2007-731, ESTATE OF MARCUS R. SICOTTE v. LUBIN & MEYER, P.C.

action arising from Marcus’ birth injuries. Marcus’ parents signed a fee L&M to represent their minor son, Marcus R. Sicotte, in a medical malpractice record. On November 12, 1998, Marcus J. Sicotte and Aletia Chase engaged The following facts were recited by the trial court or are supported by the

case against the defendant law firm, Lubin & Meyer, P.C. (L&M). We affirm. an order of the Superior Court (Houran, J.) dismissing its legal malpractice HICKS, J. The plaintiff, Estate of Marcus R. Sicotte (the Estate), appeals

Domaingue on the brief, and Ms. Domaingue orally), for the defendant. Tober Law Offices, of Portsmouth (Stephen L. Tober and Kelleigh L.

of Rochester (Stanley J. Mullaney orally), for the plaintiff. Alfred T. Catalfo, III, of Dover, by brief, and Mullaney & Richardson, P.A., to press. Errors may be reported by E-mail at the following address:

page is: http://www.courts.state.nh.us/supreme. ESTATE OF MARCUS R. SICOTTE

No. 2007-731 editorial errors in order that corrections may be made before the opinion goes Strafford

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as p. 2 Estate may choose to assert in a separate action.” and [was] not intended to be dispositive of any substantive claims that the governing attorney’s fees in the State of New Hampshire, to know rules.” The court noted that the dismissal was “on a procedural basis only,

services.

Estate by following the established rules, statutes and customs or appeal [Judge Nadeau’s order approving the fee,] as required by the court

Fauver

compensated on the basis of the reasonable value of his or her under an arrangement whereby the attorney would be right and affording the client an opportunity to retain the attorney

carry out its fiduciary responsibility to the injured child and his issue where “the Estate, then represented by L&M, did not move to reconsider exercised by the ordinary attorney in similar circumstances, to with the reasonable care, skill and diligence possessed and to represent the injured child, Marcus R. Sicotte . . . and his Estate

alleging that the firm breached its duties: The Estate then brought the instant malpractice action against L&M,

with his or her client without first advising the client of his or her

stating that it was not aware of any law that would permit it to reopen the fee twenty-five percent of a minor settlement except “upon good cause shown,” The Trial Court (, J.) dismissed the motion without prejudice,

the case. $750,000. Time estimates submitted to the court showed 302 hours spent on No attorney shall enter into such a contingent fee arrangement

hourly rate for L&M’s services, contrary to RSA 508:4-e, II, which provides: Super. Ct. R. 111(E)(2); and (2) give Marcus’ parents the option of paying an

parents that the court ordinarily will not allow an attorney’s fee in excess of percent contingent fee options that had been crossed out. return of attorney’s fees, alleging that L&M failed to: (1) inform Marcus’ approval if necessary.” Also appearing were provisions for forty-five and fifty Nearly two years later, the guardian of Marcus’ estate moved for the fee agreement was the handwritten notation: “in any event subject to court

the minor settlement and the contingent fee, and, accordingly, L&M was paid (Supp. 2007); Super. Ct. R. 111(E)(2). The Court (Nadeau, J.) approved both L&M sought allowance of a contingent fee of one-third. See RSA 508:4-e the hearing on the petition to approve the settlement, see Super. Ct. R. 111, The medical malpractice case settled in the amount of $2,250,000. At

of the gross amount collected. Appearing next to the forty percent figure in the agreement providing that L&M would be paid a contingent fee of forty percent not comply with the court’s order; and (5) failing to follow p. 3 what type of expert testimony” was required; (4) ruling that its disclosure did

disclosure was still inadequate. The trial court granted the motion. 3

court denied the motion, referring the Estate to its previous orders.

Fauver Houran to call an expert; (2) not allowing it to use L&M’s expert; (3) “refusing to clarify

with any portion of these orders will result in dismissal.” that “strict compliance with these orders is essential, and failure to comply expert report. L&M again moved to dismiss on the grounds that the expert of June 1, 2007, for disclosure of the Estate’s expert witness and cautioned “It is within the sound discretion of the trial court to dismiss the case for

Whalen of such an expert would be expected to encompass.” On June 21, 2007, the, 126 N.H. 88 (1985).

On appeal, the Estate argues that the trial court erred in: (1) requiring it

After an additional extension, the Estate timely disclosed its expert and defendant associated with that late disclosure.” The court set a new deadline

of expert the Plaintiff is required to produce and what specifically the testimony attorney’s fees in the medical malpractice matter of the injured child.” expert is necessary,” the Estate asked the court to clarify, inter alia, “what type and employees, and alleged losses including “paying an excess amount of court’s order. Noting that it “respectfully . . . continues to maintain that no The Estate filed a motion for, among other things, clarification of the required and it did not intend to use one. expert report by the deadline. The Estate responded that an expert was not

( opportunity to make a late expert disclosure, subject to bearing the costs to the that “the interests of justice will be served if the plaintiff is permitted the reconsideration, however, the court vacated its dismissal of the action, ruling expert testimony was necessary on the issue of causation. Upon The Trial Court (, J.) granted L&M’s motion, concluding that and L&M’s failure to train, supervise and properly instruct its agents, directors

moved to dismiss, alleging that the Estate had failed to disclose its expert or its clients of said rules, statutes and customs. Estate’s experts and release of expert witness reports. On December 26, L&M Fitzgerald, J.) set November 1, 2006, as the deadline for disclosure of the structuring conference order entered on July 13, 2006, the Trial Court The Trial Court (, J.) dismissed the Estate’s contract claim. In a

The Estate’s writ asserted causes of action in negligence, breach of contract

fees in the State of New Hampshire, and to fully inform and advise the established rules, statutes and customs governing attorney’s ordinarily be competent to make. p. 4 where determination of that issue is not one that lay people would

hold that expert testimony on proximate cause is required in cases

took legal fees to which it was not entitled.” essential to prove what the lawyer should have done. We thus that “causation is obvious and implied, i.e., the Defendant violated the law and

caused by that breach.” be established by other evidence, expert testimony may be question, i.e., did the Defendant violate the law?” The Estate further argues had not been negligent. Unless the causal link is obvious or can able to determine what result should have occurred if the lawyer

breach thereof.” “resultant harm legally caused by [the] breach,” id. at 527, the plaintiff must and everyday experience.” We disagree. Because a plaintiff in a legal malpractice action must prove

services to that client; (2) a breach of that duty; and (3) resultant harm legally

because it is “straightforward” and “simple”: “It simply involves a factual The Estate contends that this case does not require expert testimony for the plaintiff to establish causation. The trier of fact must be

Id. (quotations, citations, brackets and ellipsis omitted).

regarding the skill and care ordinarily exercised by lawyers and to prove a required where the subject presented is within the realm of common knowledge

exercise reasonable professional care, skill and knowledge in providing legal

In legal malpractice cases, expert testimony may be essential

expert testimony is also needed to prove causation. Id. We explained:

Id. at 528. We then determined that “in most instances,”

exceptional circumstances, expert testimony is necessary to inform the jury to be beyond the ken of the average layperson. Expert testimony is not Carbone, 151 N.H. at 527. We noted that “absent presented is so distinctly related to some science, profession or occupation as required in this case. “Expert testimony is required where the subject attorney-client relationship existed, which placed a duty upon the attorney to plaintiff must prove to establish legal malpractice, namely: “(1) that an expert testimony in legal malpractice cases. We first reviewed the elements a In Carbone v. Tierney, 151 N.H. 521 (2004), we explained the role of

(citation omitted).

We first address the Estate’s contention that expert testimony was not

58 (2003). unsustainable exercise of discretion. See Whitaker v. L.A. Drew, 149 N.H. 55, N.H. 332, 339 (1988). Accordingly, we review the court’s decision for an failure to comply with the court’s discovery order . . . .” Miller v. Basbas, 131 p. 5 Rather, the court concluded that the Estate had “disclosed no expert

one or more of the principals of the defendant professional corporation.”

plaintiff’s theory of causation” and that nothing in the record indicated to the obtained a similar settlement or verdict at a lower cost. an hourly basis, they would have retained alternate counsel who would have or (2) if L&M had informed Marcus’ parents of their right to hire an attorney on

average layperson.” distinctly related to . . . [the legal profession] as to be beyond the ken of the to rely on expert testimony presented by the defendant’s noticed expert and on defendant’s witnesses’ suffices to notify the defendant that the plaintiff intends indeed, the court “assume[d] without deciding that a plaintiff’s disclosure of ‘all 5

defendant’s expert and principal attorney will be directly counter to the

the trial court would not have approved a fee greater than twenty-five percent;

obtained and how much it would likely have cost on an hourly basis are “so

trial court, however, did not preclude the Estate from using L&M’s expert; that Lubin & Meyer be ordered to return the difference.

“counsel for the defendant asserts unequivocally that the testimony of the it can meet its burden on causation.” (Emphasis added.) The court noted that

by Marcus’ parents; and (2) what results another attorney would likely have (1) what fee the trial court would likely have awarded in the face of opposition had not been negligent.” (quotation and ellipsis omitted)). A determination of: Jury Instructions in New Hampshire, that neither party ‘owns’ a witness.” The paid on an hourly basis rather than on a contingent fee basis, and testimony. It argues that “[i]t is well-settled law and, in fact, part of the Civil independently audited for reasonableness, that the legal fee be trial court erred by not allowing it to use L&M’s expert witness to provide that ask that the time spent on the case by Lubin & Meyer be The Estate next contends that even if expert testimony is required, the

required.

fact must be able to determine what result should have occurred if the lawyer

Accordingly, to prove its case, the Estate must show either that: (1) if

standard and customary, plus interest, to the Estate of Marcus R. for legal fees and the 25% contingent fee which is fair, reasonable, difference between the one-third contingent fee which was taken I am asking the Court to order Lubin & Meyer to return the

L&M, as evidenced in Marcus J. Sicotte’s affidavit: amount of the settlement inuring to the Estate due to the excessive fee paid to cause of [the] injuries,” id. at 528. The injury claimed here is the reduced “provide expert testimony to establish that [the attorney’s] breach was the legal fee in accordance with applicable law.

p. 6 representation of a minor.

with the standard of care by making the disclosure and charging a representation from an attorney who would have fully complied a greater fee, the client is deprived the opportunity of seeking

standard of care by failing to make this disclosure and by charging

is kept from knowing that all attorneys in the state of New client a fee in excess of 25% under circumstances where the client designed to prevent an attorney from attempting to charge a minor grounds for each opinion.”

clarification absent an unsustainable exercise of discretion. As such, in a circumstance where the attorney breaches the

[The rules allegedly breached by L&M] are obviously and opinions to which the expert is expected to testify and a summary of the required to disclose, by the court-ordered deadline, “a summary of the facts In his statement of expert conclusions, the Estate’s expert opined: testimony is sufficient to meet its burden of proof; rather, the Estate was eventual disclosure of an expert’s report failed to comply with the court’s order. The Estate next contends that the trial court erred in ruling that its for such clarification.” We will uphold the court’s ruling on a motion for what type of expert testimony would be required despite the Plaintiff’s request discretion. We cannot find that the trial court committed an unsustainable exercise of show “what result should have occurred if the lawyer had not been negligent.” that expert testimony is required to prove causation because the Estate must Carbone, and to specific portions of two prior orders in which it had explained In its denial of the motion, the trial court referred the Estate to our decision in clarification and/or reconsideration for unsustainable exercise of discretion). Barkus, 152 N.H. 701, 705 (2005) (reviewing decision on motion for

The Estate next contends that the trial court erred by “refusing to clarify

Miller, 131 N.H. at 339. unsustainable exercise of discretion in consequently dismissing the case. See such a disclosure and we cannot find that the trial court committed an

of anticipation and prediction” of what the expert testimony will be. We burden” of proof, “[t]he court cannot dismiss the case prior to trial on the basis court declaring at trial that the expert testimony is insufficient to carry [its] The Estate nevertheless argues that while it “may run the risk of the contrary. p. 7 7

client that bears the burden to prove all elements of its claim.

case. established.”

but a legal malpractice case brought by the client. Thus, it is the plaintiff

similarly favorable results at a lower cost. We find no error. DALIANIS, DUGGAN and GALWAY, JJ., concurred.

the facts and of his legal rights with relation thereto.” Affirmed.

For the foregoing reasons, we affirm the trial court’s dismissal of this attorney-client relationship has commenced, when the position of trust is well relieve the Estate of that burden.

This case, however, is not an action by L&M to enforce its fee agreement,

it says nothing of the probability that other counsel would have obtained emphasis added).

legal rights.” proving that it is fair and reasonable, and that the client had full knowledge of that “any attorney seeking to enforce a contract of this kind has the burden of

Id. at 92 (quotations omitted). We therefore adopted the position

overreaching, particularly when the fee agreement was “executed long after the despite our opinion in mortgage securing a fee agreement. Id. at 89. We noted the potential for between Terzis and this case. In Terzis, the attorney brought suit to foreclose a Terzis, 126 N.H. at 92 (quotations omitted), we note an obvious difference attorney and client are a subject of special interest and concern to the courts,” While we reaffirm the observation in Terzis that “[f]ee contracts between agree. While the statement mentions a lost opportunity to hire other counsel, that the plaintiff show the resultant harm legally caused by the breach.” We plaintiff’s burden, to provide expert testimony in support of the requirement reasonable, and that the clients had full knowledge of the facts and of their burden of proving that their Contingent Fee Agreement was fair and level of scrutiny” and argues that “[p]ursuant to Terzis [,] . . . [L&M] has the Terzis, we “made it clear that cases involving attorney’s fees require the highest

Finally, the Estate argues that the trial court erred in dismissing the case

Court Rule 35(f) and this court’s prior orders as to the third part of the The trial court ruled that this disclosure did not “comply with Superior