2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

In Bayview Loan Servicing, LLC v. Law Firm of Richard M. Squire & Assoc., LLC,No. 10-1451, 2010 WL 5122003 (E.D. Pa. Dec. 14, 2010), the plaintiff acquired the mortgageof an individual who later defaulted on the mortgage. The plaintiff retained the defendantsto commence a foreclosure action and obtained an in rem judgment and a judgmentagainst the individual in the amount of $287,992.56. The property was sold at a sheriff’ssale. The plaintiff later instructed the defendants to seek a deficiency in the amount of$374,998.01 against the individual. Defendants filed the lawsuit but failed to file a petitionto fix a fair value within six months of the sheriff’s sale, which is required in a deficiencyaction. The judgment in the foreclosure action was marked satisfied based on the failure tofile the required petition to fix fair value. The deficiency action also was dismissed. TheUnited States District Court for the Eastern District of Pennsylvania found the complaintsufficiently alleged the defendant’s malpractice caused the plaintiff’s injury where thecomplaint alleged the property was sold below market value, the individual owed theplaintiff in excess of $377,499.00 as a deficiency, the plaintiff instructed the defendants topursue the resulting deficiency, the defendants failed to file a petition to fix fair value,which is required when pursuing a deficiency, and, as a result of the defendants’ failure,the plaintiff suffered damages.In cases involving negligent representation in a criminal proceeding the PennsylvaniaSuperior Court has set forward the following elements needed to establish a legal malpracticeclaim:(1) The employment of the attorney;(2) Reckless or wanton disregard of the defendant’s interest onthe part of the attorney;(3) The attorney’s culpable conduct was the proximate cause ofan injury suffered by the defendant/plaintiff, i.e., “but for” theattorney’s conduct, the defendant/plaintiff would have obtainedan acquittal or a complete dismissal of the charges.(4) As a result of the injury, the criminal defendant/plaintiffsuffered damages.(5) Moreover, a plaintiff will not prevail in an action incriminal malpractice unless he has pursued post-trial remediesand obtained relief which was dependant on attorney error;additionally, although such finding may be introduced intoevidence in the subsequent action it shall not be dispositive ofculpable conduct in the malpractice action.Bailey v. Tucker, 621 A.2d 108 (Pa. Super. Ct. 1993); see also Telepo v. Martin, 257 F.R.D. 76(E.D. Pa. 2009) (case remanded to state court to determine if a cause of action exists whenattorney negligence causes sentencing error.)147