An Attorney Is Not A Subdivision And Relief Must Be Reasonable

In Veneri v. Pappano, there were two take away points, one for attorneys who work for the government and the other for clients who feel they have been wronged by their attorneys. 622 A. 2d 977 (Pa. Superior 1993).

The first lesson, for attorneys, is that they cannot avail themselves of statutory immunity under the Political Subdivision Tort Claims. Robert Pappano, Esquire, the defendant in this case was an employee of the Delaware County Public Defender's Office. He tried to claim, that due to this position, he was able to claim immunity.

However, the court pointed out that the Supreme Court held that once a public defender is assigned to assist a criminal defendant, his public function ceases and he is subject to civil liability for tortious conduct. This means that the attorney's position that he is immune to civil liability and, as such, that he cannot be sued for malpractice does not hold.

Practically speaking this makes sense. For an attorney to be granted immunity solely on the basis that he is a Public Defender or, by extension, a District Attorney, would mean that many of the representatives of our criminal division of the courts could never be held liable for their misconduct. Under this type of system, it is easy to see how the system would quickly become unsustainable. As such, it only makes sense to say that attorneys cannot be granted immunity in this way.

The second, and more important lesson, is for clients who feel they were wronged by their attorney. The court breaks down what a client needs to prove malpractice into these elements:

(1) the employment of the attorney or other basis for his duty to act as an attorney;

(2) the failure of the attorney to exercise ordinary skill and knowledge, and

(3) that such negligence was the proximate cause of damage to the plaintiff. Additionally, the plaintiff must be able to establish by a preponderance of the evidence that he or she would have prevailed in the underlying litigation.

The most important element, per the court, is the third, namely that ", the plaintiff must be able to establish by a preponderance of the evidence that he or she would have prevailed in the underlying litigation". In the immediate case, the court stated that Anthony Veneri, the plaintiff, could not prove that he would have prevailed. The court stated that not only did he fail to state a claim, but he does not even indicate the nature of his claims.

Veneri also does not show his likelihood of success but for the attorney's "malpractice", which is essential to making a legal malpractice claim. Further the court says since there wasa history of Veneri attempting to make the same type of appeals as the underlying matter involved in this case, namely that Veneri had filed three PCRA petitions and two petitions each under the PCRA and federal habeas corpus statutes. At the time that the judge made this ruling, all of those petitions have been unsuccessful. While it may seem unfair, this was used against the client.

The lesson here is that clients must clearly state the nature of their claim and show that they have good chance of success. This can be difficult sometimes, especially showing the chance of success because they simply may not have a full understanding of the chance of success unless they make the attempt themselves. However, this is what the court used to make the claim for damages seem even more speculative. Ultimately, it means that a client must have be able to state clearly exactly what the attorney did to be able to get damages for the malpractice.


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