Summary Dismissal Victory Achieved by Phillip E. Seltzer and Shawn Grinnen In Defense of Lawyer on Claim of Legal Malpractice

Phil and Shawn PhotoA first responsive motion for summary dismissal of a legal malpractice claim was recently granted in favor of a Defendant-Lawyer represented by Lipson Neilson attorneys Phillip E. Seltzer and Shawn Grinnen. The Defendant-Lawyer represented Plaintiff in a prior criminal proceeding involving his alleged failure to register as a sex offender for a prior offense and engaging in sexually abusive conduct with a minor over Facebook. After waiving the preliminary hearing and obtaining discovery, the Plaintiff decided to terminate Defendant-Lawyer and new counsel was appointed. Defendant-Lawyer formally withdrew via court order.

Over a month later, while represented by successor counsel, Plaintiff entered into a voluntary plea agreement, admitted his guilt of the criminal charges on the record, admitted to the location of the crimes, affirmed that his decision to plead guilty was voluntary and without threats or other inducements, and that he was knowingly waiving his right to trial and defend. While serving a four-year sentence, Plaintiff sued Defendant-Lawyer for malpractice, claiming that the waiver of the preliminary exam was critical since the alleged crimes occurred in a different county and no jurisdictional basis existed for his prosecution or guilty plea in the County Court where he was charged.

As an initial response to the Complaint, the Lipson Neilson team filed a motion for summary dismissal arguing that the claim of legal malpractice was barred because: (i) Plaintiff’s voluntary plea of guilty cut off all causation for Plaintiff’s injuries (wrongful incarceration and loss of business and loss of income) as a matter of law, and (ii) Plaintiffs’ statements on the record, concerning his guilt and the location of the underlying crimes, judicially estopped Plaintiff from asserting the crimes occurred elsewhere or that Defendant-Lawyer failed to raise a jurisdictional argument at the preliminary exam. Additionally, during the dismissal motion hearing, Plaintiff’s asserted for the first time that his plea agreement was not voluntary and he lied under oath because his lawyer supposedly told him to so in order to get a more lenient sentence.

As a result, the Lipson Neilson defense counsel spontaneously argued that the legal malpractice claim was also barred under the the doctrine of in pari delicto – the wrongful conduct rule – because Plaintiff’s criminal conduct in committing perjury at his plea hearing was the central cause of his incarceration and consequential damages. Accordingly, such wrongful conduct prohibited Plaintiff from pursuing any civil remedy. The Trial Court granted the motion, adopting the legal grounds presented, and summarily dismissed the case.

Steve Malach Participates in Casey Kasem’s Seminar

Steven Malach, who heads up the Probate, Trust and Estate Planning section of Lipson Neilson, recently attended a webinar narrated by Casey Kasem’s daughter, discussing the unfortunate circumstances involving the late Casey Kasem’s affairs. Mr. Kasem passed away on Father’s Day of 2015. He was an iconic disc jockey of national renown and known for the Casey Kasem top 100 song countdown.

In addition to suffering the ravages of dementia, his children were isolated and told they were not allowed to see their father by his second wife. This is an unfortunate textbook example of what can go wrong with or without an estate plan that can lead to very dramatic and dynamic probate related litigation during a person’s lifetime or even after they passed away.

Phillip Seltzer and Shawn Grinnen Successfully Defend Law Firm Client Against Tortious Interference and Slander of Title Claims

Victory Achieved by Phillip E. Seltzer and Shawn Grinnen In Defense of a Law Firm Client against Tortious Interference and Slander of Title Claims

Phil and Shawn PhotoThe client-Law Firm, which specializes in representing condominium and community entities, initiated a lawsuit against a condominium developer seeking monetary and declaratory relief. The suit was based on a statute that appeared to mandate the automatic reversion of legal title of unbuilt condominium units to the Condo Owner Association if, after ten years, the Developer failed to build and complete those units per a filed Master Plan.

After a ten-year building hiatus, the Developer began undertaking the build out of three lots (out of dozens still unbuilt) and was in the process of selling one of the lots. The Law Firm, citing the statute, filed a Claim of Interest in the real estate records, on behalf of its client (the Condo Owner Association), asserting property rights in all unbuilt lots, including the three under construction.

A lawsuit followed by the client-Law Firm (on behalf of the Condo Association) against the Developer. Developer filed separate legal claims against the Law Firm claiming that its legal advice and actions constituted slander of title and tortious interference with contractual relations and interference with the economic expectancies of the Developer.

The Lipson, Neilson team argued that no improper tortious interfering conduct existed to sustain the interference claims, only lawful and professional legal advice to clients proffered in good faith to assist in protecting disputed property rights. The trial judge agreed and dismissed the interference claims, noting that the filing of a lawsuit to declare disputed property rights is the essence of proper – not tortious – conduct. The Trial Court also agreed that no slander of title claims could survive because of the lack of legal malice – namely, the law firm engaged in a good faith interpretation of a statute that had never been the subject of a legal opinion by any appellate court or the Michigan Supreme Court.

Under this circumstance, malice did not exist when the position advocated by the law firm is in good faith and posited a reasonable belief in a valid protectable property interest. The non-existence of malice was underscored by the lack of any existing legal authority to contradict the Law Firm’s reasoned belief (even if it is later determined to be legally inaccurate.)

Don’t Let the Debt Racked Up by a Deceased Spouse Catch You Unaware

by Steven Malach, Chair of the Estate Planning and Elder Care practice at the Lipson Neilson law firm, and founder of the Center for Estate Planning (CEP).

When dealing with the extremely emotional implications of the death of a spouse, dealing with debt left by your loved one is probably not your first concern. However, you need to know this is a crucial issue that does need to be taken seriously going forward.

The best advice in this situation is to not be intimidated by creditors. Be aware that there are financial institutions (Credit Card Companies, Loan originators, etc.) that will take advantage of your vulnerable state.

Seek advice from an attorney who specializes in estate matters and a certified financial planner for your specific responsibilities. The Fair Debt Collection Practices Act was enacted by the Federal Trade Commission to protect consumers against illegal collection tactics.

Remember – during your grief, the law protects you from being taken advantage of.

Bloomberg BNA’s Tax Management Memorandum Publishes Article by Sandra D. Glazier

No Good Deed Goes Unpunished Especially When Acceptance Means a Target on One’s Back: Defending Breach of Fiduciary Duty Claims in the Context of Trust and Estate Administration By Sandra D. Glazier, Esq., Lipson, Neilson, Cole, Seltzer & Garin, P.C.

Sandy Glazier BNA April 2017 Family members or trusted family consultants are often honored when they learn they’ve been nominated to act as a trustee. They take the appointment seriously, but may not have a background in trust administration. Perhaps they perused or read the pertinent instrument in its entirety when they accepted the appointment. They might interpret oft included boilerplate language as instilling them with broad (if not unlimited) powers. The enumeration of powers might lead non-professional fiduciaries to the mistaken belief that they can handle the assets as they do their own — or in the same fashion that the settlor did.

Since they view themselves as ‘‘reasonable’’ they may believe that they need only to xercise their discretion as they deem appropriate. They may even believe they know what the settlor wanted and adapt their decision making accordingly. For purposes of these materials, we will generally assume that the trustee acted in good faith. Unfortunately, it’s not uncommon for nonprofessional trustees to be unaware of statutory and common law that may supersede, supplement or otherwise override provisions contained within the trust instrument.

Further complicating this area may be that the settlor was the glue that held the family together. When the settlor is no longer able to manage his own affairs, no longer has capacity, has otherwise become vulnerable or has died, familial rivalries may find a new forum in which to play out. Litigation in this arena often is more than just about the money. It’s often emotionally charged and, even if carefully managed, such litigation can result in irreparable family rifts…Click here for full article.

Victory Upheld in Defense of Lawyer for Phillip E. Seltzer, C. Thomas Ludden and Samantha Heraud

By order dated April 4, 2017, the Michigan Supreme Court recently ruled to let stand a prior victory achieved in the Michigan Court of Appeals in the matter of Boladian et al v. Thennisch, et al, Unpublished Mich. Ct. of App., issued April 12, 2016 (Docket #No. 324737). In Boladian¸ a lawyer was sued for, among other things, malicious prosecution, abuse of process and defamation, arising from the failed prosecution of civil matters against a music publishing company and its owner. The Lispon Neilson legal team of Phillip E. Seltzer, C. Thomas Ludden, and Samantha Heraud, obtained summary dismissal of the referenced claims in the trial court and defended that result on ensuing appeals.

The Boladian Court of Appeals panel affirmed the trial court’s rulings. Boladian is the first Michigan case to reject a multiplicity of legal proceedings as constituting a “special injury” — a necessary requirement to prove a malicious prosecution claim. Noting Michigan’s “special injury” requirement, the Court of Appeals refused to expand the notion of “special injury” beyond the English common law rule – previously adopted in Michigan — which does not include defending multiple legal proceedings (or, in this case, multiple post judgment motions that sought relief from various settlements in different civil lawsuits involving plaintiffs).

Furthermore, the Court of Appeals affirmed summary dismissal of the abuse of process claim against the attorney, determining that an alleged settlement demand for $1 million in exchange for a promise of not filing a damaging and supposedly defamatory affidavit, failed to demonstrate the required ulterior or collateral purpose necessary to sustain the tort. Demanding settlement is not collateral to maintaining a lawsuit, especially one that seeks monetary damages. Further, no showing was made that the demand was beyond the realm of potential damages in the underlying case.

The Boladian Court also rejected the argument that there was an “ulterior motive” based on the desire of the lawyers to “drum up business” by leaking an alleged defamatory story about Plaintiffs’ business practices to the media, finding that this was either a part of a time barred defamation claim that had previously been dismissed and, further, because supplying information to the media is “action outside legal proceedings” and not applicable to an abuse of process claim.

To learn more about this case, please contact Phillip E. Seltzer at 248-593-5000.

Medicare Starter Kit

8 Does and Don’t of signing up for Medicare:

  1. Do give yourself time to learn about Medicare:
  2. Don’t expect to be notified when it’s time to sign up:
  3. Do enroll when you’re supposed to:
  4. Don’t despair if you haven’t worked long enough to qualify:
  5. Don’t worry that poor health will affect your coverage:
  6. Do remember that Medicare is not free:
  7. Don’t assume that Medicare covers everything:
  8. Don’t expect Medicare to cover your dependents:

CEP-Logo2

The Center for Estate Planning is a leader in Michigan for many areas of estate planning, from estate administration to lifetime counsel and probate administration work. We focus on individuals and closely-held businesses and charitable organizations, working closely with our clients to provide top level advice.

Since Lipson Neilson acquired the the Center for Estate Planning, the firm has greatly enhanced its depth of expertise and practice disciplines. To learn more please visit www.CEPlawyers.com

A Bankruptcy Court Order Permitting Creditors to Pursue Legal Malpractice Claims in State Court in the Name of a Debtor’s was an Impermissible Assignment and Violates Public Policy

Joe Garin and Jessica Green 2016By Joseph P. Garin, Esq. and Jessica A. Green, Esq., of Lipson, Neilson, Cole, Seltzer & Garin, P.C., Las Vegas, Nevada; as published in the March 2017 issue of the eAdvisory published by the American Bar Association’s Standing Committee on Lawyers’ Professional Liability

In Tower Homes, LLC v. William H. Heaton, the Nevada Supreme Court concluded a bankruptcy court order permitting a group of creditors to pursue a legal malpractice claim in the debtor’s name constituted an impermissible assignment of the claim which, as a matter of public policy, is prohibited under Nevada law.

Tower Homes, LLC (“Tower”) retained attorney William Heaton to assist with a residential common ownership project. Various individual investors (hereinafter the “Purchasers”) made earnest money deposits before the project was complete and entered into contracts with Tower to reserve condominiums. The project failed and Tower entered Chapter 11 bankruptcy protection.

The Purchasers were among the many creditors in the bankruptcy proceedings. In 2008, the bankruptcy trustee created a plan of reorganization and the bankruptcy court entered a confirmation order. Per the order, the trustee and bankruptcy estate retained all legal claims. In 2010, the bankruptcy trustee entered into a stipulation and order with the Purchasers recognizing the trustee did not have sufficient funds to pursue any legal malpractice claims related to the Purchasers’ lost earnest money deposits, and instead allowed the Purchasers to pursue the claim in Tower’s name.

Pursuant to the 2010 order, in 2012, the Purchasers filed a legal malpractice lawsuit against Heaton, naming Tower as plaintiff. Dissatisfied with the Purchasers’ standing to pursue the legal malpractice claim, the state trial court allowed the Purchasers to seek an amended order from the bankruptcy court. In 2013, the bankruptcy court entered an additional order authorizing the Purchasers to pursue any and all claims on behalf of Tower (specifically including the malpractice case against Heaton) and noted that the recovery “shall be for the benefit of the [P]urchasers.”

Heaton moved for summary judgment in the district court arguing the 2013 bankruptcy stipulation and order constituted an impermissible assignment of a legal malpractice claim. The Purchasers argued federal law permits a Chapter 11 bankruptcy plan to allow named representatives of the estate to bring legal malpractice claims on behalf of the estate, with or without an assignment. The Purchasers also contended that they were assigned only the proceeds, not the entire malpractice claim. The Nevada Supreme Court previously determined that in a personal injury context, the difference between an assignment of an entire claim and an assignment of proceeds was the retention of control; reasoning that when only proceeds are assigned, the original party maintains control over the claim, but when an entire claim is assigned, a new party gains control over it. Despite these arguments, the trial court granted summary judgment in Heaton’s favor on the basis that there was an assignment of the legal malpractice claim contrary to Nevada law. The Purchasers appealed.

The Nevada Supreme Court affirmed summary judgment in favor of the attorney. In its decision, the Nevada Supreme Court reinforced the traditional notion that the assignment of legal malpractice claims is generally prohibited and “[a]s a matter of public policy, [Nevada] cannot permit enforcement of a legal malpractice action which has been transferred by assignment…but which was never pursued by the original client” as “[t]he decision to bring a malpractice action against an attorney is one peculiarly vested in the client.” The Nevada Supreme Court agreed that while a bankruptcy plan may allow an estate representative to pursue the estate’s claim without an assignment so long as the representative is prosecuting the claim “on behalf of the estate,” “[i]f a party seeks to prosecute the action on its own behalf, it must do as an assignee, not a special representative.” The Court reasoned that because the bankruptcy court’s order transferred control and proceeds of the legal malpractice claim to the Purchasers, the Purchasers were not pursuing claim on behalf of the estate as permitted by federal law, but rather pursuing it for their own benefit.

Practice Note: This decision runs contrary to recent decisions in other jurisdictions that seem to relax the standard privity requirements in legal malpractice claims and permit assignments of legal malpractice claims to non-clients in a business context.

Phillip E. Seltzer on Panel of Experts for ICLE Webinar Titled “Identify and Pursue Legal Malpractice Claims”

Phillip E. Seltzer, a Principal and Shareholder of Lipson, Neilson, Cole, Seltzer, Garin, P.C., was selected by the prestigious Institute for Continuing Legal Education (ICLE) to be on a panel of experts for a webinar titled “Identify and Pursue Legal Malpractice Claims.” Posted on ICLE.org, this webinar is available for member viewing and provides continuing legal education credits.

The overall theme of this webinar addresses identifying legal malpractice as a claim, the elements necessary to sustain such a claim, and the available defenses that may bar or defeat such an action. Topics discussed include: strategies for identifying the required elements for a potential malpractice action; the evaluation of the defenses that might bar recovery or defeat a claim; establishing or refuting the applicable standard of care with expert testimony; identifying when a conflict of interest results in divided loyalties, when such a conflict may form the basis of a claim, and the defenses to such conflict of interest claims; and distinguishing malpractice liability from a violation of professional ethical standards and if or when such standards are relevant to litigating a malpractice claim.

Phillip E. Seltzer is an AV-Preeminent® rated attorney that is recognized nationwide for his work in defending legal malpractice claims. He focuses his practice on the litigation of business torts and the defense of professional liability claims, primarily dealing with lawsuits against attorneys. Mr. Seltzer also defends professionals in other fields, including architecture and design professionals, accountants, real estate agents, insurance agencies and insurers, and E&O claims against directors, officers, and employers.

He has served as a hearing officer for the Character and Fitness Committee of the State Bar of Michigan, has published numerous articles and has publicly presented on a variety of topics regarding the defense of legal malpractice claims. He is actively involved in organizations focusing on the law governing lawyers, professional liability, and lawyers’ ethical responsibilities.

Contact: Phillip E. Seltzer
Phone: 248-593-5000
Email: PSeltzer@lipsonneilson.com

Sandra Glazier Selected to Speak at the 29th Annual Spring Symposia for the American Bar Association’s Section of Real Property, Trust and Estate Law

SG001_SQ_eLipson Neilson Shareholder Sandra Glazier has been selected by the American Bar Association (ABA) to co-present “Disputes Over Estate or Trust Administration” during the community outreach program of the 29th Annual Spring Symposia for the Section of Real Property, Trust and Estate Law. This presentation will address disputes that arise during the course of administration of an estate or trust, including: accounting proceedings, breach of fiduciary duty/surcharge litigation, and removal of fiduciary proceedings. Ms. Glazier will co-present along with Laura Lattman, Principal of The Lattman Law Firm in New York City.

Ms. Glazier is one of only two Michigan attorneys selected by the ABA to present in the Estate Planning and Trust Administration portion of the Symposia that will be held in Denver, Colorado during April 19 – 21.

An attorney for more than 34 years, Ms. Glazier is known for her expertise and successful track record in probate litigation, estate planning, trust and estate administration, and family law matters.  The cases she works on tend to be very complex and require technical as well as legal expertise.  Ms. Glazier has represented contestants and proponents of estate planning documents, as well as fiduciaries, in significant trust litigation proceedings.  An AV-Rated attorney, she has also been recognized as a “Top Lawyer” by DBusiness, in the areas of probate, estate and family law.

Ms. Glazier has had numerous articles published by some of the legal industry’s leading publications. In addition, she has presented on estate planning and probate litigation related topics for the ABA, Notre Dame Tax and Estate Planning Institute, Kansas City Estate Planning Symposium, ICLE, the OCBA, Wilmington Trust’s New York Trust Symposium and the Bloomberg BNA Estate and Gift Tax Advisory Board.

Contact: Sandra Glazier
Phone: 248-593-5000
Email: sglazier@lipsonneilson.com