Federal District Court Allows Malpractice Claim For Unauthorized Practice Of Law

| Nov 24, 2013 | Firm News

The federal district court has denied defendant lawyers’ motion for judgment on the pleadings holding that issues of fact preclude dismissal of plaintiff’s legal malpractice claim for the authorized practice of law.

Plaintiff suffered medical malpractice when treated at the local VA hospital. He searched on the internet for attorneys to represent him. Defendants are Texas attorneys and their law firm who specialize in Federal Tort Claims Act (“FTCA”) claims. Their website states they represent clients regardless where they live and they handle claims in all fifty states. Plaintiff contacted defendants and entered into a contract to represent them on his FTCA claim. The contract was entered into in Rhode Island and governed by Rhode Island law. It included provisions that allowed defendants to withdraw for several reasons including if the administrative claim was denied. Defendants made an administrative claim and entered into settlement negotiations with the VA. They eventually reached a settlement to which plaintiff agreed. He released the government from liability.

Defendants promised plaintiff assistance with finding counsel to pursue claims against others who might be responsible for his injury. They put plaintiff in touch with the attorneys representing him in this claim. Unhappy with his VA settlement, plaintiff filed suit against defendants alleging legal malpractice and the unauthorized practice of law. Defendant first moved to dismiss for lack of personal jurisdiction, which the court denied. Dennett v. Archuleta, 915 F.Supp.2d 248 (D.R.I. 2013). Defendants then filed the instant motion for judgment on the pleadings based on their affirmative defense of the statutory and rule-based “safe harbors” for the unauthorized practice of law.

The court first reviewed the standard for granting judgment on the pleadings based on an affirmative defense. The First Circuit has said to grant such a motion the defense must: (1) be definitively ascertainable from the complaint and other allowable sources of information; and (2) suffice to establish the affirmative defense with certitude.

There is both a state statute and a state judicial rule prohibiting the unauthorized practice of law. Both the statute and the rule have provisions that permit out of state attorneys to practice in Rhode Island if they meet certain requirements. The statutory exemption applies when out of state attorneys are “temporarily in this state on legal business, or while permitted to conduct or argue any case in this state according to the rules of practice of the Supreme Court.” The Rhode Island Supreme Court Rules provide an exemption for out of state attorneys who provide legal services on a temporary basis in association with an lawyer who is admitted in Rhode Island and who actively participates in the matter or where the out of state attorney is assisting a lawyer who is authorized to appear in local proceedings or reasonably expects to be authorized.

The court said there were three issues of fact that precluded judgment on the pleadings. First, it was a factual question whether defendants’ representation of plaintiff in Rhode Island was “temporary,” considering they represented him from inception to conclusion of his FTCA claim. Second, it was a factual question whether defendants had held themselves out as admitted or entitled to practice law in Rhode Island. Third, it was a factual issue whether defendants had a reasonable expectation of admission pro hac vice given that the contract allowed them to withdraw if the administrative claim was denied. The court denied the motion.

Dennett v. Archuleta, C.A. 12-424S, 2013 WL 6069440 (D.R.I. Nov. 19, 2013)


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