Tim Dudley
A novel question in a legal malpractice case against a local law firm will be returned to U.S. District Court in Little Rock for further processing.
The 8th Circuit Court of Appeals in St. Louis kicked back the case involving the Little Rock law firm Mitchell Williams Selig Gates & Woodyard and a former client, Gerber Products Co. of Arlington, Virginia.
The ruling from the 8th Circuit means that Gerber could recover the more than $500,000 in attorneys fees it spent trying to fix Mitchell Williams’ alleged legal malpractice. But Gerber first has to prove the firm breached its duty to Gerber and that that caused Gerber to incur the attorneys fees.
And one member of the three-judge panel said he would have sided with Mitchell Williams.
The baby food products company sued the law firm and its partner Byron Freeland in federal court in Little Rock in 2019, alleging they mishanded privileged documents in a case from 2012. Back then, Gerber had hired Mitchell Williams as defense counsel in a Sebastian County lawsuit involving the expansion and redesign of a Gerber facility in Fort Smith.
In the first part of the discovery process, Gerber provided 2,700 pages of documents, including some that were privileged, 8th Circuit Judge David Stras found.
Privileged documents are protected in discovery, and Gerber cited the law firm’s failure to assert attorney-client privilege objections in discovery and production of the privileged documents as the grounds for the legal malpractice claim.
“Not long after, Mitchell Williams received a notification from the other side that no lawyer wants to get: some of the documents were privileged,” Stras wrote in his opinion, filed March 11. “Fortunately for Gerber, Mitchell Williams was able to get those documents back.”
But it was too late for the firm. The opposing counsel successfully argued that Gerber had already waived its attorney-client privilege by failing to invoke it in time and producing privileged documents, Stras wrote.
Gerber fired Mitchell Williams and hired new attorneys to try to repair the alleged damage.
Meanwhile, the company hired Little Rock attorney Timothy Dudley to handle its legal malpractice case against Mitchell Williams in federal court.
In federal court filings, Mitchell Williams asked that the malpractice case be dismissed before it went to trial.
It argued that to win in a legal malpractice case in Arkansas the plaintiff has to show that except for the negligence of the attorney, the result in the underlying lawsuit would have been different.
Mitchell Williams argued that Gerber couldn’t show that the Sebastian County suit would have been different because that case had not gone to trial when Gerber sued Mitchell Williams.
U.S. District Court Judge James M. Moody Jr. agreed with the law firm and dismissed the case in August 2020.
Dudley appealed Moody’s ruling.
Mitchell Williams’ “argument boils down to this: a client who incurs fees and expenses in an attempt to correct the damage caused by a lawyer’s breach of duty is out of luck,” he wrote in his appeal to the 8th Circuit. “There can be no recovery of such fees and expenses.”
In the 8th Circuit’s opinion, Stras said that the case required it to decide a novel legal-malpractice question under Arkansas law.
What proof must a plaintiff show to recover the cost of lawyers fees devoted to fixing its previous counsel’s mistakes? In dismissing Gerber’s case, the Little Rock court found that Gerber could collect only if it could prove better lawyering would have guaranteed a different result.
“We disagree,” Stras wrote for the three-judge panel at the 8th Circuit, which included Circuit Judges Steven Colloton and Ralph Erickson. Erickson said that he would have sided with Judge Moody’s decision.
Mitchell Williams’ Freeland declined to comment on the 8th Circuit ruling. He said that while he’s named in the filing, “I’m not involved in it.”
Mitchell Williams could ask the 8th Circuit for a rehearing of the case. If that’s granted, the 8th Circuit will issue another opinion. But if the request is denied, the case will return to federal court in Little Rock. As of Thursday morning, the firm had not filed a rehearing request.
Mitchell Williams was represented by attorneys Robert L. Henry III and R. Kenny McCulloch of the Barber Law Firm of Little Rock.
Sign up for Daily E-news
