Sometimes Non-Clients Can Recover Damages for Legal Malpractice
It may seem as though the only people who can sue attorneys for legal malpractice are the clients or former clients of the attorneys who are alleged to have committed malpractice. An interesting case out of New Jersey, Innes v. Marzano-Lesnevich v. Leibowitz, 435 N.J.Super 198, 87 A.3d 775 (April 7, 2014), illustrates how sometimes, non-clients can recover for damages that were caused by an attorney’s malpractice. It is important to note that these cases are few and far between. This case is also interesting in that it contains another rare occurrence, damages being awarded for emotional distress as part of a legal malpractice suit.
The events that led up to this case began in 2004, when a husband and wife parted ways. As part of their divorce, the parties agreed that neither of them would take their daughter out of the United States without the permission of the other, and that the wife’s attorney would hold onto the daughter’s passports so that neither parent would have access to them. The wife decided to work with a new attorney, and her new attorney obtained her file (containing her daughter’s passport) from her former attorney.
After the wife met with her new attorney in December of 2004, the daughter’s passport went missing from the wife’s file. There is conflicting evidence about whether the attorney gave the passport to the wife or if the wife removed it from the file while she was in the office. After the passport went missing, the daughter left the country and was living in Spain with her grandparents.
When the husband realized that his daughter was in Spain, he was distraught. The agreement which was supposed to have kept his daughter in the United States absent his consent for her to go elsewhere had been subverted by his wife’s new attorney. He filed a claim for malpractice against the attorney, and a jury found in his favor.
The defendant attorney appealed the verdict, arguing that he owed the husband no duty, and that he had not promised the husband that he would honor the agreement which involved maintaining possession of the passport. The New Jersey Superior Court did not agree with the defendant attorney’s arguments, and in its decision stated that in some cases, such as this one, attorneys do owe a fiduciary duty to certain non-clients who rely on the attorney’s professional capacity. In this case, it was reasonably foreseeable that if the wife gained control of the daughter’s passport, the daughter could be removed from the country without her father’s knowledge or permission. The husband was relying on the passport being retained by an attorney in order to prevent that from happening. The court went on to state that the defendant attorney should have contacted the husband’s attorney and the wife’s former attorney to let them know that he did not plan to abide by the agreement regarding the passport.
Although cases of this nature are rare, it is not uncommon for clients or former clients to suffer damages as a result of legal malpractice by a current or former attorney. If you feel as though you may be a victim of legal malpractice, the Tennessee legal malpractice attorneys at Bailey & Greer, PLLC are here to help. We will sit down with you to learn about your case, explain your options, and help you decide how to proceed. To learn more, call us at 901-680-9777 to schedule a time to discuss your case. At Bailey & Greer, PLLC, we are small enough to care, big enough to fight, and experienced enough to win.
Since graduating magna cum laude in 2005 from the University of Memphis School of Law, Thomas has helped make a difference in the lives of victims of serious personal injury, wrongful death, and professional negligence. Thomas has extensive trial experience in both state and federal court. Among other victories in the courtroom, Thomas obtained several impressive jury verdicts and settlements
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