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Victory for lawyer reminds of the importance of engagement letters and written client communications

4/16/24

By: Donald Patrick Eckler and Joshua W. Zhao

In Fletcher v. Flynn, 2024 IL App (5th) 220818, the Appellate Court of Illinois, Fifth District analyzed a motion for judgment notwithstanding the verdict in the context of a legal malpractice claim that highlighted the importance of the memorialization of the scope of the representation and the need to memorialize advice given to a client. 

The plaintiff, David J. Fletcher, M.D., purchased 133 acres of property in Macon County, Illinois which he wanted to develop into a residential community. Fletcher discovered a natural gas pipeline easement on the property and received a letter from the easement holder regarding how the pipeline needed to be handled.  

Fletcher hired Edward F. Flynn and his law firm (collectively, “Flynn”) to provide legal advice and services related to the development. No written document, including an engagement letter, was created to memorialize Flynn’s representation. 

Upon Flynn’s recommendation, Fletcher hired Phillip Cochran as a surveyor and engineer to analyze the property and suggest how to develop it. Fletcher stated that he notified Cochran and Flynn about the easement. Cochran created a plat and development plan that was approved by the local municipality and the owners’ declaration was recorded. 

The HOA and homeowners objected to the lack of a legal description of the common areas in the owners’ declarations and objected to Fletcher’s failure to convey the common areas when promised. Although a corrected plat was provided, the HOA refused to accept the conveyance. Fletcher terminated Flynn’s services and afterwards, Fletcher was sued by the HOA for failure to deliver the common areas in a timely manner and for failure to meet Illinois Department of Transportation specifications for design and construction of roads, bridges, and culverts on Woodbine. 

Fletcher filed a legal malpractice action against Flynn and alleged that Flynn failed to advise him to incorporate the development project to limit his personal liability, and failed to investigate and advise Fletcher about the implications of the gas pipeline easement.  

At trial, Fletcher admitted he was aware of liability risks, aware that he could have incorporated Woodbine, and aware of the Panhandle easement and that he could not build on the easement area. Flynn testified that Fletcher advised him of the pipeline easement, that he had advised the plaintiff that the development was not a good or prudent business, and that the plaintiff should consider incorporation. The jury ruled in favor of Flynn, and the trial court denied the plaintiff’s motion for a judgment notwithstanding the verdict (JNOV).  

On appeal, the appellate court affirmed, holding that Fletcher failed to prove that Flynn’s negligence caused actual damages. Fletcher did not deny being aware of liability risks and acknowledged that he had previously incorporated his own medical practice. Since whether Flynn advised Fletcher about incorporation was subject to conflicting testimony, that was a credibility determination for the jury that was resolved in favor of the defendant. As to the pipeline easement, the Appellate Court held that the jury could have concluded that the plaintiff was aware of the easement prior to hiring the defendant and/or that plaintiff did not ask defendant to conduct research into the easement. As a result, JNOV was inappropriate. 

Although Flynn ultimately prevailed, this case highlights that attorneys can prevent disputes over the scope of legal work and legal malpractice claims by issuing engagement letters that, under Model Rule 1.5, can be specifically limited. Further, documenting in writing what legal advice was offered and the subject of discussions might have avoided this entire dispute or allowed the defendant lawyer to prevail on summary judgment. Instead, the defendant lawyer had to be solely reliant on his testimony at trial, which could have been disregarded or found not credible by the jury. 

For more information, please contact Donald Patrick Eckler at patrick.eckler@fmglaw.com, Josh Zhao at josh.zhao@fmglaw.com, or your local FMG attorney.