Saturday, March 8, 2008

Disqualifying Fannick: Cost v. Cost

In Cost v. Cost 677 A.2d 1250, 450 Pa.Super. 685 (Pa. Super., 1996) the plaintiff filed a complaint alleging professional negligence on the part of Attorneys Georgia L. Cost, a/k/a Georgia L. Pawk, Richard G. Kotarba and the law firm of Meyer, Unkovic & Scott, for whom Kotarba was employed, regarding the “buyout” of Anthony C. Cost’s ownership interests in various family businesses. To complete the transaction,various agreements had to be signed by all interested parties, one of whom was the plaintiff as spouse of Frank A. Cost. Plaintiff was asked to execute “spousal joinder” forms creating an indemnification obligation and release on the part of the plaintiff in favor of the“Anthony parties”.

The Cost court wrote:

“Preliminary objections were filed and granted by the court on grounds that no legal malpractice claims existed because: (1) there was no express contract for legal representation (“privity”) between the plaintiff and Pawk/Kotarba; (3) the plaintiff never sought advice or assistance from PawklKotarba; and (3) Pawk/Kotarba never expressly or impliedly agreed to serve as plaintiffs separate counsel. Likewise, the court held that the plaintiff could not “reasonably expect” that the defendants would describe the terms and legal significance of the various documents to be executed.

Further, the court wrote:

“In summary, plaintiff knew that Pawk/Kotarba had been retained by her husband Frank Cost and his brother Charles Cost to represent their interests and the interests of their business entities in the dispute with Anthony Cost and she knew that there was a settlement proposed by Frank Cost and Charles Cost that required the signatures of Charles’wife and herself Plaintiff also knew that Frank Cost and Charles Cost desired Frances Cost and plaintiff to sign the necessary documents. In this situation, there is no legal principle under which the lawyers retained would owe plaintiff the full panoply of obligations that a lawyer owes a client.

This appeal followed and raises, in essence, the yet unresolved question of, absent any written or oral contract of employment between counsel and complainant, what satisfies the “reasonable belief’ criterion to withstand preliminary objections and fill the traditional contractual void sufficient to hold counsel liable for legal malpractice? Resolution of the query is to take place on a case-by-case basis after a review of the pleadings against the backdrop of the applicable law.”

Attorney malpractice claims, whether civil or criminal, bear the traditional elements of a general claim of negligence--duty, breach,causation and damages. Bailey v. Tucker 621 A 108 (1993). Absent an express contract, an implied attorney-client relationship will be found if 1) the purported client sought advice or assistance from the attorney; 2) the advice sought was within the attorney’s professional competence; 3) the attorney expressly or impliedly agreed to render such assistance; and 4) it is reasonable for the putative client to believe the attorney was representing him. Sheinkopf v. Stone 927 F.2d 1259 (1stCir.1991).

Here, with regard to Haug’s Points Nos. 1, 2 & 3, the pleadings are clear that the plaintiff neither sought nor received “legal advice” or “assistance” from the defendant's Cost.

In this case, according to Attorney Fannick, Mr. Kerekes sought advice and assistance from Attorney Fannick. Criminal defense is within Attorney Fannick’s competence.