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FL: Attorney Filing Suit For Fees Due Results in a Legal Malpractice Suit

Sebree v. Schantz, Schatzman, Aaronson & Perlman, 963 So.2d 842 (2007).

FL: Underlying action seeking to recover attorney fees

Student Contributor: Farah Shahidpour

Facts: Client failed to pay Attorney fees claimed to be due. The law firm, acting self-represented, filed suit against its former client. The firm obtained a default judgment for the full amount of the sum claimed. During the next two months, the law firm located and garnished the funds in two of Client’s personal bank accounts. Client made a motion to set aside the default judgment on the ground of insufficiency of service of process. Agreeing with this procedural error, the firm joined Client in an “Agreed Order for Disgorgement of Garnished Funds, etc.” Client filed a legal malpractice counterclaim, and filed a motion to dismiss the action for failure to prosecute. This motion was denied.

Issue: Whether the trial court erred in denying an earlier-filed motion to dismiss the action for failure to prosecute?

Ruling: Yes. If the failure of counsel to properly discharge the duties owned to him by his client results in damage or loss of the cause of action sued upon, the injured party may seek recourse against his attorney. This should not work to the unjust prejudice of the opposing party. Because the law firm represented itself, it has no one else to blame.

Lesson: A party cannot be excused for failing to prosecute his cause of action as required by the spirit and intent of the law merely because his attorney failed to file necessary pleadings or take such action as was necessary to constitute affirmative steps in the prosecution of the

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Posted in: Alabama