Legal Malpractice Claims In Pennsylvania

Legal Malpractice Claims In Pennsylvania by Clifford A. Rieders, Esquire Rieders, Travis, Humphrey, Harris, Waters & Waffenschmidt 161 West Third St. Williamsport, PA. 17701 P: 570-323-8711 F: 570-567-1025 crieders@riederstravis,com www.riederstravis.com Copyright 2009 Clifford A. Rieders

Table of Contents 1 Introduction... 1 2 Prima facie case... 3 2.1 Attorney - Client Relationship... 4 2.2 Negligence the Failure to Exercise Reasonable Degree of Knowledge, Skill & Care 5 2.3 Causation... 9 3 Evidentiary Matters... 11 4 Other Claims Against Attorneys... 12 5 Other Rights Regarding Attorneys... 17 i

Table of Authorities Cases Aiken Indus. v. Estate of Wilson, 383 A.2d 808 (1978)... 10 Atkinson v. Haug, 622 A.2d 983, 986 (Pa.Super. 1993)... 4 Bailey v. Tucker, 621 A.2d 108, 115 (Pa. 1993)... 1, 4, 12 Banks v. Jerome Taylor & Assoc s, 700 A.2d 1329, 1332 (Pa. Super. 1997)... 6 Bannar v. Miller, 701 A.2d 242, 247 (Pa.Super. 1997)... 14 Barcola v. Hourigan, Kluger & Quinn P.C., 82 Pa. D. & C.4th 394, 406 (Lackawanna Co. 2006)... 9, 10 Beyers v. Richmond, 937 A.2d 1082 (Pa. 2007)... 16, 17 Brubacher Excavating Inc. v. W.C.A.B. (Bridges), 575 Pa. 168, 174 n.2, 835 A.2d 1273, 1277 n.2 (2003)... 9 Capozzi v. Latsha & Capozzi, 797 A.2d 314 (Pa. Super. 2002)... 17 Chambers v. Montgomery, 192 A.2d 355 (1963)... 11 Collas v. Garnick, 624 A.2d 117, 120, appeal denied, 636 A.2d 631 (1993)... 4, 5, 6, 7 Commonwealth v. Cole, 709 A.2d 994, 997 (Pa.Commw.1998), appeal denied, 736 A.2d 606 (1999)... 17 Composition Roofers Local 30/30B v. Katz, 581 A.2d 607, 609-10 (1990)... 4 Cost v. Cost, 677 A.2d 1250, 1254-1255 (Pa. Super. 1996)... 4 D Allessandro v. Wassel, 587 A.2d 724, 276 (1991)... 3 Daniels v. Baritz, 2003 WL 21027238 (E.D.Pa.2003)... 17 ei bon ee baya ghananee v. Black, 504 A.2d 281, 284 (1986)... 4 Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984)... 11 Fiorentino v. Rapoport, 693 A.2d 208, 219(Pa. Super. 1997)... passim Francis J. Bernhardt, III, P.C. v. Needleman 705 A.2d 875, 879 (Pa. Super.1997)... 8 Gans v. Mundy, 762 F.2d 338, 340 (3d Cir. 1985)... 11 Garcia v. Community Legal Servs. Corp., 524 A.2d 980, 982 (1987)... 1 Glenbrook Leasing Co. v. Beausang, 839 A.2d 437, 442 (Pa. Super. 2003)... 2 Gorski... 12 Gorski v. Smith, 812 A.2d 683 (Pa. Super. 2002)... 1, 11, 12 Gregg v. Lindsay, 649 A.2d 935, 937 n. 1 (Pa.Super.1994)... 4 Guy v. Liederbach, 459 A.2d 744, 748 (1983)... 1, 4, 16 Hess v. Fox Rothschild, LLP, 925 A.2d 798, 806 (Pa.Super. 2007)... 4, 16 Hilfirty v. Shipman, 91 F.3d 573, 579 (3d Cir.1996)... 14 Huber v. Taylor, 469 F.3d 67, 82 (3 rd Cir. 2006)... 13 Jones v. Wilt, 871 A.2d 210 (Pa. Super. 2005)... 4, 10 Kenis v. Perini Corp., 682 A.2d 845 at 849 (Pa. Super. 1996)... 17 Kitsukie v. Corbman, 714 A.2d 1027 (Pa. 1998)... 9 Kohl v. PNC Bank Nat. Ass'n, 912 A.2d 237 (Pa. 2006)... 15, 16 Koval v. Melnick, 83 Pa. D. & C.4th 390, 395 (Phila. Co. 2007)... 9 Mariscotti v. Tinari, 485 A.2d 56 (1984)... 10 Maritrans v. Pepper, Hamilton & Scheetz, 602 A.2d 1277 (1992) at 1283... 13 McGee v. Feege, 535 A.2d 1020 (1987)... 14 McMahon v. Shea, 547 Pa. 124, 688 A.2d 1179 (1997)... 4, 5 ii

McPeake v. William T. Cannon, Esquire, P.C., 381 Pa.Super. 227, 232, 553 A.2d 439, 441 (1989)... 4 Merkle v. Upper Dublin School Dist., 211 F.3d 782, 791 (3d Cir. 2000)... 14 Minnich v. Yost, 817 A.2d 538, 543 (Pa. Super. 2003)... 16 Muhammad v. Strassburger, et. al., 587 A.2d 1346 (Pa. 1991), cert. denied, 502 U.S. 867 (1991)... 5, 6 Mumma v. Boswell, Tintner, Piccola & Wickersham, 937 A.2d 459, 465(Pa. Super. 2007)... 3 Nienstedt v. Wetzel, 651 P.2d 876, 33 A.L.R.4th 635 (App.1982)... 8 Parkinson v. Kitteridge, Donley, Elson, Fullem & Embick, LLP 2006 WL 2008922, at 2 (Phila. Co. 2006)... 4, 5, 11 Pashak v. Barish, 450 A.2d 67, 69 (1982) (quoting R. Mallen and V. Levitt, supra, 302, at 353-54 (2d ed. 1981))... 10 Pompei v. Williams, 731 A.2d 133 (Pa. Super. 1999)... 7 Poole v. W.C.A.B. (Warehouse Club Inc.), 570 Pa. 495, 499-500, 810 A.2d 1182, 1184 (2002)... 9 Raker v. G.C. Murphy Co., 58 A.2d 18 (1948)... 15 Rizzo v. Haines, 555 A.2d 58, 68 (Pa. 1989)... passim Robbins & Seventko v. Geisenberger, 674 A.2d 244, 246 (1996)... 1 Rosen v. American Bank of Rolla, 627 A.2d 190, 192 (1993)... 13, 14 Rubin Quinn Moss Heaney & Patterson, P.C. v. Kennel, 832 F.Supp. 922, 931-32 (E.D.Pa.1993)... 8 Salamoni v. Karoly, 74 Pa. D. & C.4th 378, 386(Lehigh Co. 2005)... 3 Sheinkopf v. Stone, 927 F.2d 1259 (1st Cir.1991)... 4 Shiner v. Moriarty, 706 A.2d 1228, 1236 (Pa. Super. 1998)... passim Slaughter v. Rushing, 683 A.2d 1234 (Pa. Super. 1996)... 8 Stone Crushed Partnership v. Kassab Archbold Jackson & O'Brien, 908 A.2d 875(Pa. 2006)... 4, 15 Storm v. Golden, 538 A.2d 61 (1988)... 11 Wachovia Bank, N.A. v. Ferretti, 935 A.2d 565, 570 (Pa.Super. 2007)... 1, 3, 12 Wassall v. DeCaro, 91 F.3d 443 (3d Cir. 1996)... 6 Werner v. Plater-Zyberk, 799 A.2d 776 (Pa.Super. 2002)... 15 Zampana-Barry v. Donaghue, 921 A.2d 500 (Pa. Super. 2007)... 2, 3 Statutes 323 of the Restatement (Second) of Torts... 11 42 Pa. R.C.P. No. 1042.3(b)(1)... 4 42 Pa.C.S. 5524(3), 5525... 1 42 Pa.C.S.A. 8351... 17 42 Pa.C.S.A. 8351-8355... 17 Myers v. Robert Lewis Seigle, P.C., 751 A.2d 1182 (Pa. Super. 2000)... 11 Restatement (Second) of Contracts 302 (1979)... 5, 18 RESTATEMENT (SECOND) OF TORTS 682)... 16 Restatement (Second) of Torts 908(2) (1977)... 12 Unfair Trade Practices and Consumer Protections Law (UTPCPL), 73 P.S. 201-1, et. seq.... 19 iii

Legal Malpractice Claims in Pennsylvania Introduction Various claims can be brought against an attorney for harm to a client. The various claims include breach of contract, breach of fiduciary duty to the client and negligence. [A]n action for legal malpractice may be brought in either contract or tort. Wachovia Bank, N.A. v. Ferretti, 935 A.2d 565, 570 (Pa.Super. 2007), citing, Garcia v. Community Legal Servs. Corp., 524 A.2d 980, 982 (1987); See also, Gorski v. Smith, 812 A.2d 683 (Pa. Super. 2002) (discussing the different types of claims against attorneys.); Guy v. Liederbach, 459 A.2d 744, 748 (1983)(trespass or assumpsit theory require proof of different elements.) The first aspect of representing a legal malpractice claim involves the initial contact with the potential client. At that point in time, an analysis must be done as to what potential claims exist and what deadlines, especially statute of limitations, apply. Next one must assess the merits of the case with the information available. Ideally one would have all of the pertinent court documents, if any, and a copy of the client s file as held by the attorney against whom the legal malpractice is alleged. Also, for many practitioners and their clients, it is also important to determine the ability to collect any damages awarded against the attorney. Thus, one must determine if the attorney has malpractice insurance and the status of the attorney s business liability, such as whether the law firm, business, association is liable and whether the attorney vulnerable personally. Many meritorious malpractice claims may be un-collectable and thus the advice to the client may simply be to report the malpractice to the disciplinary board. 1.1 Statute of Limitations A critical preliminary matter is ascertaining the deadline for the legal malpractice claims under the correct and applicable statute of limitations. As a general matter, the two-year statute of limitations applies to legal malpractice claims based upon negligence and the four-year period that governs contract disputes applies to legal malpractice claims based upon breach of contract. Wachovia Bank, N.A. v. Ferretti, 935 A.2d 565, 571 (Pa. Super. 2007); Fiorentino v. Rapoport, 693 A.2d 208, 219(Pa. Super. 1997) 42 Pa.C.S. 5524(3), 5525. The next question is when the statute of limitations begins to run. In Pennsylvania, the occurrence rule is used to determine when the statute of limitations begins to run. (emphasis added) Fiorentino v. Rapoport, 693 A.2d 208, 219 (Pa. Super.1997), citing, Robbins & Seventko v. Geisenberger, 674 A.2d 244, 246 (1996). There appears to be inconsistency in what triggers the running of the statute of limitations in legal malpractice claims. In Fiorentiono, for example, the Superior Court states that: [u]nder the Pennsylvania occurrence rule, the statutory period commences when the harm is suffered, or if appropriate, at the time an alleged malpractice is discovered. Fiorentino v. Rapoport, 693 A.2d 208, at 219 (Pa.Super.1997), citing, Bailey v. Tucker, 621 A.2d 108, 115 (Pa. 1993). In Fiorentiono, supra, the statute of limitations on the negligent drafting 1

of an agreement that involved the payment of money did not begin to run until a party defaulted on the agreement, even after knowledge of the negligence, because the right to sue does not vest until harm is suffered. [T]he mere breach of a professional duty that causes only the threat of unrealized future harm does not suffice to create a cause of action for negligence. Fiorentino, supra, citing, Rizzo v. Haines, 555 A.2d 58, 68 (Pa. 1989). Obviously, this could have significant ramifications in the area of malpractice for transactional attorney negligence. By contrast, in Wachovia Bank, the Superior Court states that the trigger for the accrual of a legal malpractice action, is not the realization of actual loss, but the occurrence of a breach of duty. Wachovia, 935 A.2d at 572. The court states: the statue of limitations in a legal malpractice claim begins to run when the attorney breaches his or her duty, and is tolled only when the client, despite the exercise of due diligence, discovers the injury or its cause. Id. at 573. The Superior Court does not discuss Fiorentino, supra, in its decision but rejects the actual loss argument that the Fiorentino court based its decision upon, and cites numerous cases supporting the rejection of this argument. Furthermore, in Wachovia, the Superior Court explains that Rizzo, supra (relied upon by Fiorentino) is based upon whether damages are remote or speculative and that speculative damages arise only when the question of the existence of damages as opposed to the amount of damages. Thus, the statute of limitations in the legal malpractice claim in Wachovia was not tolled for the pendency or potential pendency of an appeal in the underlying case. Wachovia, 935 A.2d at 574. The Superior Court has rejected the continuing representation tolling argument in legal malpractice cases. Glenbrook Leasing Co. v. Beausang, 839 A.2d 437, 442 (Pa. Super. 2003). The Court refused to toll the statute of limitations until the date on which the client terminated his attorney. Glenbrook involved a real estate matter in which the client s failed to file a writ of summons within two years of discovering that there was a problem with the deed. The question of when the statute begins to run is decided by the court when there is no factual dispute and by a jury where there is a factual dispute. Fiorentino, supra, at 219. In Fiorentino, the court noted that the statue of limitations could not begin to run until after the client suffered the harm, and thus, as a matter of law, the statute did not begin to run at the time of the negligent drafting of the agreement. However, there was a factual issue as to when the client was made aware of the harm and that required a jury determination on that issue. 1.2 Venue A quality - quantity analysis applies to determine whether a claim against a law firm or partnership is brought in an appropriate venue. Zampana-Barry v. Donaghue, 921 A.2d 500 (Pa. Super. 2007). Providing legal services to clients in a county satisfies the quality aspect of the test, whereas incidental acts like advertising, hiring, selling insurance, trainings, or referrals do not. Id. at 506. The practice of law in a county satisfies the quality test for a law firm or law partnership. Id. Furthermore, a trial court would not be reversed in deciding that the quantity test is met when a law firm or 2

partnership has consistently generated approximately three to five percent of its gross business revenue from cases within the county. Id. The quantity analysis turns on whether the business is conducted regularly as opposed to principally. Id. In Zampana-Barry, Judge Klein filed a concurring opinion emphasizing that the quantity analysis is inconsistent and without specific guidelines, and for this reason a trial court is unlikely to be reversed on the quantity analysis. Id. at 507 (concurring opinion.). The concurring opinion points out: [I]n reviewing the case law, there are some cases that say 1-2% of contacts in the particular county is enough to meet the quantity test, while others say 3% is not enough. Id Thus, venue may be established under 42 Pa.R.C.P. 2130 (partnerships) or 2179(a)(2) (corporations) when a law firm or partnership regularly represents clients in a county, even though the it generates only a small percentage of the annual revenue over a period of ten years. Zampana-Barry, 921 A.2d 500, 502, 506-509. It should be noted that Zampana-Barry case did not involve a motion to transfer based upon forum non conveniens under 42 Pa.R.C.P. 1006(d)(1). 1.3 All Claims Related to the Attorney Malpractice Must Be Joined The Pennsylvania Rule of Civil Procedure No. 1020(d) requires that all claims related to a legal malpractice claim must be joined in one action when they arise out of the same transaction or occurrence against the same person to avoid waivers of claims related to an attorney s malpractice. Wachovia Bank, N.A. v. Ferretti, 935 A.2d 565, 571 (Pa. Super. 2007), citing, D Allessandro v. Wassel, 587 A.2d 724, 276 (1991)(There was no waiver because Rule 1020 requires joinder of actions in the nature of trespass or assumpsit arising from same occurrence but does not apply to equity claims.); 42 Pa. R.C. P. 1020(d). 1.4 Certificate of merit The Pennsylvania Rule of Civil Procedure No. 1042.3 requires that a certificate of merit be filed with the complaint or within sixty days after the filing of the complaint, unless one of the two limited exceptions applies. 42 Pa. R.C.P. No. 1042.3. The 60 day limit applies even when the entry of judgment was technically deficient under Civil Rule 236. Mumma v. Boswell, Tintner, Piccola & Wickersham, 937 A.2d 459, 465(Pa. Super. 2007) 42 Pa. R.C.P. No. 1042.3(b)(1) requires that [a] separate certificate of merit shall be filed as to each licensed professional against whom a claim is asserted. A Common pleas court has held that a single certificate of merit is sufficient against jointly liable defendants in an attorney malpractice case where the certificate of merit names them both. Salamoni v. Karoly, 74 Pa. D. & C.4th 378, 386(Lehigh Co. 2005) Prima facie case There are three elements required to make out a prima facie case for legal malpractice: (1) there must be an attorney-client relationships or some other basis for establishing a duty by the attorney to the plaintiff (2) the failure of the attorney to exercise ordinary skill and knowledge; and (3) that the attorney's failure to exercise the requisite level of skill and knowledge was the proximate cause of damage to the plaintiff. Parkinson v. Kitteridge, Donley, Elson, Fullem & Embick, LLP 2006 WL 3

2008922, at 2 (Phila. Co. 2006), citing, Bailey v. Tucker, 533 Pa. 237, 246, 621 A.2d 108, 112 (1993); Accord McMahon v. Shea, 547 Pa. 124, 688 A.2d 1179 (1997). These elements must be proven by a preponderance of the evidence. McPeake v. William T. Cannon, Esquire, P.C., 381 Pa.Super. 227, 232, 553 A.2d 439, 441 (1989). An attorney will be deemed negligent if he or she fails to possess and exercise that degree of knowledge, skill and care which would normally be exercised by members of the profession under the same or similar circumstances. ). Fiorentino v. Rapoport, 693 A.2d 208, 212-213(Pa. Super. 1997) citing, Collas v. Garnick, 624 A.2d 117, 120, appeal denied, 636 A.2d 631 (1993); Composition Roofers Local 30/30B v. Katz, 581 A.2d 607, 609-10 (1990); ei bon ee baya ghananee v. Black, 504 A.2d 281, 284 (1986). Attorney - Client Relationship A legal malpractice claim against an attorney requires that the plaintiff establish an attorney-client or analogous relationship with the attorney. Hess v. Fox Rothschild, LLP, 925 A.2d 798, 806 (Pa.Super. 2007), citing, Guy v. Liederbach,, 459 A.2d 744, 746, 750 (1983) ( reaffirming the requirement that a plaintiff must show an attorneyclient or analogous professional relationship or a specific undertaking in order to maintain an action in negligence for legal malpractice ); Hess, 925 A.2d at 806, citing, Cardenas, supra at 342 (citing Guy, supra); and Gregg v. Lindsay, 649 A.2d 935, 937 n. 1 (Pa.Super.1994) ( holding that because the litigants did not have an attorney-client relationship, the plaintiff could not recover for legal malpractice based on negligence ). The requirement that an attorney-client relationship exist as a prerequisite to a legal malpractice claim extends to and includes claims based upon the drafting, execution and/or administration of a will. Hess, 925 A.2d at 806. An attorney-client relationship can be implied. The following criteria must exist to establish an implied attorney-client relationship: 1) the purported client sought advice or assistance from the attorney; 2) the advice sought was within the attorney's professional competence; 3) the attorney expressly or impliedly agreed to render such assistance; and 4) it is reasonable for the putative client to believe the attorney was representing him. Atkinson v. Haug, 622 A.2d 983, 986 (Pa.Super. 1993) (no attorney client relationship existed); citing, Sheinkopf v. Stone, 927 F.2d 1259 (1st Cir.1991). A subjective belief in the existence of an attorney client relationship is insufficient to establish one. Atkinson, 622 A.2d at 987. See also, Cost v. Cost, 677 A.2d 1250, 1254-1255 (Pa. Super. 1996). Even without an attorney client relationship, a narrow class of named beneficiary to a will may assert a cause of action as a third party beneficiary for breach of contract against the attorney who drafted a will pursuant to the principles of the Restatement (Second) of Contracts 302 (1979). Hess, 925 A.2d at 806; Jones v. Wilt, 871 A.2d 210 (Pa. Super. 2005), both citing, Guy v. Liederbach, 459 A.2d 744, 751-52 (1983) (plurality opinion). In Jones v. Wilt, 871 A.2d 210 (Pa. Super. 2005) the court considered but did not decide the issue of whether an executor of a will could maintain a legal malpractice action against the attorney who drafted the will. 4

Negligence the Failure to Exercise Reasonable Degree of Knowledge, Skill & Care An attorney will be deemed negligent if he or she fails to possess and exercise that degree of knowledge, skill and care which would normally be exercised by members of the profession under the same or similar circumstances. Parkinson v. Kitteridge, Donley, Elson, Fullem & Embick, LLP 2006 WL 2008922 (Phila. Co. 2006), citing, Collas v. Garnick, 425 Pa.Super. 8, 13, 624 A.2d 117, 120, appeal denied, 535 Pa. 672, 636 A.2d 631 (1993) 2.2.1 Negligent Settlement Negotiations The Supreme Court has noted that the necessity for an attorney's use of ordinary skill and knowledge extends to the conduct of settlement negotiations. Rizzo v. Haines, 555 A.2d 58, 65 (Pa. 1989). An attorney commits malpractice by failing communicate all settlement offers to [their] clients in personal injury cases and by failing to investigate offers that were proposed[.] Id., See also Code of Professional Responsibility EC 7-7 (1974) (noting that it is exclusively for the client to decide whether to accept a settlement offer). The Supreme Court indicated that ordinary skill and knowledge requires an attorney to conduct settlement negotiations in a manner that elicits his opponent's maximum settlement authority in the form of an offer. Ordinary skill and knowledge further dictates that the attorney take reasonable steps to investigate the inquiries or offers that an opponent extends. Rizzo, 555 A.2d at 66. Generally, dissatisfaction with a settlement agreement does not constitute legal malpractice. It is well settled in Pennsylvania that a client disgruntled with the pecuniary amount of a settlement agreement does not have recourse through a malpractice action. Muhammad v. Strassburger, et. al., 587 A.2d 1346 (Pa. 1991), cert. denied, 502 U.S. 867 (1991). In Muhammad, the Court decided that there was no legal malpractice where the client sued his medical malpractice attorney because he was dissatisfied with the amount of the settlement. The fact that a legal document settles litigation does not excuse the attorney from having to exercise the requisite level of skill and knowledge standard in the legal profession when advising that client about the consequences of entering into a settlement agreement. McMahon v. Shea, 688 A.2d 1179 (Pa. 1997). McMahon limits Muhammad. In McMahon, a client was permitted to sue his lawyer for failing to inform him that the attorney had not merged an alimony agreement with a final divorce decree and concealing the true reason for the dismissal of the alimony termination petition. In McMahon, the Pennsylvania Supreme Court decided that an attorney can be sued for negligence for failing to advise a client about the possible consequences of entering into a settlement agreement. Subsequently, the Superior Court synthesized the cases regarding settlement agreements and identified the following guide. The Muhammad rule precludes a legal malpractice claim when the client is merely second guessing the decision to settle. By contrast, a legal malpractice claim can be maintained a where a settlement agreement is legally deficient or its import is not fully explained to the 5

client. Banks v. Jerome Taylor & Assoc s, 700 A.2d 1329, 1332 (Pa. Super. 1997). While a client s dissatisfaction with a settlement agreement generally does not constitute legal malpractice, dismissal of a legal malpractice action may not be appropriate where egregious attorney misconduct forces settlement of the underlying claim and would warrant disciplinary type sanction from the Court. The Third Circuit refused to dismiss a malpractice claim when the egregious behavior of an attorney forces a plaintiff to agree to the dismissal of the underlying claim for want of prosecution. Wassall v. DeCaro, 91 F.3d 443 (3d Cir. 1996). The Third Circuit identified a distinction between cases where the plaintiff agrees to settle a case merely to end the incompetent representation and litigation as opposed to settling a case for the actual settlement terms. Wassall, 91 F.3d at 447. The Third Circuit asserted that the dismissal of a legal malpractice claim based solely upon the fact that plaintiff agreed to dismissal of the underlying claim would not only discourage settlements but would reward indolence and incompetence. Wassall, 91 F.3d at 448. The Court labeled the representation as shabby. In the underlying claim, the lawyer failed to negotiate and complete a settlement, frustrated efforts to amicable resolution, wasted judicial resources by deliberate and prejudicial delay. The Third Circuit explained the Muhammad test in the context of egregious attorney misconduct as follows. Where the attorney s conduct forces a client to accept the dismissal of the case allowing a subsequent malpractice action serves as a systematic deterrent for this behavior and thus promotes the policies articulated in Muhammad. An attorney who has neglected his role as steward, hopelessly delaying, and perhaps prohibiting, the system from properly resolving his client s case, should not be able to seek safe haven in a dismissal that resulted because the client could not risk allowing the attorney further to neglect his role. Wassall, 91 F.3d at 449. 2.2.2 Transactional Negligence Drafting Agreements Attorney negligence can arise from the failure to exercise ordinary skill and knowledge in handling a transaction. For example, legal representation is negligent if the attorney fails to provide adequate advice regarding agreements and fails to insert sufficient protections in those agreements or discuss the availability of such protections. Fiorentino v. Rapoport, 693 A.2d 208, 213 (Pa.Super. 1997). The Pennsylvania Superior Court identified some of the obligations required by an attorney in transactional matters. In particularly, a lawyer must perform sufficient research to advise the client in a manner that allows the client to make an informed decision. Fiorentino, supra, at 213, citing, Collas v. Garnick, 425 Pa.Super. at 13, 624 A.2d at 120. The lawyer must scrutinize the contract and advise the client about the full import of the instrument and any possible consequences which might arise therefrom. 6

Fiorentino, supra, at 213, citing, Collas, supra, 425 Pa.Super. at 13, 624 A.2d at 120. (additional citations and references omitted.) The expert testimony in Fiorentino, supra, provides information about what the Superior Court considers to be required of attorneys in transactional matters. The Superior Court outlined that the expert testimony indicates that: common practice among Pennsylvania attorneys, and indeed among attorneys throughout the United States, is to consult form books when drafting an agreement of sale for a business. Such hornbooks contain exemplary contract provisions that protect the seller of a business enterprise in a variety of ways. Common seller protection clauses require corporate stock to be transferred through a third-party escrow arrangement, prohibit the transfer of corporate assets to other entities or persons for other than full and fair market value, and prevent the buyer from setting up businesses that compete with the enterprise providing the payment source for the seller. It is also usual to require the buyer and his or her spouse to co-sign as personal guarantors of payments to the seller in the event the business enterprise loses profitability under the direction of the buyer. Fiorentino v. Rapoport, 693 A.2d 208, 218 (Pa. Super. 1997) Legal malpractice claims involving transactional negligence survive nonsuit or summary judgment when the harm to the client is sufficiently linked to the negligence. In Fiorentino, supra, the attorney s negligence could be lined to the harm to the client where the attorney s negligence potentially resulted in the the transformation of a reasonably funded corporate liability into an uncollectible debt. Fiorentino, supra, at 215, 218. A nonsuit is inappropriate when the harm to the client can be linked to this negligence and failure. In Fiorentino, the harm to the client, that he could not be paid, was sufficiently linked to the attorney s negligent failure to insert protections to the client in the agreement or discuss about what would happened or the conflicts involved. Specifically the attorney failed to provide protections to his client in a stock purchase agreement and failure to advise the client about what would happen in the event that a default in payment occurred, nor was there discussion relating to potential conflicts of interest or the pursuit of independent counsel for each party to the agreement. Furthermore, the defendants never advised the parties about the possibilities and virtues of establishing an independent escrow arrangement. Fiorentino v. Rapoport, 693 A.2d 208, 210-211. The case within a case requirement does not shield attorneys from malpractice for negligent advice even when the client is unsuccessful in the underlying claim. Pompei v. Williams, 731 A.2d 133 (Pa. Super. 1999). In a real estate transaction, where the attorney represented both the buyer and the seller, a finding that the client s had breached the contract was not identical to the issue of the allegations of wrong or bad advice by their attorney or other negligence of the attorney. Id. As a result, the Superior court decided that collateral estoppel 7

does not preclude a malpractice action based upon an unfavorable result in the underlying litigation. 2.2.3 Negligent Representation in Criminal Cases A claim for legal malpractice based upon negligent representation in a criminal matter requires that the client be innocent of the crimes and all lesser included offenses, that the representation was the cause in fact of the wrongful conviction, that the client pursued all available post trial relief and finally that the client obtained relief predicated upon the attorney s error. Slaughter v. Rushing, 683 A.2d 1234 (Pa. Super. 1996) 2.2.4 Violations of the Rules of Professional Responsibility The Professional Rules of Responsibility explicitly state that a violation of the rule does not give rise to a cause of action against a lawyer nor should it create any presumption that the lawyer has breached a legal duty to the client. See Pennsylvania Rules of Professional Conduct, Scope [19]. Nonetheless, Pennsylvania Courts have heavily relied upon the Rules of Professional Responsibility as instructive in actions against lawyers. Relying upon the professional rules, the Superior Court has held that a lawyer can be liable for conversion of settlement proceeds for failing to notify the attorney who referred the case to that lawyer about the settlement and then either forward the referring attorney his or her percentage or retain that amount in a separate account. Francis J. Bernhardt, III, P.C. v. Needleman 705 A.2d 875, 879 (Pa. Super.1997), See Pennsylvania Rules of Professional Conduct, Rule 1.15 (explaining that a lawyer should promptly notify other individuals of receipt of funds in which that person has an interest and the lawyer should keep those funds separate). Bernhardt, III, P.C., 705 A.2d at 878. This extends the already established rule that an attorney, and the attorney s law firm, are liable to a client in conversion for failing to properly dispose of client funds. Bernhardt, III, P.C., 705 A.2d at 879, citing, Rubin Quinn Moss Heaney & Patterson, P.C. v. Kennel, 832 F.Supp. 922, 931-32 (E.D.Pa.1993). In Needleman, the appellate court directed that punitive damages be awarded on the conversion claim because it considered the litigation to have been intended for harassment and delay. Bernhardt, III, P.C., 705 A.2d at 879. Similarly, the Superior Court has relied upon the Pennsylvania Rules of Professional Responsibility for instruction in abuse of process claims. The Rules instruct that an attorney may not indulge his client s intent to use the legal system to extract revenge, harrass and/or cause malicious injury to another person. Shiner v. Moriarty, 706 A.2d 1228, 1236 (Pa. Super. 1998), citing, Pa. Rule of Professional Conduct 3.1 (Comment) (Lawyers may not proceed in a meritless action where the client desires to have the action taken primarily for the purpose of harassing or maliciously injuring a person... ); see also Nienstedt v. Wetzel, 651 P.2d 876, 33 A.L.R.4th 635 (App.1982) (abuse of process claim can be based on motive of harassment). In Shiner, supra, the Superior Court upheld a 8

million dollar punitive damage award against an attorney and his firm where the jury found that the attorney..indulged his client's desire to wield every available legal mechanism without hope of success, simply to harass and cause emotional and financial harm. Shiner v. Moriarty, 706 A.2d 1228, 1241 (Pa. Super.1998) 2.2.5 Negligently Entering Into Stipulations of Law Erroneously and negligently stipulating to the applicability of a law is likely to constitute malpractice. In Koval v. Melnick, 83 Pa. D. & C.4th 390, 395 (Phila. Co. 2007) the Common Pleas court rejected claims of attorney malpractice where the attorney stipulated to the applicability of a statute. The Court reasoned that the statute would have been determined to apply to the case and thus the attorney was correct in entering into the stipulation. Had the court determined that the stipulation was erroneous, however, the court would probably have then had to determine whether it was negligent to stipulate to the applicability of the law. Next, the court would likely assess whether the damages alleged by the client could be linked to the attorney s negligence. Such cases could have a chilling effect on such stipulations: better to just let the judge decide the applicability of the law. Thus, perhaps public policy considerations would be considered, either overtly or as a backdrop, when legal malpractice claims assert that the attorney erroneously and negligently entered into stipulations. Causation A legal malpractice claim against an attorney requires that the plaintiff establish proof of actual loss and harm that is not merely speculative or nominal. Kituskie, 552 Pa. at 281, 714 A.2d at 1030; Rizzo v. Haines, 520 Pa. 484, 504-505, 555 A.2d 58, 68 (1989); Nelson, supra. Proof of actual loss frequently requires a showing that the underlying claim in which the negligence occurred would have succeeded but for the negligence of the attorney in pursuing the underlying claim. Barcola v. Hourigan, Kluger & Quinn P.C., 82 Pa. D. & C.4th 394, 406 (Lackawanna Co. 2006), citing, Poole v. W.C.A.B. (Warehouse Club Inc.), 570 Pa. 495, 499-500, 810 A.2d 1182, 1184 (2002); Brubacher Excavating Inc. v. W.C.A.B. (Bridges), 575 Pa. 168, 174 n.2, 835 A.2d 1273, 1277 n.2 (2003); Nelson, supra. In the context of a legal malpractice action, such proof of actual loss is often referred to as proving the case within the case. citing, Poole, supra, 570 Pa. at 500, 810 A.2d at 1184. The non-collectability of the underlying claim may provide evidence that the attorney s negligence was not the cause of the client s harm, but instead the uncolectability of the underlying claim was the ultimate cause of the loss. The Supreme Court of Pennsylvania has held that the collectibility of damages in the underlying action should be considered in legal malpractice actions. Kitsukie v. Corbman, 714 A.2d 1027 (Pa. 1998) The defendant/attorney should plead and prove the affirmative defense that the underlying case was not collectible by a preponderance of the evidence. Id. at 1032 A Common Pleas Court has rejected the argument that the attorney s admissions and assertions in the underlying case could be used against the attorney in the legal 9

malpractice case to establish the viability of the underlying action. Causation in legal malpractice actions is not established in legal malpractice actions through the pleadings filed and signed by an attorney. Barcola v. Hourigan, Kluger & Quinn P.C., 82 Pa. D. & C.4th 394, 406 (Lackawanna Co. 2006), See also, Hall, Turnabout is Fair Play In Malpractice Litigation, Defendant Lawyers Need not Make the Case Within the Case, 30 P.L.W. 193, 203 (2007). The increased risk of harm standard, applicable in many tort cases, does not apply to legal malpractice. Causation in legal malpractice actions is not established under an Increased risk of harm standard. 323 of the Restatement (Second) of Torts, Negligent Performance Of Undertaking to Render Services does not apply to legal malpractice actions because 323 Restatement expressly applies to physical harm and physical harm is not an element of a legal malpractice action. Myers v. Robert Lewis Seigle, P.C., 751 A.2d 1182 (Pa. Super. 2000). 2.4 Damages 2.4.1 General Damages A legal malpractice claim against an attorney requires that the plaintiff establish proof of actual loss and harm that is not merely speculative or nominal. Kituskie, 714 A.2d at 1030; Rizzo v. Haines, 555 A.2d 58, 68 (1989); Nelson, supra. Rizzo v. Haines, 555 A.2d 58(Pa.1989) held that clients were entitled to recover as damages difference between actual recovery and amount they would have recovered except for attorney's negligence. The test of whether damages are remote or speculative has nothing to do with the difficulty in calculating the amount, but deals with the more basic question of whether there are identifiable damages... Thus, damages are speculative only if the uncertainty concerns the fact of damages rather than the amount. Rizzo v. Haines, 555 A.2d at 68, citing, Pashak v. Barish, 450 A.2d 67, 69 (1982) (quoting R. Mallen and V. Levitt, supra, 302, at 353-54 (2d ed. 1981)). See also Mariscotti v. Tinari, 485 A.2d 56 (1984). A verdict may be based on a calculation of damages where there is a reasonable basis for the calculation. Aiken Indus. v. Estate of Wilson, 383 A.2d 808 (1978). There is a question whether an executor of an estate may bring a legal malpractice claim for harm alleged by a beneficiary because there is typically a lack of harm to the estate as a whole. Jones v. Wilt, 871 A.2d 210 (Pa. Super. 2005) ( held that accounting expert's opinion that attorney was negligent in not advising testator of the use of a trust was inadmissible extrinsic evidence because there was no evidence that the intent of the testator was tax avoidance and there was evidence that the testator was most interested in her sister as opposed to her husband receiving a bequest.) 2.4.2 PUNITIVE DAMAGES AGAINST ATTORNEYS Punitive damages against attorneys appear to arise where the Court would otherwise choose to sanction the attorney s misconduct. The Pennsylvania Supreme Court has affirmed a $150,000 punitive damages award against an attorney who negligently handled a personal injury case, abused his influence 10

and trust over his client and mishandled funds. Rizzo, 555 A.2d at 69. The Pennsylvania Supreme Court has adopted Section 908(2) of the Restatement (Second) of Torts regarding punitive damages. Thus, the negligence and misconduct of the attorney must be outrageous because of the defendant's evil motives or his reckless indifference to the rights of others. Id., citing, Restatement (Second) of Torts 908(2) (1977). See Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984); Chambers v. Montgomery, 192 A.2d 355 (1963). A court may award punitive damages only if the conduct was malicious, wanton, reckless, willful, or oppressive. Rizzo, 555 A.2d at 69, citing, Chambers, 192 A.2d at 358. The proper focus is on the act itself together with all the circumstances including the motive of the wrongdoer and the relations between the parties... Id. In addition, the actor's state of mind is relevant. The act or omission must be intentional, reckless, or malicious. Feld, 485 A.2d at 748. 3 Evidentiary Matters 3.1 Expert Testimony An expert is required in an attorney malpractice claim based upon breach of contract where those claims sound in negligence by alleging an attorney failed to exercise the appropriate standard of care. Parkinson v. Kitteridge, Donley, Elson, Fullem & Embick, LLP, 2006 WL 2008922, (Phila. Co. 2006), citing, See Storm v. Golden, 538 A.2d 61 (1988). In Parkinson, the Court required expert testimony on the issue of negligence by an attorney in failing to preserve his client s cause of action. Parkinson v. Kitteridge, Donley, Elson, Fullem & Embick, LLP, 2006 WL 2008922, (Phila. Co. 2006). Expert testimony is not required to establish that breach of the duty to investigate, and to inform one's client of, settlement offers. Rizzo, supra, 555 A.2d at 67. In Rizzo, expert testimony was not necessary where the attorney failed to investigate and inform his client about settlement offers. Rizzo, supra, held that expert testimony was not required to establish a breach of fiduciary duty from a gift from a client to an attorney that violates the professional rules of conduct. Rizzo, supra, 555 A.2d at 68. Legal malpractice defendants do not need to offer expert testimony supporting summary judgment on the issue of negligence when the plaintiff fails to offer such evidence. Gans v. Mundy, 762 F.2d 338, 340 (3d Cir. 1985). The plaintiff bears the burden of establishing negligence and once the defendants verify factual allegations rebutting negligence, the plaintiff must offer expert evidence to avoid summary judgment on behalf of the defendants. Gans, 762 F.2d at 343. 3.2 Contributory Negligence Attorney / legal malpractice defendants may raise a client s contributory negligence as an affirmative defense. Gorski v. Smith, 812 A.2d 683 (Pa. Super. 2002). Legal malpractice actions are governed by contributory negligence and not by the comparative negligence act because such claims do not involve bodily injury or property 11

damage. Id. at 702. (citations omitted.) In Gorski, the Superior Court indicated that an affirmative defense of contributory negligence is appropriate where the client withholds or misrepresents crucial information or disregards or violates advice or instructions of the attorney. Id. at 703. (citations omitted.) Essentially, the defense applies because the client failed to exercise the reasonable care necessary for his or her own protection. Id. On the other hand, a client is not required to anticipate his or her attorney s negligence and take steps to eliminate or minimize harm that may occur should the attorney have been negligent. Gorski, 812 A.2d 683. In Gorski, the client was not and could not have been contributorily negligent for relying upon the attorney s erroneous legal advice. Id. at 704. 4 Other Claims Against Attorneys It is likely that any and all claims arising out of the alleged malpractice must be asserted together in a single action to avoid waiver of the claim. Wachovia Bank, N.A. v. Ferretti, 935 A.2d 565, 571 (Pa.Super.2007) (Court states that both legal malpractice claim in tort and breach of contract claim must be brought together to avoid waiver. (citations omitted.) 4.1 Breach of Contract Claims Against Attorneys In addition to or as an alternative to a claim of malpractice against an attorney for negligence, a claim may be based upon a breach of contract, which is known at common law as an assumpsit claim. A breach of contract claim can arise from an attorney s failure to provide legal services in accordance with acceptable professional standards which is implied in a contract for legal services. Gorski v. Smith, 812 A.2d 683, 694 (Pa. Super. 2002) ( citing Bailey and noting that when an attorney enters into a contract to provide legal services, there automatically arises a contractual duty on the part of the attorney to render those legal services in a manner that comports with the profession at large ). [A]n assumpsit claim based on breach of an attorney-client agreement is a contract claim, and the attorney's liability must be assessed under the terms of the contract. Fiorentino v. Rapoport, 693 A.2d 208, 213 (Pa.Super. 1997), citing, Bailey v. Tucker, 621 A.2d at 115. A breach of contract claim arises because an attorney who agrees for a fee to represent a client is by implication agreeing to provide that client with professional services consistent with those expected of the profession at large. Wachovia Bank, N.A. v. Ferretti, 935 A.2d 565, 571(Pa. Super. 2007), citing Bailey, at 115. A contract between an attorney and client requires the attorney to provide the attorney s best efforts. A breach of contract claim can arise from the failure of the attorney to provide the attorney s best efforts and/or failure to provide professional services consistent with those expected of the profession at large. Fiorentino, supra, 693 A.2d at 213, citing, Bailey, supra, 621 A.2d at 115. 12

4.2 Breach of Fiduciary Duty Attorneys have a fiduciary relationship with their clients and owe them fiduciary duties. These cannot be taken lightly or dispensed with, even for the economy of class actions. Huber v. Taylor, 469 F.3d 67, 82 (3 rd Cir. 2006) (applying Texas law). As eloquently stated by Judge Cardozo in In the Matter of Rouss, [m]embership in the bar is a privilege burdened with conditions. Huber, 469 F.3d at 82, citing, Rouss, 116 N.E. 782 (1917). Pennsylvania law imposes on attorneys the status of fiduciaries vis a vis their clients; that is, attorneys are bound, at law, to perform their fiduciary duties properly. Fiorentino v. Rapoport, 693 A.2d 208 (Pa.Super.1997) at 213 (breach of fiduciary duty elements not detailed), citing, Maritrans v. Pepper, Hamilton & Scheetz, 602 A.2d 1277 (1992) at 1283. Pennsylvania Courts recognizes claims against attorneys for breach of fiduciary duties. See, Maritrans v. Pepper, Hamilton & Scheetz, 602 A.2d 1277 (1992) at 1283 (breach of fiduciary claim arising from a conflict of interest). Furthermore, Huber v. Taylor, 469 F.3d 67 (3 rd Cir. 2006) (applying Texas law) supports the likelihood that Pennsylvania law recognizes a breach of fiduciary duty claim arising from failing the failure to make adequate disclosures about conflict of interests resulting from fee agreements among attorneys in asbestos class action claims. The Third Circuit explains that attorneys owe their clients the duty of meaningful disclosures and not merely form disclosures. Huber, 469 F.3d at 82. It is elementary that all attorneys in a co-counsel relationship individually owe each and every client the duty of loyalty. Id. Even though local counsel may assume the disclosure duties, in essence, all counsel remain obligated to ensure that such disclosures have been made. Id., at 81-82. It is arguable that no actual harm is required to maintain a claim for disgorgement of legal fees collected in a class action matter for a breach of fiduciary duty. In Huber, supra, when deciding a choice of law question, the Third Circuit discusses breach of fiduciary duty and related claims under Pennsylvania law. Huber, 469 F.3d 67 (applying Texas law). The Third Circuit indicated that whether actual harm would be required in a disgorgement case was unsettled, but that Pennsylvania would arguably adopt the well-considered position of every jurisdiction that has considered the issue, which is to require harm only for damages, not for the equitable remedy of disgorgement. Huber, 469 F.3d at 77. 4.3 Claims Against Attorneys for Misusing the Legal System 4.3.1 Abuse of Process Claims Against Attorneys The tort of abuse of process' is defined as the use of legal process against another primarily to accomplish a purpose for which it is not designed. Shiner, supra, 706 A.2d at 1236, citing, Rosen v. American Bank of Rolla, 627 A.2d 190, 192 (1993) (quoting RESTATEMENT (SECOND) OF TORTS 682). The elements of an abuse of process claim are: (1) use of a legal process, 13

(2) primarily to accomplish a purpose for which the process was not designed; and (3) causing harm. Shiner, 706 A.2d at 1236, citing, Rosen, supra, 627 A.2d at 192. In some circumstances, the filing of any petition or legal document is sufficient to satisfy the element of use of a legal process. Shiner, 706 A.2d at 1237, citing, McGee v. Feege, 535 A.2d 1020 (1987) ( rejecting precedent indicating that seizure of person or property by legal process is required for a claim of abuse of process ). In Shiner, the Superior Court stated that any of the petitions or motions filed in the underlying claim could constitute the use of process required for the tort of abuse of process. Shiner, 706 A.2d at 1237. However, legal process arising from the use of bankruptcy proceedings cannot be used to support a state claim of wrongful use of civil proceedings because the Federal Bankruptcy Code provides an extensive scheme with its own remedies and sanctions for misuse of its es its own sanctions for abuse of its system and thereby preempts the state proceedings. Shiner, 706 A.2d at 1238. 4.3.2 Malicious Prosecution Common law malicious prosecution claims require the following: (1) the defendants initiated a criminal proceeding; (2) the criminal proceeding ended in the plaintiff's favor; (3) the proceeding was initiated without probable cause; and (4) the defendants acted maliciously or for a purpose other than bringing the plaintiff to justice. Merkle v. Upper Dublin School Dist., 211 F.3d 782, 791 (3d Cir. 2000), citing with disapproval on other grounds, Hilfirty v. Shipman, 91 F.3d 573, 579 (3d Cir.1996). A nol pross of criminal proceedings can satisfy the element of the criminal proceeding ending in the plaintiff s favor. In Hilfirty, the plaintiff s criminal proceedings were nol prossed pursuant to her co-defendant s agreement to enter an Accelerated Rehabilitative Disposition ( ARD ) program in exchange for dismissal of the charges against him and for the motion to nolle prosequi the charges against the plaintiff who subsequently brought the malicious prosecution claim. Hilfirty v. Shipman, 91 F.3d 573 (3d Cir. 1996) (disapproved on other grounds). Since the plaintiff had not been a party to her co-defendant s agreement, she could not be bound be the compromise between state and codefendant that purports to prohibit a subsequent malicious prosecution claim. In Hilfirty, the party did not accept a compromise or a release of future civil claims in exchange for it. Hilfirty v. Shipman, 91 F.3d 573 (3d Cir. 1996) (disapproved on other grounds). 4.3.3 Wrongful Use of Civil Proceedings Wrongful use of civil proceedings requires that a plaintiff must allege and prove the following three elements: 1) that the underlying proceedings were terminated in their favor; 2) that defendants caused those proceedings to be instituted without probable cause; and 3) that the proceedings were instituted for an improper purpose. Bannar v. Miller, 701 A.2d 242, 247 (Pa.Super. 1997). 14

The applicable statute provides that [a] person who takes part in the procurement, initiation or continuation of civil proceedings against another is subject to liability to the other for wrongful use of civil proceedings when both of the following criteria exist: (1) He acts in a grossly negligent manner or without probable cause and primarily for a purpose other than that of securing the proper discovery, joinder of parties or adjudication of the claim in which the proceedings are based; and (2) The proceedings have terminated in favor of the person against whom they are brought. 42 Pa.C.S.A. 8351. Generally, a claim for wrongful use of civil proceedings can be brought in state court pursuant to 42 Pa.C.S.A. 8351-8355 (also known as Dragonetti Act) even though the litigious conduct occurs in federal proceedings. Stone Crushed Partnership v. Kassab Archbold Jackson & O'Brien, 908 A.2d 875(Pa. 2006)(Bankrupcy Code preempted claims for abuse of process and wrongful use of civil proceedings but Court acknowledges viability of such claims that do not involve bankruptcy.); Werner v. Plater-Zyberk, 799 A.2d 776 (Pa.Super. 2002)(claims of abuse of process and wrongful use of civil proceedings can be brought in state court based upon federal litigation involving RICO claims.). However, legal process arising from the use of bankruptcy proceedings cannot be used to support a state claim of wrongful use of civil proceedings because the Federal Bankruptcy Code provides an extensive scheme with its own remedies and sanctions for misuse and or abuse of its system and thereby preempts the state proceedings. Stone Crushed Partnership v. Kassab Archbold Jackson & O'Brien, 908 A.2d 875(Pa. 2006); Shiner v. Moriarty, 706 A.2d 1228, 1238 (Pa.Super.1998). Impact of Bad Faith Litigation on Clients Claims In addition to creating legal claims against attorneys who misuse the legal system, litigation arising from the bad faith of the parties or attorneys can impact the legal claims against third parties. For example, the Pennsylvania Supreme Court has held that evictions brought in bad faith and for an improper purpose can be actionable as a breach the tenants implied covenant of quiet enjoyment and peaceful possession of the property. Kohl v. PNC Bank Nat. Ass'n, 912 A.2d 237 (Pa. 2006). The Supreme Court adopted a standard derived from Raker v. G.C. Murphy Co., 58 A.2d 18 (1948). This standard balances the need for access to the courts with a tenant's right to undisturbed possession. Kohl, 912 A.2d at 252. Bad faith is required to establish a breach of the tenant s quiet enjoyment in order to protect the landowner s constitutional right of access to the courts. Article one of the Pennsylvania Constitution 11 provides the following: Courts to be open; suits against the Commonwealth. All courts shall be open; and every man for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law, and right and justice administered without sale, denial or delay. Suits may be brought against the Commonwealth in such manner, in such courts and in such 15

cases as the Legislature may by law direct. Pa. Const. Art. 1, 11, cited by, Kohl, 912 A.2d at 245. Third Party Beneficiary Contract Claims Against Attorneys In some instances, non-clients may bring actions against attorneys as third party beneficiaries to a contract between an attorney and client when the attorney s negligence or breach has caused harm to the non-client, third party. A prime example is when legatees under a will claim that they were denied their intended benefits of a will because of an attorney s mistake. [O]ur Supreme Court has made available to legatees a cause of action as intended third-party beneficiaries of the contract between the testator and his or her attorney for the drafting of the will involved, pursuant to the principles of the Restatement (Second) of Contracts 302 (1979). Hess, supra, 925 A.2d at 806. An attorney client relationship is an essential element to bring a malpractice claim against an attorney and is required for standing in such claims, but the Supreme Court has carved out a narrow exception for legatees who would otherwise have no means by which to obtain their expectancies under the testamentary instruments naming them. Hess, supra, 925 A.2d at 806, citing, Minnich v. Yost, 817 A.2d 538, 543 (Pa. Super. 2003), and interpreting Guy, supra, 459 A.2d at 750-752. In Hess, supra, the the Superior Court rejected standing to the legatees who asserted that the will failed to reflect the true intent of the testator to bequeath them more than what was provided for in the will. Hess, supra, 925 A.2d 808. In Guy, the attorney s mistake rendered the will provisions and bequest void. In Hess, the legatee s objected to the will provision that allowed the testator s spouse to withdraw funds from the marital estate which thereby reduced the amount they could received under the terms of the will. Hess, supra, 925 A.2d 807-808. Disciplinary Enforcement of Regulated Attorney Misconduct Provides Exclusive Remedy for Claims Against Attorneys for Unfair Trade Practices The Pennsylvania Supreme Court had held that the Unfair Trade Practices and Consumer Protections Law (UTPCPL), 73 P.S. 201-1, et. seq., does not apply to attorney misconduct. Beyers v. Richmond, 937 A.2d 1082 (Pa. 2007). Specifically, the Beyers court decided that the UTPCPL does not apply to an attorney s conduct in collecting and distributing settlement proceeds where such conduct is governed by the Pennsylvania Rules of Professional Conduct and the Rules of Disciplinary Enforcement. Beyers, 937 A.2d at 1086. The Supreme Court decided that the UTPCPL applicability would violate the regulatory powers of the Supreme Court vested by Article V 10(c) of the Pennsylvania Constitution. Beyers, 937 A.2d at 1091. The Supreme court analogized legal professional malpractice claims to medical malpractice claims that are not subject to the UTPCPL. Beyers, 937 A.2d at 1088. There may be a significant distinction for the business activities of attorneys that violate UTPCPL. In reaching its decision in Beyers, the Supreme Court does not discuss the possibility of UTPCPL applying to the business practices of attorneys when it states that UTPCPL does not apply to the facts of that case. However, the Supreme Court relies upon the fact that the attorney misconduct in Beyers is the type that is 16

regulated by the Professional Rules of Conduct and the Disciplinary Board. Despite the inapplicability of the UTPCPL to attorney conduct that is regulated by the Supreme Court, law firms have been required to comply with Federal and State fair debt collection statutes when they regularly engage in the business of collecting debts owed to their clients. Beyers, supra, 937 A.2d at 1088 1089, citing, Daniels v. Baritz, 2003 WL 21027238 (E.D.Pa.2003); Commonwealth v. Cole, 709 A.2d 994, 997 (Pa.Commw.1998), appeal denied, 736 A.2d 606 (1999)(related to fraudulent business practices.). Furthermore, UTPCPL type claims may nonetheless be actionable as a breach of fiduciary duty, such as in the case of the failure to make meaningful disclosures. See 4.2, supra, regarding breach of fiduciary duty. 5 Other Rights Regarding Attorneys 5.1 Non-compete Agreements for Attorneys. Non-compete agreements for attorneys can be enforceable as a restrictive covenant even though they violate the ethical standards in Rule 5.6 of the Professional Rules of Conduct. Capozzi v. Latsha & Capozzi, 797 A.2d 314 (Pa. Super. 2002). Professional Rule of Conduct 5.6 precludes employment agreements that limit an attorney s ability to practice law after leaving a law firm. Obviously, if the case involves a law firm or other entity subject to the rules of professional responsibility, reporting the matter to the disciplinary board may be available, although the attorney subject to the agreement may also face exposure to disciplinary action. 5.2 Attorney Client Contractual Terms A client has an absolute right to terminate his or her attorney even though the attorney has performed services for him or her. The attorney may have a claim for quantum meruit against the client. Kenis v. Perini Corp., 682 A.2d 845 at 849 (Pa. Super. 1996). 17