Photo of Litigation Blog Alan J. Taylor ataylor@smsm.com
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Alan Taylor is a Shareholder in the firm's Michigan office and serves as Chair of the firm's Professional Liability Practice Group.  Mr. Taylor focuses his practice on …

Showing 10 posts by Alan J. Taylor.

PROFESSIONAL LIABILITY CLIENT ALERT: Attorney Liability Under the FDCPA

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The Fair Debt Collection Practices Act (“FDCPA”) was enacted to protect consumers from abusive and deceptive practices by debt collectors, and to protect non-abusive debt collectors from competitive disadvantage. United States v. Nat'l Fin. Servs., Inc., 98 F.3d 131, 135 (4th Cir. 1996). It is “a strict liability statute that prohibits false or deceptive representations in collecting a debt, as well as certain abusive debt collection practices.” McLean v. Ray, 488 Fed. Appx. 677, 682 (4th Cir. 2012). In addition to its prohibitions, the FDCPA delineates a number of required disclosures and procedures that must be followed when communicating with debtors. Attorneys and law firms who regularly engage in debt collection activities are subject to the requirements of the FDCPA. More »

PROFESSIONAL LIABILITY CLIENT ALERT: The Development of Michigan's Attorney Judgment Rule

The Michigan Court of Appeals, in a recent unpublished decision, Ali, et. al. v. Trivax, et. al., unpub op, Docket No. 343140 (March 21, 2019), clarified the scope of Michigan’s “Attorney Judgment Rule,” which can bar a client from suing his/her attorney in a legal malpractice lawsuit.  The Ali Court held that the Attorney Judgment Rule did not protect an attorney-defendant’s error in judgment when that tactical decision was not “well founded in law” adding that the question of whether the attorney-defendant qualifies for protection under the Attorney Judgment Rule is a question of fact for the jury and not the trial court (which significantly complicates relying on the Attorney Judgment Rule as a basis for summary disposition).  Ali, unpub op, at 6.   More »

An Examination of the Illinois Insurer-Insured Privilege: What is Protected and What is Discoverable?

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Introduction
In today’s litigation climate, cases often not only involve a plaintiff, a defendant, and their attorneys, but also insurance carriers who have vested interests in the outcome of cases involving their insured. Prior to and throughout the course of litigation, an insured will often not only communicate with their attorney, but also with their insurer. It is common, for example, that an insurer will take a statement from their insured while analyzing a potential claim. The threshold question of which components of an insurance claim file are discoverable is crucial in a litigated matter. This Article explores the Illinois Insurer-Insured Privilege. A misunderstanding of this privilege can have severe consequences, including the disclosure of material information that the parties believed, in good faith, was confidential, and would never be subject to production. More »

Attorney Termination of the Attorney-Client Relationship in New York

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A client has the unqualified right to terminate the attorney-client relationship at any time, with or without cause, regardless of whether a contract exists formalizing the relationship.  In re Thelen LLP, 24 N.Y.3d 16, 28, 20 N.E.3d 264, 270 (2014); Matter of Cooperman, 83 N.Y.2d 465, 472, 633 N.E.2d 1069, 1072 (1994).1 More »

PROFESSIONAL LIABILITY CLIENT ALERT: Application of Judgmental Immunity in Illinois

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Like other professional malpractice lawsuits, an Illinois plaintiff claiming legal malpractice against a former attorney must allege and prove that the former attorney owed the plaintiff a legal duty of care, that the former attorney breached that duty of care, that the plaintiff suffered an injury in the form of damages, and finally, that the former attorney’s breach of that duty proximately caused plaintiff’s claimed damages. Nelson v. Quarles & Brady, LLP, 2013 IL App (1st) 123122, ¶ 27. However, unlike other professionals, attorneys sued in legal malpractice lawsuits can assert an additional defense to shield themselves from liability—the Judgmental Immunity doctrine. Due to this common law doctrine, an attorney can seek the early dismissal of any legal malpractice claim where an unsatisfactory outcome/damages were allegedly caused by the former attorney’s good faith error in judgment in the underlying matter. More »

REAL ESTATE CLIENT ALERT: Michigan Court of Appeals Held That Non-Tenants May Not Sue Landlords Under Common Theories of Liability

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On September 20, 2018, the Michigan Court of Appeals in an unpublished decision, Morrish v. Sun Communities, Inc., highlighted an important argument available to landlords defending lawsuits brought by a non-tenant occupant of a rental unit who never signed the lease.  The Court in Morrish held that non-tenants, even if identified on the lease as authorized occupants of a rental unit, may not sue landlords under several different common theories of liability. More »

PROFESSIONAL LIABILITY CLIENT ALERT: Physicians Beware: New Jersey Supreme Court Erodes Self-Critical Analysis Privilege

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A recent New Jersey Supreme Court decision has eroded the long held self-critical analysis privilege applicable in New Jersey medical malpractice lawsuits. Health care facilities, physicians and their insurers will likely face increased liability exposure as a result of the Court’s decision in Bugaletta v. Garcia.[1]  Conversely, this decision should benefit patients alleging medical malpractice as they now have a means to obtain a summary of facts relevant to the alleged malpractice.    More »

LAWYERS PROFESSIONAL LIABILITY CLIENT ALERT: Protecting Against Legal Malpractice Counterclaims in New York

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An attorney must proceed prudently in commencing a fee claim, as a counterclaim for legal malpractice will often be asserted by a former, delinquent client. The following article summarizes the procedural mechanisms and litigation strategies an attorney can utilize to protect against the former client’s filing of such a counterclaim.[1] More »

PROFESSIONAL LIABILITY CLIENT ALERT: Collateral/Crossover Estoppel as a Bar to Legal Malpractice Claims

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Depending on the facts and issues involved in a legal malpractice claim, there are various defenses to be proffered. One potential defense is the doctrine of collateral/crossover estoppel, a “rule of issue preclusion”[1] that “precludes relitigation of an issue in a subsequent, different cause of action between the same parties when the prior proceeding culminated in a valid final judgment and the issue was actually and necessarily determined in the prior proceeding.”  Barrow v. Pritchard, 235 Mich. App. 478, 480 (1999).  Crossover estoppel is the application of collateral estoppel in a civil matter after a final determination was made in a prior criminal matter.  In Saad Akram Bahoda v. Steven M. Kaplan (Case No. 332313, July 20, 2017), the Michigan Court of Appeals affirmed the Macomb County Circuit Court’s grant of summary disposition for a defendant-lawyer applying the doctrine of collateral/crossover estoppel to hold that his former client’s legal malpractice claim was precluded as a matter of law. More »

REAL ESTATE CLIENT ALERT: Michigan Court of Appeals' Recent Decision Reviews What Constitutes a Fixture Under Michigan Law

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Image result for "real estate"As you may be aware, Michigan has very few cases involving an issue that frequently arises at the end of many tenancies – whether items such as heating system(s), window shades, awnings, storm doors, stoves, etc. constitute fixtures (that remain the Landlord’s property at the end of the tenancy) or personal property (that the Tenant may freely remove at the end of the tenancy).   On May 9, 2017, the Michigan Court of Appeals in Grand Traverse County Land Bank Authority v. Verizon Wireless and Great Northern Broadcasting System, Inc. held that that a broadcasting tower on a 14 acre parcel was a fixture that could not be removed .  A summary of this recent decision (and the Michigan Court of Appeals reasoning on what constitutes a fixture under Michigan law) is below.   More »

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