Pre-holidays Friday installment of “I beg to differ.”

So, it seems like I am begging to differ all over the place during the last week or so, but here comes another instance.

About a month ago, the Tennessee Supreme Court granted permission to appeal in a legal malpractice case, Story v. Bunstein, in which the plaintiff(s) suit against their lawyer was dismissed based on expiration of the one-year statute of limitations.  In Tennessee, our case law has long established – unlike some other jurisdictions – that the statute is not tolled for continuous representation.

There’s a law firm in Nashville – primarily focused on criminal defense matters – that operates a blog called the “Hot List” that weighs in with thoughts and predictions about what the Court will do on cases granted.  Here’s a link on what they have to say about this particular legal malpractice suit.

If you look at the link, you’ll see that they’ve offered this prediction on this case:

Ben thinks the Supreme Court will reverse. It would be bad policy to require clients to have to sue their lawyers while the underlying case is ongoing.

From the way that prediction is worded, it is unclear to me whether Ben has managed to read the Tennessee Supreme Court’s opinion in Carvell v. Bottoms.  Carvell dates back to 1995 and was cited in the Bunstein decision.  Via Carvell our state’s highest court already established its public policy decision that it is not bad policy to require clients to do exactly that.  Instead, the Court explained that the correct answer is to file the suit and then seek to have it stayed until the underlying matter is resolved.  In the words of former Chief Justice Drowota:

 Although we conclude that the rule [judicial estoppel] is not technically applicable, we nevertheless realize that having to maintain inconsistent positions in different lawsuits is somewhat anomalous. Therefore, we agree with the New Jersey Supreme Court that clients can avoid the “discomfort of maintaining inconsistent positions,” see Grunwald v. Bronkesh, 131 N.J. 483, 621 A.2d 459, 467 (1993), by filing a malpractice action against the attorney and requesting that the trial court stay that action until the underlying proceedings are concluded. See e.g., Grunwald, 621 A.2d at 466-67; Knight v. Furlow, 553 A.2d 1232, 1236 (D.C.App.1989). In this manner clients can, without conflict, continue to assert their interests in the underlying lawsuit, while preserving any malpractice action they may have against their attorneys.

Admittedly, being a lawyer who defends other lawyers in legal malpractice cases and I have successfully used Carvell to get cases dismissed for my clients on the basis of expiration of the statute of limitations, I have some bias on how this should play out.  In light of this well-established policy for more than two decades, I have to beg to differ on this one.  In addition to the ability to follow the procedure laid out in Carvell, clients also can negotiate tolling agreements if the lawyer doesn’t want the suit to be filed, stayed, and hanging over her head.  So, I don’t see the need to change policy at this point and while I’m not in the court predictions game would hope that the Court does not overturn Carvell.

And, as a completely unsolicited writing tip, if my assumption is incorrect and Ben has read Carvell then it would be advisable to say something more like “Ben thinks the Supreme Court will reverse.  Ben thinks the Court will decide to change its view on the existing policy requiring filing suit and then having the litigation stayed and will instead announce a belief that clients shouldn’t have to sue their lawyers while the underlying case is ongoing.”

Even if Ben had written it that way, I’d still beg to differ on the outcome, but at least if written in that fashion the prediction would read like the author knew exactly what they were weighing in on in rather than running the risk of sounding like they didn’t realize the scope of existing precedent.

(N.B.  This will be my last post before the holidays so, whatever you celebrate, I hope it brings you great joy!)

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