JWY Fighting for Rights of Victims of Malpractice by Lawyers

Johnson, Webbert & Young is taking a case to Maine’s highest court to make sure lawyers are not above the law and are held accountable when they miss filing deadlines and cover up their mistakes from their clients.

As featured in the Maine Lawyers Review on February 7, 2019

 Legal Malpractice Damages – Impossible to Prove?

In a recent legal malpractice case, despite admitting negligence and breach of the standard of care, defendants were, nonetheless, granted summary judgment because the court found plaintiff’s damages too speculative.

Russell Chretien brought suit against Attorney William Robitzek and his law firm, Berman & Simmons, alleging that Robitzek’s failure to file a charge of discrimination with the Maine Human Rights Commission caused him to lose available remedies; including compensatory and punitive damages and attorney fees, in a whistleblower discrimination claim against Allstate Insurance Co. Chretien had previously been an agency manager for Allstate and had terminated that arrangement under circumstances that he, alleged, fell within the protection of Maine’s Whistleblower Protection Act.

Allstate sued Chretien for breach of contract and misappropriation of trade secrets, and confidential information. Chretien filed a counterclaim, through Robitzek, asserting multiple claims including violation of the Whistleblower Protection Act.

Robitzek subsequently learned that his failure to file a charge of discrimination with the Maine Human Rights Act, within 300 days of the alleged discriminatory act, would preclude Chretien from recovering compensatory and punitive damages, and attorney fees on his whistleblower claim. Chretien alleged that despite that realization, Robitzek did not disclose that information to Chretien until over a year later; at a time when trial was scheduled to begin in less than two weeks.

Trial commenced, and Magistrate Judge John Nivison ruled that Chretien could present evidence on his whistleblower claim but could only recover limited equitable relief; including front back and back pay, but not compensatory damages, punitive damages, or attorney fees. After several days of trial, the parties engaged in a settlement conference with Judge Louis Kornreich, who recommended a specific dollar amount by Allstate to Chretien to settle all claims and counterclaims between them; and indicated that he had to push Allstate hard to get to that number, which was Allstate’s “final number.” The parties settled at that figure, which was not disclosed due to a confidentiality agreement.

Chretien claimed that Robitzek’s failure to file a whistleblower claim with the Maine Human Rights Commission cost him the opportunity to recover additional damages and caused him severe emotional distress. He alleged that he “felt betrayed” on learning that Robitzek had known of his error for more than a year before disclosing it, and that he felt suicidal about losing the ability to fully pursue his whistleblower claim. Chretien designated an expert, Attorney Richard O’Meara, who opined that Chretien, more likely than not, would have prevailed on his whistleblower claim at trial and recovered compensatory and punitive damages of $500,000.

On defendants’ motion for summary judgment, Justice Andrew Horton found the element of causation to be dispositive. The parties disputed whether this was an “ordinary negligence” case or a “failure to plead” case. The court explained that, in an ordinary negligence case, plaintiff must prove a breach of duty proximately caused an injury or loss to him; whereas in a failure to plead case, plaintiff must show only that the attorney’s negligence caused plaintiff to lose an opportunity to achieve a favorable result.

While stating that “the court agrees with the Defendants that this is not a ‘failure to plead’ case,” Justice Horton found that “[u]nder either formulation, Plaintiff Chretien has the burden to prove that attorney Robitzek’s negligence caused the loss of a better result than the one Mr. Chretien actually obtained through the settlement.” Despite O’Meara’s opinion as to the merits and value of Chretien’s whistleblower claim, Justice Horton held that Chretien had not made a prima facie showing that he would have obtained a better result had he been able to pursue the lost opportunity.

Justice Horton held that, because the underlying trial had ended before a verdict, it was impossible to determine whether Chretien would have obtained a judgment for more than the settlement amount. He noted that O’Meara had not evaluated the strength of Allstate’s claims against Chretien and any award in Chretien’s favor would have been offset by any award in Allstate’s favor. Justice Horton further found that it was “an exercise in pure speculation” as to whether Allstate would have been willing to pay more in settlement had Chretien been able to pursue his full remedies on the whistleblower claim; noting that “Judge Kornreich was clear that Allstate’s final offer — the offer that Plaintiff Chretien accepted — was all that Allstate was prepared to pay.”

Chretien, who is represented by Attorneys David Webbert and Philip Johnson, has appealed Justice Horton’s decision to the Law Court. Webbert believes the court erred in concluding that the causation standard was the same in a “failure to plead” case; commenting that “The whole point of the Law Court’s ruling in the Niehoff case [Niehoff v. Shankman & Assocs. Legal Ctr., P.A., 2000 ME 214, 763 A.2d 121] was that a relaxed causation standard was needed in failure to plead cases, limited to showing that ‘the attorney’s negligence caused the plaintiff to lose an opportunity to achieve a result, favorable to the plaintiff.’”

Webbert argued that a jury should have been allowed to determine the value of Allstate’s and Chretien’s claims, and that the jury could reasonably have concluded that Chretien’s claims had a much lower settlement value because of the unavailability of compensatory and punitive damages and attorney fees as remedies for the whistleblower claim. Webbert also noted that “[t]he recognized damages for the fraud and fiduciary duty violations are separate from the reduced value of the settlement, or verdict, and instead include the emotional distress caused by the fraud and fiduciary violations and punitive damages.”

Webbert said that defendants had not even moved for summary judgment on those counts of Chretien’s complaint, and thus the entry of summary judgment on those counts violated “basic rules of summary judgment and due process.” He further commented: “Lawyers must be held accountable for such blatant professional misdeeds in order to maintain public confidence in the administration of justice.”

Attorneys for defendants, John Aromando, Katharine Rand, and Sara Murphy, declined to comment on the matter because of the pending appeal.

The opinion in Chretien v. Berman & Simmons, MLR/SC#126-19, is summarized in this issue at page 9.

— Julie D. Farr, julief@mainelawyersreview.com