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Court upholds judgment in legal malpractice suit

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The Indiana Court of Appeals affirmed summary judgment in favor of an attorney and law firm in a legal malpractice suit, although the judges didn’t agree on the professional obligations of the firm based on its contract.

The judges unanimously concluded in Gail M. Flatow and Flatow Comer, LLP v. Dwane Ingalls, No. 49A02-0910-CV-994, that Dwane Ingalls didn’t put before the appellate court any legal argument that Gail Flatow or Flatow Comer should have made or evidence that they should have designated in response to the summary judgment motion in the suit in which they represented Ingalls.

Ingalls and the firm had a “contract to hire attorney,” in which the firm would represent Ingalls only in his defamation claim against his former employer, Indianapolis Power & Light. The firm would draft a motion for summary judgment and represent him in this “matter through the end of trial.” The firm would also keep Ingalls informed of the status of the suit. Ingalls also had several other claims against his employer.

Flatow filed the motion for partial summary judgment and brief in support of the defamation claim. IPL filed a cross-motion for summary judgment on all remaining claims, including the defamation claim. The trial court granted summary judgment to IPL on its cross-motion and dismissed Ingalls’ remaining claims with prejudice.

Ingalls filed a legal malpractice complaint against several attorneys, including Flatow and the firm Flatow Comer. He said Flatow was negligent in failing to respond to IPL’s cross-motion for summary judgment.

In affirming the trial court, Judge Margret Robb wrote that Indiana Professional Conduct Rule 1.2(c), which discusses limited representation, hasn’t been addressed in any “substantive way” by Indiana’s appellate courts. But she noted Comments 6 and 7, which discuss when limited representation may be appropriate, and that the limitation is a factor to be considered when determining legal knowledge and skill reasonably necessary for representation.

The majority concluded that Flatow and the firm’s only duty was to file a motion for summary judgment on the defamation claim, reply to any response, and keep Ingalls informed of the status of that matter. The package Flatow sent to Ingalls with IPL’s motions included both the response to his motion for partial summary judgment and IPL’s cross-motion for summary judgment. Ingalls was out of town when the package came. Because of this, they didn’t breach their duty to maintain contact with Ingalls on the matter, wrote Judge Robb.

There isn’t any designated evidence to show the result of Ingalls’ partial motion for summary judgment would have been different if a reply had been filed, wrote Judge Robb. The majority also concluded Flatow and the firm’s representation didn’t include a response to IPL’s cross-motion for summary judgment or that its duty to Ingalls encompassed every aspect of the defamation claim.

Judge James Kirsch in a separate opinion concurring in result agreed that Ingalls didn’t show whether any negligence on the part of Flatow and the firm was a proximate cause of his alleged damages. But the judge took a “more expansive view of the professional obligations” Flatow and the firm owed to Ingalls.

To him, the correct interpretation of the contract was that although Flatow and the firm limited their representation to Ingalls’ defamation claim, they didn’t limit their representation of that claim.

“To the contrary, they agreed to represent Ingalls on the defamation claim to ‘the end of trial.’ While my colleagues say that an attorney cannot be negligent for failing to do what there was no duty to do, I believe that the Flatow Defendants had the express duty to represent Ingalls on his defamation claim and to take all steps required by the applicable standard of care regarding the summary judgment proceedings and, thereafter, through to the end of trial,” he wrote.
 

 

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  1. Im very happy for you, getting ready to go down that dirt road myself, and im praying for the same outcome, because it IS sometimes in the childs best interest to have visitation with grandparents. Thanks for sharing, needed to hear some positive posts for once.

  2. Been there 4 months with 1 paycheck what can i do

  3. our hoa has not communicated any thing that takes place in their "executive meetings" not executive session. They make decisions in these meetings, do not have an agenda, do not notify association memebers and do not keep general meetings minutes. They do not communicate info of any kind to the member, except annual meeting, nobody attends or votes because they think the board is self serving. They keep a deposit fee from club house rental for inspection after someone uses it, there is no inspection I know becausee I rented it, they did not disclose to members that board memebers would be keeping this money, I know it is only 10 dollars but still it is not their money, they hire from within the board for paid positions, no advertising and no request for bids from anyone else, I atteended last annual meeting, went into executive session to elect officers in that session the president brought up the motion to give the secretary a raise of course they all agreed they hired her in, then the minutes stated that a diffeerent board member motioned to give this raise. This board is very clickish and has done things anyway they pleased for over 5 years, what recourse to members have to make changes in the boards conduct

  4. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  5. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

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