More and more often poor legal work is becoming the subject of attorney discipline complaints. A client can, of course, bring a legal malpractice case for legal work that breaches the standard of care. However, legal malpractice cases can be difficult to bring because the plaintiff must show that, but for the lawyer’s negligence he would have won the underlying case. Then the plaintiff must prove damages. Thus, there are many case where a lawsuit cannot be brought even where the lawyer’s work did not meet the standard of care. These types of legal malpractice cases are increasingly being brought by the ARDC and other state regulatory bodies.
One case that fits this trend is In Re Laurel Sue Hickman, 2014 PR 145, where the respondent lawyer was alleged to have missed discovery deadlines leading to the dismissal of a client’s EEOC case. In that complaint, the ARDC alleges that a client, Queshaun Daniels retained Ms. Hickman to represent him in his EEOC matter. Daniels claimed that she had been the victim of discrimination by the United States Postal Service. Daniels matter was complicated because, before she filed the EEOC claim, she had filed a bankruptcy case.
The factual allegations of the complaint read like a typical motion to compel. Ms. Hickman allegedly failed to answer certain discovery requests that were due on February 8, 2013. The hearing officer then granted a motion to compel, ordering the attorney to answer the written discovery by March 1, 2013. The hearing officer further issued a rule to show cause “by March 15, 203 as to why she did not timely answer the USPS’s discovery requests…” Complaint at ¶10. The respondent answered the discovery requests by March 15, 2013.
On March 22, 2013, the attorney for the USPS “filed a motion to hold the EEOC matter in abeyance based on Daniels’ January 31, 2012 Chapter 7 bankruptcy filing so that the hearing officer could determine the real party in interest. Complaint ¶12. According to the complaint, paragraph 13:
“13. On April 17, 2013, [the Hearing Officer] ordered Respondent to provide her by April 26, 2013, with five documents that had been filed in Daniels’ bankruptcy, by April 26, 2013. [The Hearing Officer] specified the documents that Respondent was ordered to provide: 1) a filed copy of the bankruptcy petition; 2) the Schedule B – Personal Property filing; 3) the Statement of Financial Affairs; 4) the name and contact information of the Trustee; and 5) the name and contact information of the Trustee’s representative. [The Hearing Officer] noted on her order that two of the documents requested, the bankruptcy petition and Schedule B filing, had already been provided by Rosen, and if they were correct, Respondent did not need to resubmit them. A copy of the order was sent to Respondent by the Clerk of Hearings or other EEOC staff, and Respondent received the order shortly thereafter. Respondent failed to provide [the Hearing Officer] with any of the five documents by April 26, 2013, as ordered.
In sum, this is a classic negligence case that no lawyer would take because it would be difficult to prove that the underlying matters could have been won absent the lawyer’s negligence and because damages would be difficult to prove.
Edward X. Clinton, Jr.