b Clark Writing Sample 1

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TO: Senior PartnerFROM: Junior Associate

CLIENT: B. Eagleton/S. Broderick (File # 35045-1)

RE: Application and Tolling of Statutes of Limitations for Attorney Malpractice Claim

Brought Under Contract and Tort Theories Arising out of Same Set of Facts

DATE: November 11, 2011

INTRODUCTION

We represent Brandon Eagleton and Suzanne Broderick in their legal malpractice lawsuit

against Plunkett & Tufnel, LLC (the Firm) and Ms. Plunkett and Mr. Tufnel individually. The

Firm previously represented Eagleton and Broderick in a personal injury case filed against

Daniel Roberson in the Pennsylvania Court of Common Pleas after they and Roberson were in a

car accident.

Eagleton and Brodericks claim stems from the Firms failure to respond to Robersons

Requests for Admission, which was due on April 1, 2009. Because of this failure, Roberson filed

a Motion to Deem Admitted on April 7, 2009. The court granted it on April 28, 2009. The

admissions cut to the heart of Eagleton and Brodericks claim against Roberson, and they

subsequently lost the case on summary judgment on June 8, 2009.

We filed a malpractice lawsuit in the Western District of Pennsylvania against the Firm

on May 17, 2011. Our lawsuit alleges that the firm breached both a duty to and a contract with

Eagleton and Broderick. We expect that the Firm will file a motion for summary judgment on the

grounds that Eagleton and Brodericks claims were filed outside of the applicable statute of

limitations.

This memo addresses whether the court will treat Eagleton and Brodericks contract

claim as a tort claim in order to apply a two-year statute of limitations rather than a four-year

statute of limitations.


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DISCUSSION

It is well-established Pennsylvania law that plaintiffs may bring malpractice claims in

both contract and tort. See Bailey v. Tucker, 621 A.2d 108, 112 (Pa. 1993). However, the

defense bar and some courts have argued that this flexibility allows plaintiffs suing for

malpractice as a tort to take advantage of the longer statute of limitations available for contract

claims through artful pleading.1

Joseph S.D. Christof, II, Brett W. Farrar & Michael P. Flynn,

Legal Malpractice Statutes of Limitation: Overview and Pennsylvania Case Study, 77 Def.

Couns. J. 485, 488 (2010). Authority in Pennsylvania has split over this very issue. Recent

Pennsylvania state courts have applied a contract statute of limitations to attorney malpractice

claims in civil cases, holding that contracts between attorneys and clients contain an implied

promise that the attorney will provide the client with services that are consistent with those

expected of the profession at large. See, e.g., Gorski v. Smith, 2002 PA Super 334, 812 A.2d

683, 694. Yet, some Pennsylvania federal district courts have broken with recent state courts and

applied a tort statute of limitations to attorney malpractice claims in the absence of evidence that

the attorney-defendant breached a specific contractual term or a specific client instruction. See,

e.g., Stacey v. City of Hermitage, No. 2:02-cv-1911, 2008 WL 941642, at *5 (W.D. Pa. April 7,

2008).

The Western District of Pennsylvania will likely refuse to apply the state court standard

and instead apply the specific instruction standard. Our clients can meet this standard and receive

the benefit of the four-year statute of limitations.

1 Attorney malpractice claims brought under a breach of duty theory are subject to a two-year

statute of limitations. 42 Pa. Cons. Stat. 5524 (West 2004 & Supp. 2011). Attorney malpracticeclaims brought under a breach of contract theory are subject to a four-year statute of limitations.

42 Pa. Cons. Stat. 5525 (West 2004).


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I. Pennsylvania Superior Courts Allow Plaintiffs to Plead a Breach of ContractEven When Defendant Has Not Breached a Specific Contractual Term

The Pennsylvania Supreme Court has never addressed whether plaintiffs suing attorneys

for malpractice in a civil context may bring a breach of contract claim in the absence of a

specific contractual breach. However, it has addressed this issue in a criminal context, holding

that an attorneys liability for breach of contract will be based on the terms of the contract.

Thus, if an attorney agrees to provide his or her best efforts and fails to do so, an action will

accrue. Bailey, 621 A.2d at 115.

Subsequent state appellate court decisions have almost uniformly applied Bailey in the

civil context. In doing so, they have taken the position that Bailey overruled the precedent that a

legal malpractice claim for breach of contract is limited solely to those instances in which the

plaintiff can show that the attorney failed to follow a specific instruction of the client. Gorski v.

Smith, 821 A.2d at 693 (overruling e.g.,Duke & Co. v. Anderson, 275 PA Super 65, 418 A.2d

613 (Pa. Super. Ct. 1980) on this issue). This proposition was replaced with the proposition that

every contract for legal services contains, as an implied term of the contract, a promise by the

attorney to render legal services in accordance with the profession at large. Id. at 695 (emphasis

added). In Gorski, the court looked outside of the contract and allowed expert testimony to

establish the standard of the profession at large. Id.

Although post-Gorski Pennsylvania state courts have generally applied this

understanding of the Bailey standard, see, e.g., Fiorentino v. Rapoport, 693 A.2d 208 (Pa. Super.

Ct. 1997), at least one Pennsylvania Supreme Court justice has indicated his discontent with the

rule and expressed a willingness to overrule Bailey on this issue. In Steiner v. Markel, 968 A.2d

1253 (Pa. 2009), the court reversed an appellate court thatsua sponte recast an attorney

malpractice claim brought under a breach of duty theory as a breach of contract claim. In doing


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so, the court declined on procedural grounds the dissents invitation to distinguish breach of

contract claims from breach of duty claims. Id. at 1257, n.9. In his dissent, Justice Saylor

declared the issue ripe for resolution, indicated his dissatisfaction with post-Bailey jurisprudence,

and suggested that a solution may lie in the way Pennsylvania federal district courts have

handled the issue. Id. at 1262 (Saylor, J., dissenting).

II. Post-Gorski Federal District Courts Have Followed the Pre-Bailey RuleInconsistently

Two Pennsylvania federal district courts continue to prefer the pre-Bailey rule, which

requires that a plaintiff show an attorney either ignored specific client instructions or violated

specific terms in a written contract. See, e.g., Stacey, 2008 WL 941642 at *5. However, these

courts have often applied the pre-Bailey rule in a way that leads to similar results as the Bailey

rule.

A. Since Gorski, the Western District of Pennsylvania Has Applied the Old Rule

In two unpublished cases from 2008, the Western District of Pennsylvania did not follow

the Bailey/Gorski rule, and instead required that plaintiffs show that attorneys breached a

specific contractual term. In Stacey, a man sued his attorney after the city condemned and

demolished his mothers home. See 2008 WL 941642, at *1. The court held no contract claim

existed, as the client retained the defendant-attorney without any explanation of the terms of the

alleged engagement. Id. at *7. In evaluating the claim, the court said it must look to the terms

of the contract allegedly breached and to the nature of the injury asserted. If the damages

requested stem from negligence . . . then the action sounds in tort and the two year statute of

limitations applies. Id. at *5.

A later decision softened the sharp edge of Stacey, however, by applying the longer

statute of limitations to a malpractice case where damages stemmed from the attorneys


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negligence but the attorney-client contract established the subject matter of the agreement. See

Gen. Nutrition Corp. v. Gardere Wynne Sewell, LLP, No. 2:08-cv-831, 2008 WL 3982914

(W.D. Pa. Aug. 20, 2008), rehg denied2008 WL 4411951 (W.D. Pa. Sept. 28, 2008). In

General Nutrition, an attorney provided bad advice to a company looking to end a contract with

another party. Id. at *1. Subsequent to the advice, the company was sued by the other party and

then forced to settle for a substantial sum of money. Id. at *2. Although adopting the specific

contractual term rule articulated in Stacey, the General Nutrition court allowed a breach of

contract case to proceed because [the parties] entered into a contract specifically to provide

legal advice about the termination of . . . contracts. Id. at *3.

B. The Middle District of Pennsylvania Has Applied the Old Rule Strictly

The Middle District of Pennsylvania has held that language that would presumably be

suitably specific under General Nutrition is not specific enough to state a contract claim. In an

unpublished opinion, the Middle District held that a plaintiff may not couch a tort negligence

claim as a contract claim simply to side-step the two-year limitations period. Knopick v.

Connelly, Civ. No. 09-1287, 2010 WL 411701, at *4 (M.D. Pa. Jan. 25, 2010), overruled on

other grounds, 639 F.3d 600 (3rd Cir. 2011). Without acknowledging Bailey or Gorski, the court

held that a complaint merely reciting the language specific terms of the contract without citing

which terms the parties breached, is insufficient. Id. at *5. In doing so, it held that complaint

allegations such as [plaintiff] retained [attorney] for a fee to represent him in his malpractice

action against [defendant] do not qualify as a specific contractual provision. Id. at *4.

C. The Eastern District of Pennsylvania Has Applied the State Court Standard

While Acknowledging Ambiguity

Recently, the Eastern District refused to dismiss a plaintiffs contract claimsua sponte,

even though it arose from the same conduct as its tort claim. ASTech Intll., LLC v. Husick, 676


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F. Supp. 2d 389 (E.D. Pa. 2009). Although it acknowledged a previous line of cases holding that

allowing such a contract claim to go forward would leave the two-year tort statute of limitations

a dead letter, it noted that Gorski overruled these cases and reasoned, there is no indication that

the Pennsylvania Supreme Court would rule differently on the issue than did the Gorski Court.

Id. at 398 n.9. In another case, the court noted the Bailey/Gorski standards ambiguity but

allowed a contract claim to proceed without discussion. See Bayview Loan Servicing, LLC v.

Richard Squire & Associates, LLC, No. 10-1451, 2010 WL 5122003, at *5 n.12 (E.D. Pa. Dec.

14, 2010)

III.

Pre-Gorski Courts Applying the Specific Instructions Test Have Done SoInconsistently

Even before Gorski, Pennsylvania courts applied the specific instruction/specific breach

test inconsistently.

A. Some Pre-Gorski Courts Applying the Specific Instruction Test Have BeenLenient

Prior to Gorski, the Eastern District of Pennsylvania followed the old rule, but allowed a

breach of contract claim to proceed based on a breach of a general provision.

It found the following contractual provision to be a contractually specific term: [The firm] will

provide the legal services reasonably required to represent you and will take reasonable steps to

keep you informed of progress and to respond to your inquiries. Davis v. Grimaldi, Haley &

Frangiosa, P.C., No. Civ.A. 97-CV-4816, 1998 WL 967516, at * 6 (E.D. Pa. Sept. 29, 1998).

B. Other Pre-Gorski Courts Have Applied a Strict Specific Instruction Test

A state trial court applied a far stricter standard to the specific instruction test, and limited

the application of the four-year statute to cases where an attorney agrees to specific instructions

that expand an ordinary professional duty. When an attorney failed to follow his clients


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instruction to either settle the case or prepare for trial, the court held that this instruction was

not the kind of specific instruction that creates a contract claim, and that a failure to follow the

instructions was instead a breach of duty. Jaworski v. Orton, Joyce & Dunlavey P.C., 45 Pa. D.

& C.4th 225, 228 (Ct. Com. Pl. 2000). In reaching this decision, the court held that the attorneys

failure was a failure to carry out an ordinary duty to clients and that the clients specific

instructions did not expand this duty when they did no more than instruct the attorney to do his

job. Id.

IV. The Court is Likely to Require A Showing that Defendants Breached aSpecific Contractual Provision

It is likely that the Western District will apply the standard that it applied in Stacey and

General Nutrition. In the absence of clear precedent, it will need to engage in the same

intellectual exercise that previous courts have in trying to determine how the Pennsylvania

Supreme Court might rule on this issue. In making such determinations, federal district courts

must look to, among other sources, state appellate courts and binding federal courts. See

Knopick v. Connelly, 639 F.3d 600, 606 (3d Cir. 2011). Eagleton and Broderick have a strong

argument that the court should follow Gorski. Arguably the Third Circuit has accepted the

holding of Gorski, citing it in dicta in an unpublished opinion. See Donnelly v. OMalley &

Langan, PC, No. 09-3910, 370 F. Appx 347, 349 (3d Cir. 2010). Moreover, since Gorski

Pennsylvania state appellate courts have followed this standard universally. However, as set out

above, federal district courts have been less consistent. Although the consistency of the

Pennsylvania lower appellate courts may appeal to the Western District, these decisions are not

binding. In fact, the Western District has not acknowledged Gorski in its recent decisions. Thus,

ultimately, the Western District will probably stick with its recent approach.


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A. The Court Will Likely Apply a Broad Version of the Specific Instruction Test,Which the Students Can Satisfy

While arguing that the court should accept the Gorski standard, we should not rest on it.

Rather, we can also prevail on the argument that the facts in our case satisfy the specific

instructions test as articulated by the Western District in General Nutrition. See 2008 WL

3982914, at *3. The record clearly shows that Eagleton and Broderick contracted with the Firm

for representation in their action against Roberson. In her deposition, Carrie Plunkett

unequivocally said that she agreed to represent Eagleton and Broderick in their action and

represented that her firm has a strong litigation practice. In his deposition, Eagleton said that

Plunkett assured them that the firm has a strong record in car accident injury cases. The students

can establish that their contract with the Firm was for specific representation in the personal

injury case, a task that fell squarely within the Firms professional competence. By failing to

adequately represent them, the Firm breached this specific contractual term. See Id.

B. The Court is Unlikely to Apply a Strict Version of the Specific Instruction Test,

Which Will Be More Challenging to Satisfy

The Western District is unlikely to apply the specific instruction test strictly. If it does,

we have less guidance. In that case, we would need to demonstrate that the Firm disregarded the

clients specific instructions.

Broderick and Eagleton cannot argue confidently that the Firms failure to follow their

instruction to provide regular updates was specific enough under a strict standard. Indeed, the

court will probably find that such an instruction is similar to an instruction for the Firm simply to

do its job. See Jaworski, 45 Pa. D. & C.4th at 228. Admittedly, the instruction is arguably

comparable to that in Davis, 1998 WL 967516 at *5, which held that failing to follow any

specific instruction, including an instruction for the attorney to remain in contact with his client,


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was enough to breach a contract. However, the injured client in Davis was specifically injured by

the attorneys failure to remain in contact, having incurred substantial financial obligations on

the basis of that failure. Broderick and Eagleton, in contrast, did not specifically identify in their

depositions any such injury. If the Western District insists on applying the strict Jaworski

approach instead of General Nutrition, it is unlikely it will accept such a general instruction

absent any evidence of injury arising out of the attorneys failure to comply with the instruction.

Broderick and Eagleton are more likely to argue successfully that the Firm failed to

follow their specific instruction to file a response to the Motion to Deem Admitted. The trial

court judge angrily noted this failure when he granted the motion. Unlike the students specific

instruction to keep them informed, this instruction was distinct and separate from the Firms

ordinary professional responsibilities. See Jaworski, 45 Pa. D. & C.4th at 228. As Plunkett

testified in her deposition, the Firm was not obligated to file a response to the motion. She said

many firms routinely elect to not respond in written briefs to similar motions and instead rely

solely on oral argument. Thus, unlike Jaworski, the instruction limited the Firms freedom to

choose not to file a written response and was more than simply directing the Firm to do its job.

Accordingly, a court will be more likely to find that this instruction is sufficiently specific for the

longer statute of limitations to apply.

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b Clark Writing Sample 1