AL: #1 Underlying employment discrimination action; #2 underlying legal malpractice action regarding #1.
Facts: Client retained Attorney #1 to represent him in an employment discrimination action in federal district court, however, that action was dismissed. Client subsequently retained Attorney #2 to pursue a legal malpractice action against Attorney #1 (“the first malpractice action”). Attorney moved to withdraw himself as Client’s counsel in the first malpractice case. Client pursued the malpractice action against Attorney #1 pro se. The first malpractice action was dismissed. Client then filed another malpractice action against Attorney #2. Attorney #2 filed a motion for summary judgment. The trial court granted Attorney #2’s motion for summary judgment. The appellate court reversed, holding that the discovery exception applied and that Client had filed the legal malpractice claim against Attorney #2 within the six-month window provided by that exception. Attorney #2 filed another motion for summary judgment, which was granted.
Issue: Whether the lower court correctly granted Attorney #2’s second motion to dismiss?
Ruling: Yes, because plaintiff was unable to provide sufficient proof to overcome summary judgment. Client had failed to produce substantial evidence indicating that, but for Attorney #2’s alleged breach of the standard of care, he would have prevailed in either his first malpractice action against Attorney #1 or the employment discrimination action itself.
Lesson: In a legal malpractice case, the plaintiff must show that but for the defendant’s negligence he would have recovered on the underlying cause of action. McDuffie v. Brinkley, Ford, Chesnut & Aldridge, 576 So.2d 198, 199 (1991). To overcome a summary judgment motion in a legal services liability action, a plaintiff must introduce evidence that in the absence of the alleged negligence, the outcome for the underlying case would have been different.
If the liability to damages of a legal services provider is dependent upon the resolution of an underlying action, the court shall upon the motion of the legal services provider, order the severance of the underlying action for separate trial. Ala. Code §6-5-579(a).