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.
15. On May 7, 2013, [the Hearing Officer] ordered Respondent to show cause as to why Respondent had not complied with her April 17, 2013 order, and to provide the five required documents related to Daniels’ bankruptcy, by May 10, 2013. [The Hearing Officer]’s order restated that failure to comply with the order could result in sanctions, including default or dismissal of the request for hearing. 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.
16. Respondent did not provide [the Hearing Officer] with the documents by May 10, 2013, as ordered. Those documents were either in Respondent’s possession or publicly available as part of the filings in Daniels’ bankruptcy proceedings. On June 20, 2013, [the Hearing Officer] issued an order dismissing Daniels’ hearing request as a result of Respondent’s non-compliance with her April 17, 2013 and May 7, 2013 orders. A copy of the dismissal order was sent to Respondent by the Clerk of Hearings or other EEOC staff, and Respondent received the order shortly thereafter.”
Additionally, the ARDC alleged that the respondent failed to inform the client that the case had been dismissed “because of Respondent’s failure to comply with [the Hearing Officer’s] April 17, 2013 and May 7, 2013 orders requiring Respondent to provide [the Hearing Officer] with documents relating to Daniels’ bankruptcy.
The Rules at issue are 1.3 (failure to act with diligence) 1.4(a)(c) (failure to keep the client reasonably informed about the status of the matter), and 3.2 (failure to expedite litigation).
In Count II, the ARDC accuses Ms. Hickman of accepting a child support case and failing to take any action to transfer the case to Tennessee so that the order could be modified. The ARDC alleged in particular that:
“29. Respondent did not, at any time between January 10, 2013 and April 2, 2013, take any steps to modify Steven’s child support order, request the transfer of case number 2004F277 to Tennessee, or send the Reyeses a certified copy of the July 20, 2005 child support order.
30. On April 2, 2013, Dawn emailed Respondent a request for a refund of the $1,000 Bock had paid Respondent. In the email, Dawn stated “…because you have done nothing, Steve is in contempt at the moment, which is a very big inconvenience for me and my family…” From the time Dawn requested a refund on April 2, 2013, to May 18, 2014, the date this matter was referred to Panel C of the Inquiry Board, Respondent has not taken any action to have case number 2004F277 transferred or modified. Although Respondent did not do enough work to justify retaining the entire $1,000 fee paid, she has not refunded any portion of the $1,000 fee paid by the Reyeses.”
The charges include Rule 1.3 (lack of diligence) 1.4(a)(c) (failure to keep client reasonably informed about the status of the matter), 1.16(d) (failure to refund an unearned fee), and 8.4(c).
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.