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This question is about a complex situation that I will try to keep as concise as possible. I was named trustee for a moderate sized trust. The attorney who drafted the trust did so in such a way as to alter the intent of the deceased. I believe he did this intentionally. The same attorney lied on the witness stand. His testimony was directly countered by a witness whose veracity was beyond question. The judge for the trial had already decided the outcome of the trial before it started. This is known because of statements he made to attorneys before trial. The judge also actively advocated on behalf of the plaintiff, was very biased as well. The net result was, I was removed as trustee. An accounting was ordered. The Judge retired. Jump ahead 18 months. A trial was set because of objections to my accounting. After 3 days of trial, the new judge over ruled all objections. It was determined that the attorney for the trust I had hired had given me poor advice, bordering on malpractise. My current trial attorney had, unfortunately, neglected to enter the exhibit that supported this conclusion as evidence. Even though the judge had the information, he said he was unable to use it as it was not entered as evidence. So I was surcharged these fees, which is a high 5 figure. This judge also stated that he was satisfied in all respects with my performance as trustee and expressed surprise that I was removed. Now, my current trial attorney , the one who neglected to admit the exhibit, wants to go after the original attorney for those fees on a contingency basis, his fee to be 50% of the recovered money. That would leave me with nothing except still owing the trust the other half of those fees. I don't know where to go with this. There is a lot more to the story, but I have tried to be concise. Any ideas?

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The judge for the trial had already decided the outcome of the trial before it started. This is known because of statements he made to attorneys before trial. The judge also actively advocated on behalf of the plaintiff, was very biased as well.

You can't sue any of the judges, who have absolute immunity from legal liability.

The attorney who drafted the trust did so in such a way as to alter the intent of the deceased.

Generally speaking, a trustee does not have standing to sue an attorney for failing to draft the trust in a manner that reflects the intent of the grantor of the trust. If anyone could, it would be the probate estate of the deceased.

The same attorney lied on the witness stand.

Statements made in a court proceeding are not actionable.

After 3 days of trial, the new judge over ruled all objections. It was determined that the attorney for the trust I had hired had given me poor advice, bordering on malpractise.

For this advice to be actionable, it would be necessary to show that you wouldn't have been removed and surcharged, but for the malpractice of your attorney. But, the attorney might plausibly argue that given the fact that the case was clearly prejudged, that the advice he gave you wouldn't have made a difference in any case.

My current trial attorney had, unfortunately, neglected to enter the exhibit that supported this conclusion as evidence. Even though the judge had the information, he said he was unable to use it as it was not entered as evidence. So I was surcharged these fees, which is a high 5 figure.

This attorney may have malpracticed, but it isn't a clear case. He probably could have made a motion to reconsider that could have remedied this failure to introduce evidence, or an appeal that might have been successful. On the other hand, he can argue that but for the first attorneys' malpractice, this wouldn't have been an issue, so liability should at least be shared if not entirely transferred to the first attorney, and that subsequent uncertain litigation options not exercised shouldn't count against you (or him).

my current trial attorney , the one who neglected to admit the exhibit, wants to go after the original attorney for those fees on a contingency basis, his fee to be 50% of the recovered money. That would leave me with nothing except still owing the trust the other half of those fees.

It is often the case in life that you can't be made whole from someone else's wrongs. Attorney malpractice cases are almost always of this variety, since you generally can't recover your attorneys' fees in an attorney malpractice case, only your damages. Someone, whether the current attorney or a third attorney, is going to charge a fee to sue someone for malpractice.

The benefit of going with the current attorney is that he is up to speed and is willing to take the case on a contingency basis, albeit a steep one. The downside is that the current attorney will not sue himself and may have liability as well, that the current attorney has made a key mistake once and could do so again, and that the current attorney may be conflicted out of the case as a potentially responsible party and as a potential witness at some point.

So, if you could find someone other than your current attorney to bring a malpractice case on a contingent basis, that would probably be better for you. Suing two attorneys instead of one also increases the likelihood that you can collect whatever judgments you secure. But, it may be hard to find someone to represent you in a case like that since the amount of time involved in a case like this for a plaintiff's attorney is very substantial and also requires considerable outlays for expert witness fees.

All of this said, however, attorney malpractice cases are very difficult to prevail in since you must prove not only malpractice but also a "case within a case" to show that you would have gotten a different and better result but for the malpractice.

Most of the time, you will end up settling for only a portion of your damages prior to trial to avoid the cost of litigation and the risk of a defense verdict. So with a 33% to 50% contingent fee, your net recovery might realistically often be in the 1/4 to 1/3 of your losses in a decent settlement equal to half of your actual losses.

A settlement like this is better than a poke in the eye with a sharp stick, but no attorney malpractice case is going to make you whole. And, you may decide that the time and distraction involved in litigating an attorney malpractice case may not be worth the trouble to you.

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    Surely the "absolute immunity from legal liability" enjoyed by judges applies only to their official acts.
    – phoog
    Jul 6 '18 at 3:16
  • @phoog Of course, but those are the only acts implicated in the OP. Really, acts connected to his judicial position, whether or not authorized by law. If the judge had accidentally crashed his car into somebody on the way home from work, or failed to pay his credit card bill, the judge could be sued for those things.
    – ohwilleke
    Jul 6 '18 at 14:14
  • "Whether or not authorized by law": Can you give an example of an act not authorized by law that would be connected to the judicial position? I suppose for example that you don't mean something like using the judicial office in connection with a fraud.
    – phoog
    Jul 6 '18 at 14:31
  • @phoog Suppose a judge orders someone arrested for direct contempt of court for conduct taking place outside the courtroom. This is beyond the judge's authority and ultra vires, but would still be subject to absolute immunity. Similarly, suppose the judge hears a case with a clear conflict of interest, again, absolute immunity. On the other hand, it is probably not within absolute immunity to slug or choke a fellow judge at a meeting of judges in the courthouse, as happens in the Wisconsin Supreme Court with some frequency, since that doesn't purport to be a judicial act.
    – ohwilleke
    Jul 6 '18 at 14:33
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At the outset, I don't understand why someone out there needs to vote down your inquiry. I can't comment on ohwilleke's answer because I don't know the standing and fiduciary duties applicable to wills & trusts litigation, but here are some remarks.

The same attorney lied on the witness stand.

Although the attorney's perjury is not actionable by a civil litigant, the doctrine of judicial estoppel might favor you in a lawsuit against the previous attorney if (1) the attorney's perjured testimony was relevant to the judgment entered against you, and (2) in your subsequent lawsuit against him he presents defenses which are inconsistent with his prior position. The details of your situation would determine the extent to which judicial estoppel is applicable.

My current trial attorney had, unfortunately, neglected to enter the exhibit that supported this conclusion as evidence.

Now, my current trial attorney , the one who neglected to admit the exhibit, wants to go after the original attorney for those fees on a contingency basis, his fee to be 50% of the recovered money. That would leave me with nothing except still owing the trust the other half of those fees.

That negligence suggests that your current attorney might not be necessarily pursuing your best interest (you don't mention whether the judgment is or will be appealed, nor the attorney's alleged reason for not pushing the court to enter the evidence).

Instead of giving him more business (now with a 50% contingency fee), I would seriously consider whether suing the previous attorney in pro per is feasible. A decision to litigate in pro per should not be made lightly: Pro se litigation requires a steep learning curve and significant dedication (to do legal research, and to draft motions/briefs). These requirements are often out of people's reach because of a person's job, family obligations, health factors, emotional tolerance, and other aspects. Only you and your family can determine whether this is a realistic option to you.

Regardless, beware that there is a statute of limitations (that is, deadline to file suit) for legal malpractice, just like in all other wrongs. The Michigan statute in that regard is MCL 600.5838b, although Michigan courts "have held that the applicable statute of limitations for legal-malpractice claims is two years", Bishop & Heintz, P.C. v. Finch, COA 327400 (unpublished, but cites legal precedent). The deadline probably varies in your jurisdiction. These Michigan cases reflect that a number of plaintiffs miss the statute of limitations in their legal-malpractice lawsuit.

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  • "I would seriously consider whether suing the previous attorney in pro per is feasible." I would never recommend that anyone do that. The procedural issues involved are insanely difficult in this very complex kind of litigation and it would require expert testimony from an attorney as well. Attorneys often screw up attorney malpractice cases. There is no way that someone without a lawyer could win such a subtle malpractice case.
    – ohwilleke
    Jul 6 '18 at 14:42
  • @ohwilleke The last link in my answer shows a number of Michigan cases about plaintiffs who retained an attorney for their claim of legal malpractice, only to have their case dismissed because of the statute of limitations. An attorney who fails this preliminary and relatively simple issue (statute of limitations) is unlikely to do any better on the much more complex aspects of that litigation. Depending on the odds of finding a competent lawyer, a diligent plaintiff might be better off by learning the law and trying this on his own. Jul 6 '18 at 18:02
  • I don't disagree that lawyers in malpractice cases screw up sometimes. I have a case in the office right now involving malpractice by a lawyer bringing a malpractice lawsuit. But, finding a competent lawyer, while difficult, is a hundred times more likely to succeed than a diligent plaintiff trying to learn the law and doing it on their own. There is a 95%+ chance of damaging malpractice by someone trying to represent themselves in such circumstances. This is like trying to do brain surgery on yourself without having gone to medical school because your last doctor screwed up.
    – ohwilleke
    Jul 6 '18 at 18:55

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