2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

The court found, however, to state a claim the third-party beneficiary must be named inthe will the attorney drafted. The court rejected the plaintiffs’ argument that they shouldbe accorded third-party beneficiary status because the defendant’s failure to draft a willwhich accurately represented their step grandmother’s intent deprived the plaintiffs oftheir bequest, which was contained in an earlier will. The court reasoned the decedentcontracted with the defendant to draft her later will and the fact the plaintiffs werementioned in an earlier will did not accord them third-party beneficiary status.H. Waiver of Meritorious DefenseIn Ammon v. McCloskey, 655 A.2d 549 (Pa. Super. Ct. 1995), appeal denied, 670 A.2d139 (Pa. 1995), the court ruled that waiver of a viable release defense, resulting in the entry of ajudgment against the client, constituted a viable cause of action for legal malpractice whichmight subject the attorney to damages for the underlying judgment. However, the court furtherstated that the issue of whether a waiver had actually occurred had never been fully litigatedagainst the lawyer, and therefore remained a valid factual question to be resolved in litigation ofthe legal malpractice case. Id. at 553-54.I. Duty to Keep Client InformedIn Perkovic v. Barrett, 671 A.2d 740 (Pa. Super. Ct. 1996), Plaintiffs sued their attorneyfor legal malpractice based on the following fee agreement:CLIENTS expressly retain Attorney [***] for the handling of theappeal of this matter to Superior Court which has been timelyfiled; ATTORNEY is to prepare and prosecute said appeal in adiligent and professional manner;CLIENTS agree to pay ATTORNEY the sum of $15,000 toprepare and prosecute this appeal; this includes the preparation andfiling of the proper notices of appeal, preparation, legal researchand legal writing necessary for the Legal Brief. . . ATTORNEYagrees to represent CLIENTS at any oral argument that may benecessitated by the Superior Court in the perfecting of this appeal.The court held that this fee agreement required Defendant-attorney to notify the client ofthe results of the appeal. The court also held, however, that the fee agreement did not imposeupon Defendant-attorney a duty to continue representation following the remand of the case as itonly contemplated the appeal referenced therein. Id. at 744.J. Statute of LimitationsA legal malpractice action founded upon negligence is subject to the two-year statute oflimitations while such an action founded upon breach of contract is subject to the four-yearstatute of limitations. See, e.g., Fiorentino v. Rapoport, 693 A.2d 208 (Pa. Super. Ct. 1997),appeal denied, 701 A.2d 577 (Pa. 1997). It should also be noted, that the courts have rejectedattempts to “[r]e-package a negligence-based malpractice claim under an [contract] theory toavoid the statute of limitations.” The court, citing Sherman Industries, Inc. v. Goldhammer, 683158