Legal Malpractice Expert Opines on Lawyers’ Joint Representation

In this case, the plaintiffs allege that they were victims of legal malpractice through substandard legal representation in the course of a real estate transaction. Plaintiff property owners entered into a lease with a grocery store chain. Under the lease, the tenant was afforded an option to purchase the property for a set sum on a specific date. The option could be exercised at any time during the five 10-year renewal terms that followed. The lease was freely assignable by the tenant and the property could be sublet without the permission or approval of the landlord. The default provision of the lease states that where a tenant is “adjudicated bankrupt,” the landlord may enter and retake the property if the condition was not cured within 90 days.

The grocery store tenant assigned the lease to a big box retailer, who subleased it back to the grocery store. The grocery store later assigned its interest in the lease to a convenience store. The large retailer also assigned its interest in the lease to the convenience store.

Plaintiff property owners argue that the lease and option to purchase were not properly held by the convenience store, and that the retailer’s bankruptcy invalidated the lease, and that their attorneys were aware of these issues when they became involved in plans to refurbish the property. Plaintiffs allege that the grocery store chain possessed the option at all times. Further, plaintiffs argue that the issues with the lease created an adverse relationship that precluded the defendants’ subsequent joint representation of the plaintiffs and the convenience store in connection with the subdivision application.

Question(s) For Expert Witness

1. Was the lease in effect?

2. Did the defendants breach the standard of care owed to plaintiffs?

3. Did defendants’ conduct cause plaintiffs damages?

Expert Witness Response

The defendants have testified that they did not review the lease documents to determine whether the lease was enforceable, as that was not their assigned task. Based upon my review of the applicable documents and my knowledge and experience, it is my opinion that the lease was in effect and that the convenience store properly possessed the option on or before the defendants first involvement in the plan to refurbish the supermarket.

I am of the opinion that: (1) as the limited representation by the defendants of the plaintiffs with respect to the subdivision application ended, the defendants did not owe a duty of care to the plaintiffs with respect any subsequent issue, including the renewal of the lease and the sale of the property; (2) the defendants did not breach the standard of care with respect to their limited representation of plaintiffs in connection with the subdivision application; and (3) that the damages alleged to have been suffered by plaintiffs are not the result of the defendants' alleged conduct or omissions. In addition, I am of the opinion that the defendants did not breach any standard of care owed to plaintiffs at any time with respect to their alleged review of documents related to the “validity” of the lease at issue and the option to purchase. Specifically, after review of the supplemental documents it is my opinion that the lease and the option to purchase remained valid and enforceable and that the defendants' alleged conduct in this regard cannot be considered a proximate cause of any alleged loss incurred by plaintiffs.

Additionally, the defendants exercised the skill and knowledge commonly possessed by attorneys under similar circumstances and their actions were reasonable.