Dax Watson, Managing Partner of Lipson Neilson’s Phoenix office, was selected by the Professional Liability Underwriting Society (PLUS) to moderate a panel discussion titled, “What’s Your Verdict? Potential Pitfalls in PL Defense.”
The trial of a professional liability loss allows for a number of defenses, but presenting such defenses to a jury poses a number of challenges. This panel explored those challenges through a mock trial of a legal malpractice claim involving estate planning with disgruntled family members. The audience viewed evidence, heard arguments, and was asked to decide the case as if they were on the jury.
Stacked with top speakers from across the country, the 2017 PLUS Conference was a destination event for professional liability insurance professionals. Held during November 1-3, 2017 at the Marriott Marquis in Atlanta, Georgia, this year marked the 30th Anniversary for this event.
Dax Watson focuses his law practice in commercial litigation with an emphasis in real estate matters and professional liability defense. His clients include professionals in the fields of real estate, law, accounting, architecture, and engineering. He regularly appears and represents clients in regulatory matters before the Arizona Department of Real Estate and other state and federal agencies.
About Lipson Neilson
Founded in 1985, Lipson Neilson, P.C. has offices in Arizona, Nevada, and Michigan. The firm is widely known for its excellence in the professional liability lines, offering invaluable insight and experience to its clients across all industries.
Contact: Dax Watson
A 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.