A matrimonial lawyer and her Hackensack, NJ firm were hit with a $950k malpractice verdict late last month for their alleged role in enabling an international child abduction.

The suit, Innes v. Marzano-Lesnevich, was brought by Roy Innes, whose four-year-old daughter, Victoria, was removed from the United States to Spain, the mother’s native country, in January 2005 without his knowledge or consent. A jury found that Madeline Marzano-Lesnevich and her firm, Lesnevich & Marzano-Lesnevich, allowed the girl’s mother to get hold of her passport, which had been entrusted to the firm to prevent the child’s removal to Spain. The jury awarded $700k to Innes and $250k to Victoria.

An October 8, 2004 parenting agreement forbade Innes or the mother, Maria Jose Carrascosa, from taking Victoria abroad without the other’s written permission. It also required Carrascosa to turn over Victoria’s passport to Carrascosa’s then-lawyer, Mitchell Liebowitz, so it could be held in trust. Carrascosa handed over the passport but weeks later fired Liebowitz and retained the Marzano-Lesnevich firm.

Carrascosa then secured Victoria’s passport and flew her to Spain in January of 2005. She returned to the U.S. without Victoria in 2006 and is currently in prison for her conviction in December 2009 on charges of interfering with custody and contempt of court. Victoria, now 11, is being raised by her mother’s parents in Valencia, Spain, and Innes claims he has seen her only twice since the illicit removal.

New Jersey case law does permit legal malpractice claims by nonclients. (Petrillo v. Bachenburg, 139 N.J. 472 (1995).) However, the defense claimed no one asked Marzano-Lesnevich to be the trustee of the passport and she never signed an agreement to that effect. She did not even know it was being held in trust. But the court found that by her silence she could become a trustee. According to Marzano-Lesnevich’s husband and partner, Walter Lesnevich (who represented his wife at trial), the verdict sets out "a new standard of responsibility by a matrimonial lawyer to her nonclient." He says "everybody feels very sorry for the father so they just threw out the book and changed the law up and down." A Spanish court decree gave custody to Carrascosa, and even diplomatic efforts have failed to end the impasse. Lesnevich plans to appeal.

(An article appearing in the May 17, 2011 edition of the New Jersey Law Journal, an ALM Publication, was used as the sole source for this post.)

A little more than a year ago I criticized the Pennsylvania Supreme Court (highest court) for its decision in the case of Nationwide v. Fleming, which effectively ruled the attorney-client privilege applies only to information given to the attorney by the client.  Prior to the decision in Fleming, the statutory privilege had been broadly construed over time by Pennsylvania courts to encompass two-way communications between attorney and client – the way it should be.  The expectation was that the Supreme Court would take the opportunity in Fleming to definitively expand the privilege (subject to some other exceptions/limitations).  Instead, the Supreme Court’s ruling left the privilege completely in a state of limbo.
 
About six months ago I reported that the highest court in Pennsylvania heard argument in Gillard v. AIG, where the full court would be revisiting this critical issue.  A slew of amici filers including the Philadelphia County, Allegheny County (Pittsburgh) and Pennsylvania Bar Associations weighed in, all in support of a broader application of the privilege that would protect all communications between attorney and client.
 
I am pleased to report the Supreme Court, in a 5-2 majority opinion in the Gillard case, has held that “in Pennsylvania, the attorney-client privilege operates in a two-way fashion to protect confidential client-to-attorney or attorney-to-client communications made for the purpose of obtaining or providing professional legal advice.”  The majority agreed with other courts that have struggled with unraveling attorney advice from client input and have, in turn, stressed the need for greater certainty to foster frankness of communications between lawyers and their clients.
 
Thankfully, the court has finally given us some long-overdue clarity on this issue.
 
Supreme Court Justice Seamus McCaffery authored one of two dissenting opinions, criticizing the majority for “legislating from the bench.”  Interestingly, Justice McCaffery (when he was previously a Superior Court Judge) authored the intermediate appellate court opinion in Fleming which the Gillard decision effectively overrules.  With due respect to Justice McCaffery, I can’t agree with him on this one.  The Pennsylvania Supreme Court is charged with the responsibility of regulating my conduct as a lawyer.  Wouldn’t the privilege fall squarely within that responsibility? 
 
(An interesting story about McCaffery:  he originally gained fame in Philadelphia as "the Eagles Court judge," sentencing drunk Eagles fans in a makeshift courtroom in the bowels of the old Vet stadium.  This tidbit is often cited among the criticisms of Philadelphia sports fans.  This notoriety helped propel him to election to the Superior Court, and ultimately to the Supreme Court, where he now serves.)

Editor's note: the below is a response to this article from the Insurance Journal.

I agree with this article and the reasons it cites for increased E & O claims against lawyers.  Venturing outside core practice areas is always dangerous.  Client selectivity -- if we can afford it -- is perhaps the best method of avoiding errors and omissions.  Sticking to what you know is a great way to avoid claims, but so is avoiding the clients whom your gut tells you are going to pose problems.  Although shameless self-promotion was not the intent of this blog post, I recently authored an article on this topic which can be viewed here.

I've spoken with several lawyers recently with regard to fee collection matters prompting malpractice counterclaims, as it is a topic explored on lawyers professional liability insurance applications.  Lawyers feel discouraged from pursuing fees-- to which they are entitled-- for fear of an E & O claim.  It is unfortunate.
 
A big reason for E & O claims that I would add and wasn't addressed in the article is the general commoditization of lawyers.  Many lawyers have a hard time feeling like professionals anymore, when so much focus is on the business side and they're often viewed by society, clients and even insurance companies as necessary parts (evils?) of doing business.  In my opinion -- shared by others with whom I've discussed this -- this fosters E & O claims against lawyers, and has even eroded the sense of profession amongst members of the bar who maybe now feel more comfortable suing their brethren than attorneys of past generations.

Earlier this year I posted about a PA Supreme Court decision (Nationwide v. Fleming) that essentially ruled the attorney-client privilege in PA is a one-way street, protecting only communications from client to attorney.  In Nationwide, only 4 of the 7 justices participated.  Yesterday the highest court in Pennsylvania heard argument in Gillard v. AIG, where the full court will revisit this critical issue.  A slew of amici filers including the Philadelphia County, Allegheny County (Pittsburgh) and Pennsylvania Bar Associations have weighed in this time around, all in support of a broader application of the privilege that would protect all communications between attorney and client (with some common exceptions) -- the way it should be.  Here's hoping the Pennsylvania Supreme Court gets it right this time.

On Friday 1/29/10, the Pennsylvania Supreme Court (highest court) issued an opinion in the case of Nationwide v. Fleming affirming the decision of the Superior Court (intermediate appellate court), that ruled the attorney-client privilege applies only to information given to the attorney by the client.

The 2007 Superior Court decision (924 A.2d 1259) offered the following analysis:

"In sum, under our statutory and decisional law, attorney-client privilege protects from disclosure only those communications made by a client to his or her attorney which are confidential and made in connection with the providing of legal services or advice. The privilege extends to communications from an attorney to his or her client if and only if the communications fall within the general statutory definition. Consistent with this statute, the privilege protects confidential communications from an attorney to his or her client only to the extent that such communications contain and would thus reveal confidential communications from the client." More...