorneys.
The case involves a hotly contested case alleging that Corboy lawyers mishandled a lawsuit brought on behalf of the family of a Georgia woman who was killed and her two daughters who were injured in a car crash in 1995.
The motion seeking the recusal of Supreme Court Chief Justice Thomas Fitzgerald and Justices Anne Burke, Charles Freeman and Robert Thomas comes just after the U.S. Supreme Court agreed to hear arguments in a West Virginia case testing whether elected judges can take part in cases involving campaign contributors.
Because there are seven justices on the Illinois court, the motion sets up the possibility that, should the justices step aside, there would be only three justices left to hear the case -- rendering an appeal meaningless. The Illinois Constitution requires four votes for any Supreme Court ruling to be official, and the constitution has no provision for appointing interim justices should a justice withdraw.
Such a dilemma would be "absurd," attorney Charles Boyle noted in his motion.
The original lawsuit alleged that Corboy lawyer G. Grant Dixon III, who is no longer with the firm, and Robert Bingle, the firm's managing partner, failed to preserve the damaged vehicle and failed to investigate whether the wreck was the result of a manufacturing defect.
The Corboy firm admitted that the car-crash suit was dismissed because the firm failed to follow a court order but denied all other allegations against the firm. A judgment of $100,000 was entered against the law firm, and all other counts of the lawsuit were denied.
In a motion filed Nov. 24, Boyle asked the Illinois Supreme Court for permission to review the lower court's rulings and asked the four justices to step aside from hearing his petition.
The motion states that some members of the Corboy firm and two of the firm's experts in the car crash case have donated $52,000 to Fitzgerald, $33,000 to Thomas and $30,000 to Freeman. It says that while Burke has received $1,500 in contributions, the firm has donated $24,000 to her husband, Ald. Edward Burke (14th).
While federal judges must disqualify themselves from any case in which they have any personal or financial interest, states generally have no specific criteria for campaign contributions.
Attorney Michael Reagan, representing the Corboy firm in the case, said the amounts in the Illinois case are "ordinary campaign contributions" that are a "fact of life in a democracy."
Maurice Possley is a Pulitzer Prize-winning journalist who recently left the Chicago Tribune. He worked for the Chicago Sun-Times from 1978 to 1984.
Now Keeney is defending himself against allegations he took a client's money he wasn't entitled to and then failed to file her lawsuit before the statute of limitaions expired. It seems Keeney was hired by a woman after a plane crashed into her house. She claims he was hired to help her obtain insurance benefits and to sue the pilot and recover for her personal injuries and emotional distress as a result of the plane crashing into her house and the subsequent issues of dealing withher insurance company. According to the article, Keeny took 20% of her homeowner's insurance proceeds, but failed to file the personal injury lawsuit against the pilot on time, resulting in her personal injury claim being dismissed.
It seems this is not the first time Keeney has had problems in his legal career. His license to practice law has been suspended by the Kentucky Supreme Court on two occasions.
Here is the first order of suspension:
Pursuant to SCR 3.370(6)(7), attorney Steven H. Keeney of Louisville has requested a review of a recommendation by the Board of Governors of the Kentucky Bar Association. The recommendation was to the effect that Keeney should be suspended from the practice of law for 59 days for being in violation of SCR 3.130-1.16(d) for failing to return unearned fees advanced to him by a client, and for being in violation of SCR 3.130-1.3 for failure to exercise diligence and promptness in the representation of a client.
His primary defense is his record and reputation for good character and statements that the charges are unfounded because of a contract that existed between himself and the client. This contract was provided to the client by Keeney's office in the form of what is called an Engagement Agreement.
The contract clearly states that the client was to advance the sum of $4,000.00 and that the advance would be first applied to costs and then to fees. There is nothing within the record to lead this Court to conclude that the $4,000.00 payment was for prior services rendered or any other purpose but to pursue a civil action against his client's former employer. There is no evidence to indicate that this task was ever undertaken by Keeney. To further compound his misconduct, Keeney stubbornly refused to return his file to the client on request and maintains he has done nothing to violate the standards of practice.
The Court has fully considered the notice for review and brief filed by counsel for Keeney and the brief for the Kentucky Bar Association.
The recommendation of the Board of Governors of the Kentucky Bar Association that Keeney be suspended from the practice of law for a period of 59 days for violations of SCR 3.130-1.3 and SCR 3.130-1.16(d) is hereby adopted as the decision of this Court.
IT IS ORDERED that
1) Steven H. Keeney shall pay the costs of this action.
2) That Steven H. Keeney is suspended from the practice of law in the Commonwealth of Kentucky, commencing with the date of the entry of this order, for a period of 59 days.
All Concur.
ENTERED this 1st day of July, 1993.
/s/ Robert F. Stephens
Chief Justice
Here is the second order of suspension:
Steven H. Keeney accepted a retainer fee from an out-of-state lawyer to assist in collecting an attorney's fee from an estate in Kentucky. Because Keeney ceased communicating with the client, the matter was turned over to the Kentucky Bar Association for further action.
After the filing of the complaint, the respondent failed to respond to inquiries from the KBA. As a result, charges were made against the respondent. Count I charged a failure to keep a client reasonably informed about the status of a matter and to promptly comply with reasonable requests for information. Count II charged a failure to act with reasonable diligence and promptness in representing a client.
After investigation, the KBA found that the respondent did accept the retainer fee and did not perform any legal services for his client, although, during the course of the investigation, the respondent did return the retainer fee. The Board of Governors found that there was sufficient evidence to support a verdict of guilt on both counts. The Board also entered into the record the fact that Keeney had been previously suspended from the practice of law on July 1, 1993, for fifty-nine days for failure to return unearned fees advanced to him by another client and for failure to exercise diligence and promptness in the representation of that client. A sixty-day suspension was recommended.
The respondent, Steven H. Keeney, is hereby found guilty of one count of failure to keep a client reasonably informed about the status of a matter and to promptly comply with reasonable requests for information, and one count of failure to act with reasonable diligence and promptness in representing a client. As a result, the respondent is suspended from the practice of law for sixty days from the date of this Order.
ENTERED: February 24, 1994.
/s/Robert F. Stephens
ROBERT F. STEPHENS,
Chief Justice
The trial has been going on for almost two weeks and the jury should begin deliberations on Monday.
Yesterday, I wrote about a legal malpractice trial going on here in Louisville. In one of the largest legal malpractice verdicts in Kentucky history, a jury returned a verdict today against attorney Steve Keeney for $5 million. The allegations of legal malpractice arise out of his handling of a case for Brenda Osborne, of Middlesboro. The Jefferson Circuit Court jury determine that Keeney lost a federal court case stemming from the an airplane accident in which she could have recovered about $1.3 million (this is known as the "case within a case." It awarded her that amount, as well as $250,000 for mental anguish. The jury also voted 11-1 to award of $3.5 million in punitive damages, which are meted out to deter and punish intentional and willful misconduct.
This was an unusual case because Osborne was not physically injured when a small plane crashed into her home. She escaped her home without physical injury--however, Keeney told her the case was worth about a $1 million. This jury agreed with her; however, it's Keeney's legal malpractice insurance company that will have to pay the verdict, not the pilot of the plane.
Fortunately, we may soon have an answer on this issue as I will be appealing a judge's ruling on this exact issue later this year. I'll post the briefs to the site.
Here is an interesting legal malpractice case out of Georgia. It seems that Donald W. Osborne was defending an automobile crash case where his client, Don Turner, was accused of causing an accident that killed someone. Here is the problem. Lawyer Osborne never contacted client Turner about the trial. In fact, he never even spoke to his client before the trial. One more thing. Lawyer Osborne stipulated (admitted) that client Tuner was negligent---even though he never spoke with his client. The jury awarded $1.7 million against the absent Turner. By the time Turner knew about the trial it was over, and he was facing a huge judgment.
The jury awarded Turner $991,000 against his "lawyer."
What I don't understand is why the jury only awarded half of the damages. Generally, in cases like this, the damages in the first case establish the damages in the legal malpractice case. Here, that should have been $1.7 million, not the $991,000 the jury awarded.
Thomas Peer loses his leg in a motorcycle accident and hires a personal injury attorney to sue the at-fault driver. As if losing his leg wasn't bad enough, his lawyer tells him the at-fault driver doesn't have much insurance to cover his injuries. Well, a small settlement is better than no settlement--until your lawyer decides to spend it on his own child support payments and office expenses. The bar has stripped him of his law license, but that doesn't put any money into Thomas' pocket.
Any interesting debate is brewing in the legal malpractice arena. If an attorney takes a case on a contingent basis be entitled to reduce the client's award for legal malpractice by the amount the attorney would have received as compensation? Sound complicated? Well, it is. Here is an example. Vicky Innocent is hurt badly in a car wreck. She hires Larry Lawyer to represent her on a 1/3 contingent basis. This means that the lawyer will take 1/3 of whatever he recovers Vicky for her injuries (for example, if he recovers $100,000 for her, then Larry's fee would be $33,333.33). Now let's assume that Larry Lawyer forgets to file the lawsuit within the statute of limitations and Vicky can no longer recover from the at-fault driver. So, Vicky hires a Malpractice Attorney to to sue Larry Lawyer to recover for her what she would have received from the car wreck. If a jury Vicky $100,000, does Larry Lawyer get to subtract $33,333.33 from it and just give Vicky $66,666.66? If so, then she is likely going to be hit with another whammy when Malpractice Attorney asks for his 1/3 contingent fee. Poor Vicky may only end up with $33,333.33 after the reduction. Such is the argument currently brewing over legal malpractice damages in Texas.
Kentucky has never addressed the issue; however, I don't think it would allow Larry Lawyer a set-off for his contingent fee because of KRS 411.165.
Some of the major criticisms of Judge Shull's behavior including him forcing a woman in a custody hearing to remove her pants to show him a wound she claims her husband inflicted. According to the opinion, Shull order the woman to remove her pants in open court not once, but twice. The Commission also pointed out that in a previous custody hearing Shull had decided a visitation issue by flipping a coin in open court. It seems that this wasn't Judge Shull's first time in from of the Commission for improper conduct. In 2004, Shull was brought before the commission on allegations he called a 14-year old a "mama' boy" and a "wussy." The 2004 panel also determined that during a domestive violence hearing Shull had told a woman she should marry the man accused of beating her. In taking a step that had only occured once before, the Commission removed a sitting judge from the bench by holding: "We further conclude that Judge Shull’s violations of the Canons were grave and substantial. A judge’s act of tossing a coin in a courtroom to decide a legal issue pending before the court suggests that courts do not decide cases on their merits but instead subject litigants to games of chance in serious matters without regard to the evidence or applicable law. Such conduct may have a profoundly negative impact, not only on the parties’ ability to accept the “rule of law” imposed in their particular case, but also on the public’s confidence in and respect for the judiciary. In order for our justice system to maintain the confidence and respect of the public, judicial decisions must be based on the evidence and pertinent law. The contrary actions of Judge Shull, reduced to their essence, were actions that denigrated the litigants whose case he decided and subjected our justice system to ridicule."
Paul Hastings sued for $30 mil by "Surf chick" by a surfing-gear maker that hired it to trademark the phrase “Surf Chick,” the Maryland Daily Record reported.
The Ventura, Calif.-based Kat House Productions say Paul Hastings failed to register trademarks after saying it had done so. According to the New York Attorney Malpractice Blog, "The suit, in Manhattan federal court, says Christian Dior SA was able to copy the “Surf Chick” mark because of the alleged negligence of the firm and several attorneys. “Had defendants properly applied for, and diligently prosecuted, the trademark applications, Christian Dior would not have been able to mimic and copy plaintiffs’ mark,” the complaint says. " to mimic and copy Kat House's work.
The suit is being heard in the U.S. District Court in the Southern District of New York.
The Kentucky Justice Association is holding a legal malpractice seminar with some great speakers, including Edward Stopher of Boehl Stopher Graves, Lee Sitlinger of Sitlinger, McGlincy and Theiler, Gary Weiss and Allan Cobb, as well as your truly. You can download the brouchure here. Hans Poppe
Well, it doesn't rise to the level of legal malpractice, and it didn't happen in Louisville but it is very interesting. Law.com is reporting that attorney Joseph R. Ziccardi has been sanctioned $29,000 by U.S. District Judge Eduardo C. Robreno for his client's foul language during a deposition.
Every litigation attorney has, at one time or another, been in a deposition where his client said something unexpected. Most of the time its no big deal, but here Judge Robreno decided that Aaron Wider, the CEO of HTFC, engaged in "hostile, uncivil, and vulgar conduct, which persisted throughout the nearly 12 hours of deposition testimony."
Robreno noted that Wider used the "F word" or variations of it 73 times during the deposition and that the video shows that Ziccardi at one point "snickered" at his client's conduct.
Unfortunately, I don't have any video of that deposition. But for a classic deposition taken Texas style click here to see two attorneys practically come to blows.
According to the Courier Journal, in a suprising turn of events, Cincinnati lawyer Stan Chesley has indicated he will not testify as an expert for his former co-counsel, William Gallion, Shirley Cunningham and Melbourne Mills in their criminal Fen-Phen trial. Those familiar with this blog know that we have been following the criminal trial as well as the legal malpractice trial. Chesley, a nationally known class-action plaintiff's attorney is the only one of the four lawyers involved in the Kentucky Fen-Phen settlement to not be indicted on criminal charges. Chesley's refusal to serve as an expert will make it difficult for Gallion, Cunningham and Mills to claim they relied on Chesley's advice in how they divided the settlement; although they have now indictated attorney Richard L. Robbins of Atlanta will now serve as their expert (Stay posted to see if Judge Bertelsman allows this since they disclosed Robbins after the deadline). In another interesting twist, Gallion and Cunningham have asked that the judge ban the prosecution from telling the jury that they are part owners of Curlin, the 2007 Preakness winner. Hans Poppe
One question I am often asked in legal malpractice cases is "can a lawyer be sued for legal malpractice in a state where he does not live or work if he took a case there?" This question is really asking, does the state where the legal work was done, supposed to be done, have jurisdiction over a non-resident lawyer that may not be licensed in the state and may have never even visited the state. Well, a federal court in the Western District of Kentucky has issued an opinion answering the question. A Minnesota lawyer was hired by an Indiana resident to investigate and pursue a wrongful death claim in Kentucky. The lawyer sent contracts and medical authorizations to the estate's representative; however, according to the complaint, the lawyer failed to do any work on the case after receiving the signed documents back from the client. Ultimately, the statute of limitaions expired and the client sued the lawyer in Kentucky. The lawyer argued that a Kentucky court did not have jurisdiction over him because he lived in a different state. The federal court analyzed the situation and ultimately determined that the lawyer had consented to jurisdiction by his actions and that the facts of the underlying medical malpractice case had such a strong connection to Kentucky that jurisdiction was proper.
According to the Courier-Journal, William Gallion's lawyer has been suspended from the practice of law in Tennessee federal court. As a result, he has had to notify the federal court judge in Kentucky of his suspension. William Gallion, Melbourne Mills and Shirley Cunningham Jr. are charged with one count each of conspiracy to commit wire fraud for allegedly bilking 440 clients out of $46 million in the fen-phen settlement. The ex-clients already have won a $42 million civil judgment against the lawyers for legal malpractice and breach of fiduciary duty to their clients. "Herbert Moncier of Knoxville, who was to represent William Gallion, disclosed in court papers this week that he has been suspended from practicing in federal court in eastern Tennessee for five years after being found in contempt of court." It's not yet clear if this will delay the upcoming trial since Gallion is represented by at least two other lawyers, O. Hale Almand Jr. of Macon, Ga., and W. Robert Lotz of Covington. Moncier was suspended for interrupting the Tennessee judge several times after being warned not to. Based on the length of the suspension (5 years) and the amount of the fine ($5,000) and the fact he is orderd to take anger management classes, I have to believe this was something more than simply a few interruptions. Entering criminal contempt sanction against an attorney is extremely rare. We'll see if we can find out exactly what happened.
Hans Addendum: Just as we suspected, this was MUCH MUCH more than simply interrupting a federal judge. In an eighty page opinion, the court stated "Unfortunately, the Court is now confronted with one of those rare instances where an attorney admitted to the bar of the Eastern District of Tennessee has failed to “demean [himself] as an attorney, proctor and solicitor of this Court, uprightly and according to law,” as required by his oath; has engaged in unethical conduct tending to bring the court and the bar of the Eastern District of Tennessee into disrepute; and has engaged in professional misconduct of a nature that violated the Tennessee Rules of Professional Conduct as interpreted and applied by this Court." The federal court goes on to say This case involves an attorney who refused to obey a court order, threatened to abandon a client during a court proceeding, and displayed disrespectful and contemptuous behavior toward the institutional rule of the judge. The gravity of this attorney’s misconduct is exacerbated by his inability to recognize and apologize for his wrongdoings, his frivolous filings with this Court, and other aggravating factors." Wow.
As reported today in the Courier Journal, Louisville attorney Louis Smith has been accused of stealing money from his clients. Prosecutors allege that Smith, an estate attorney, began stealing from clients, including Emily Strange, around 1999.
Although Smith pleaded "non-guilty" to the charges, his criminal lawyer Steve Romines has filed court papers indicated they may defend Smith by asserting his diagnosis of dementia.
On March 20, the Kentucky Supreme Court temporarily suspended Smith from the practice of law for his dealings with Ms. Strange's $1 million estate and stated, "In less than tenyears, all of the money seems to have disappeared, and the client is on Medicaid. Even when the circuit court ordered an accounting by the Respondent, he refused to disclose the whereabouts of the assets and the purpose of their transfer. The circuit court has threatened sanctions, including incarceration on the contempt, until such disclosures are made. We have no doubt that the circuit court has quite a task in seeking to trace the assets from the Respondent."
It has been my experience that lawyers that steal money from clients don't usually have any insurance or assets. This necessarily means that it will be very difficult for any of his victims to recovery in a legal malpractice lawsuit; however, that doesn't mean his victims should sit idly by, they should hire an attorney to investigate if insurance is available and what, if any, assets are available to reimburse the clients and their estates.
One of Augusta's best known criminal defense firms has a problem. It seems they have been sued--23 times. Their insurance carrier has settled all of them-- but one. The one suit they refuse to settle, or even pay for the defense, was filed by Wendell A. Jenifer.
So, not only is the Fleming firm having to pay the costs of defending themselves in the Jenifer case, they have also sued their insurance carrier, Clarendon National Insurance Co,
Jenifer sued the Fleming firm, John Fleming and his nephew William Fleming in 2006. Mr. Jenifer hired the firm and the attorneys to represent him in a personal injury case against a local hotel, and he alleges his case was thrown out because the attorneys did nothing to pursue it.
Mr. Jenifer's malpractice case was scheduled for trial last month in U.S. District Court. It was put on hold to give the Fleming firm and the attorneys time to get a legal ruling about their insurance coverage during the time Mr. Jenifer claims he was neglected.
According to the Fleming firm's lawsuit, Clarendon provided its malpractice insurance until it canceled the policy in August 2002.
The firm then obtained coverage through Royal Surplus. Neither insurance company has provided any defense for the firm or attorneys in the Jenifer case. According to court documents filed in federal court, Clarendon dropped the Fleming firm and attorneys after it had to settle 22 malpractice claims in the fall of 2002. In order to obtain new insurance, John Fleming and William Fleming had to resign from the firm, although John Fleming returned a month later.
In the Jenifer case, the judge has made a very unusual evidentiary ruling. U.S. District Magistrate Judge W. Leon Barfield framed what a federal court jury will hear as follows "I have come to the conclusion ... that much of the insurance evidence proffered by the plaintiffs in this case is admissible," Judge Barfield said.
Judge Barfield ruled that all of the claims filed within the time period that Mr. Jenifer had dealings with the firm and William Fleming can be used as evidence.
Judge Barfield said it is plausible that the Fleming firm found itself in "a firestorm" in 2002. The insurance company canceled the firm's policy, and it was re-instated only when John and William Fleming resigned. John Fleming returned a month later.
It is plausible, Judge Barfield said, that the firm's attorneys realized that any claim Mr. Jenifer might file would not be covered by the insurance. The evidence about the other insurance claims is relevant because the firm admitted to wrongdoing until it came to Mr. Jenifer's case, the judge said.
In another unusual evidentiary ruling, Judge Barfield ruled the Fleming firm cannot call other attorneys as witnesses to give opinions about the merits of Mr. Jenifer's case against the hotel. That will be a decision the jury must make in determining whether there was legal malpractice, Judge Barfield said.
Well, according to the Courier Journal, William (Bill) Gallion is the first of the three fen phen lawyers to take the stand to try to defend their actions in the federal criminal action. According to the article, Mr. Gallion has justified the actions of the lawyers in taking more in fee than their contracts entitled them to because clients who may have gotten nothing in the national case, collected as much as $1.4million. "I thought that was a great result," Gallion said. All three lawyers already have been sued for breach of fiduciary duty and legal malpractice and lost a $40 million verdict.
Gallion also attempted to defend the lawyer's decision to divide the client's money without using a neutral third-party (as required by ethics rules) because, ""We wanted to use our own knowledge." He went on to explain that it would have taken too long to get a third party up to speed on the facts of each individual case.
Hogwash. I was personally involved in the settlement of the Roman Catholic Archdiocese of Louisville settlement in Louisville, Kentucky where we represented over 240 individual plaintiffs in a $25.7 million class action settlement. We hired a neutral third party, Matthew Garretson, to review and analyze each individual's damage claim. Matt reviewed the depositions (of those that had been deposed), as well as their interrogatory responses (answers to written questions asked by the Diocese's attorneys), our client notes on each individual plaintiff, and any additional written damage materal or medical records in our possession (or later supplied by our client) as well as voluntary video damage statements made by clients. Once Matt came up with his damage award for each individual plaintiff, the client could accept the award or "appeal" the award. We hired retired Kentucky Supreme Court Judge Nick King to act as the "appellate judge" to hear any challenges to Matt's initial damage award. Judge King then review all the materials and any additional materials supplied by the client, including an interview if necessary and he could confirm, increase, or decrease the award as he saw fit.
I think the entire process of damage allocation by Matt and Judge King took two months. It was honest, ethical, effect, and quick.
As if the acquital of Melbourne Mills and the subsequent mistrial of the case against William Gallion and Shirley Cunningham wasn't weird enough. Now, Judge William Bertelsman refuses to hear the re-trial. Yesterday, Judge Bertelsman indicated that, not only will he not be the judge on the re-trial of the Fen Phen defendants, he won't hear any more criminal cases at all. Because Judge Bertelsman is a senior judge, he has the option of limiting his case load. While Bertelsman did not comment further on the reasons why he no longer wants to participate in judging criminal cases, one has to assume that this case (and presumably the result) is the reason. One must also assume that the re-trial will be presided over by Federal Judge Danny Reeves. Judge Reeves was appointed to the federal bench in 2001. Prior to being appointed to the bench, Judge Reeves was an attorney at Greenbaum Doll McDonald's Lexington, Kentucky office from 1983-2001. Although none of the lawyers have been convicted criminal, they are still the subject of a $45 million civil judgment for breach of fiduciary duty and they have all been suspended from the practice of law in Kentucky. Hans
One of the questions I am often asked about by potenial clients that are exploring legal malpractice actions against their current or former attorneys is whether the current attorney will still be entitled to a fee if they fire the attorney. This situation generally arises when an attorney has not handled a personal injury case properly, but the client still recovers some money (although not as much as they would have received had the attorney not been negligent) or, they attorney is hired on an hourly basis but performs negligently and the client wants to know if they are entitled to a refund of the fees they paid the negligent lawyer. The law in most states, including Kentucky, is that a negligent lawyer is not entitled to the contractual fee if he or she is fired for cause. In fact, Kentucky has a specific statute that entitles a client to a refund if the lawyer is negligent. Or, to put it another way, if a lawyer is negligent, they can be sued and the fee they received becomes another element of damages. Hans
An appellate court in New York has allowed a client to sue her lawyers over her her 30 year old medical malpractice case even though the lawyers say they fired the client 3 years before she fild her legal malpractice suit. Generally, the statute of limitations bars a person from pursuing a claim if the suit is not timely filed. In some states, like Kentucky, the statute doesn't start to run when the malpractice occurs, but when the attorney-client relationship terminates. So, for example, if a lawyer failed to file your car accident case but didn't tell you for three years, the statute would be "tolled" until you learned of the malpractice (the discovery rule) and then terminated the relationship. They New York court determined that even though the claim was three years old, the lawyers never clearly indicated to the client that they were not going to be pursing the case. Because the relationship was never clearly terminated, the court held that the client could go forward with her lawsuit for the lawyers failing to properly file her medical negligence suit.
Today the Court of Appeals of Kentucky rendered an opinion that may result in a legal malpractice case within a legal malpractice case. In Ronald Manning and Manning Family Trust v. Wilkinson and Stoll Keenon & Ogden, 2005-CA-002491, the court of appeals affirmed the Fayette Circuit Court's dismissal of a legal malpractice case filed against the law firm of Stoll Keenon & Ogden and one of its attorneys. The original dismissal by the trial court was based on the the failure of the attorneys to prosecute the legal malpractice case they filed against Stoll Keenon. Kentucky has a "house keeping" rule that requires circuit court judges to dismiss cases that have been inactive for over a year (CR 77.02). According to the appellate opinion, the circuit court issued three notices that the legal malpractice case would be dismissed unless someone started doing some work on the case. Apparently, no one ever moved the case along and the trial court dismissed the case against Stoll Keenon. The Court of Appeals affirmed the dismissal. One has to now wonder if the clients will hire a lawyer to sue the lawyers that they hired to sue their other lawyers. What a mess.
was recently removed from the bench following some bizarre behavior in the courtroom. The 
