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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. Bob Leonard killed two people named Jennifer and Dion Longworth. There were no Smiths involved.

  2. Being on this journey from the beginning has convinced me the justice system really doesn't care about the welfare of the child. The trial court judge knew the child belonged with the mother. The father having total disregard for the rules of the court. Not only did this cost the mother and child valuable time together but thousands in legal fees. When the child was with the father the mother paid her child support. When the child was finally with the right parent somehow the father got away without having to pay one penny of child support. He had to be in control. Since he withheld all information regarding the child's welfare he put her in harms way. Mother took the child to the doctor when she got sick and was totally embarrassed she knew nothing regarding the medical information especially the allergies, The mother texted the father (from the doctors office) and he replied call his attorney. To me this doesn't seem like a concerned father. Seeing the child upset when she had to go back to the father. What upset me the most was finding out the child sleeps with him. Sometimes in the nude. Maybe I don't understand all the rules of the law but I thought this was also morally wrong. A concerned parent would allow the child to finish the school year. Say goodbye to her friends. It saddens me to know the child will not have contact with the sisters, aunts, uncles and the 87 year old grandfather. He didn't allow it before. Only the mother is allowed to talk to the child. I don't think now will be any different. I hope the decision the courts made would've been the same one if this was a member of their family. Someday this child will end up in therapy if allowed to remain with the father.

  3. Ok attorney Straw ... if that be a good idea ... And I am not saying it is ... but if it were ... would that be ripe prior to her suffering an embarrassing remand from the Seventh? Seems more than a tad premature here soldier. One putting on the armor should not boast liked one taking it off.

  4. The judge thinks that she is so cute to deny jurisdiction, but without jurisdiction, she loses her immunity. She did not give me any due process hearing or any discovery, like the Middlesex case provided for that lawyer. Because she has refused to protect me and she has no immunity because she rejected jurisdiction, I am now suing her in her district.

  5. Sam Bradbury was never a resident of Lafayette he lived in rural Tippecanoe County, Thats an error.

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