Legal Malpractice Update

MDTC Professional Liability Section

By: Michael J. Sullivan and David C. Anderson, Collins Einhorn Farrell P.C.[1]

michael.sullivan@ceflawyers.com, david.anderson@ceflawyers.com

Legal-Malpractice Update

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Attorney Defendant did not commit malpractice where no causal nexus existed between his advice and the financial damages resulting from the fire that destroyed Plaintiffs' restaurant, necessitating summary disposition under MCR 2.116(C)(10). Further, Plaintiff Shamoon's existing knowledge as to his illegal alien status precluded Attorney's advice from being the proximate cause of Plaintiff's removal from the United States.

Yousif v Attorney Defendant, unpublished opinion per curiam of the Court of Appeals, issued Feb. 18, 2016 (Docket No. 324097); 2016 WL 683137.

Facts: Plaintiffs Hanna Yousif and Behnam Shamoon were naturalized Canadian citizens who were born in Iraq and living illegally in Michigan. Shamoon contacted Defendant Attorney, who specialized in immigration, in 2002 to discuss visas to reside in the United States. Notably, in order to qualify for the visas that Yousif and Shamoon sought, they could not currently live in the United States. During their meeting, Defendant Attorney advised Shamoon that "he and his family could qualify for E-2 treaty investor visas if he made a substantial investment in an American business employing at least two full-time employees who were American citizens or permanent residents." No other substantive work came from the meeting and Defendant Attorney did not hear from Yousif and Shamoon for approximately three to four years after that. In the interim period, Yousif and Shamoon purchased a restaurant in Detroit without notifying, contacting, or discussing the investment with Defendant Attorney. Then, in 2006, Yousif and Shamoon again contacted Defendant Attorney about the investor visas. Defendant Attorney provided them with a list of documents that he needed to establish eligibility for the visas, including financial records and business documents verifying that the business employed at least two full-time employees. However, Yousif and Shamoon never provided complete documents, notwithstanding approximately five written requests from Defendant Attorney to do so over the course of three years, from 2006-2009.

In September 2010, the restaurant that Yousif and Shamoon purchased was destroyed by a fire. Yousif and Shamoon filed an insurance claim that was denied. Then, in December 2010, Plaintiff Shamoon was detained while trying to re-enter the United States after a visit to Niagara Falls, Canada. United States custom officials ultimately determined, after Shamoon lied about his reasons for entering the country, that he was an undocumented illegal alien residing in the United States. Thus, they excluded him from entering and barred him from reentering for five years.

Following the fire, denial of their insurance claim, and subsequent exclusion of Shamoon from entering the United States, Yousif and Shamoon sued Defendant Attorney for malpractice. They asserted both economic and noneconomic damages, claiming: (1) that their economic damages associated with loss of the restaurant were attributable to Attorney Defendant's advice to invest in a business in the United States, "even though they could not qualify for [investment] visas as long as they resided in the United States and were subject to immediate removal due to their unlawful status;" and (2) their noneconomic damages were caused by Attorney Defendant's "failure to advise them of the potential consequences for continuing to reside unlawfully in the United States and crossing the Canada-United States border," even though Shamoon lied about the reasons he was reentering because he knew that he could be removed.

Defendant Attorney moved for summary disposition pursuant to MCR 2.116(C)(10) on the ground that his alleged professional negligence was not a proximate cause of Yousif and Shamoon's losses. The motion was granted and Yousif and Shamoon appealed.

Ruling: The Court of Appeals affirmed the trial court's ruling, holding Attorney Defendant did not commit malpractice because his actions were not a proximate cause of Yousif and Shamoon's claimed damages.

The Court began its analysis with a thorough discussion and citation of cases addressing foreseeability. Of course, a plaintiff in a legal malpractice case must establish proximate causation, which is composed of the two separate elements of "cause in fact" or "but-for causation," and "legal causation," which is dependent on foreseeability. To establish legal cause, a plaintiff must show his injury was the "natural and probable result of the negligent conduct." The Court focused on the foreseeability, or lack thereof, between Attorney Defendant's advice and the injuries suffered. In doing so, the Court honed in on the concept of "intervening" or "superseding" causes, holding that an "intervening cause breaks the chain of causation and constitutes a superseding cause which relieves the original actor of liability, unless it is found that the intervening act was 'reasonably foreseeable.'" CitingAuto Owners Ins Co v Seils, 310 Mich App 132, 157-158; 871 NW2d 530 (2015).

As to Yousif and Shamoon's claim that they lost their investment in the restaurant because of Attorney Defendant's advice, the Court reasoned that Yousif and Shamoon's claim was based purely on but-for causation, "without consideration of whether a business loss caused by fire was a natural and probable result of [Defendant Attorney's] allegedly erroneous advice." Ultimately, the Court held the fire was the cause of Yousif and Shamoon's loss, and it was not the result of Defendant Attorney's conduct or other intervening causes that were foreseeable. The Court noted that Attorney Defendant had no role in the fire or the subsequent denial of Yousif and Shamoon's insurance claim. Neither was foreseeable under the circumstances:

It is significant to note that plaintiffs' reasoning would hold defendants liable for any adverse outcome that may result from investing in a business, including financial failure and physical proper[ty] damage, because 'opening a business always creates a risk that the owner may lose what he or she invested,' regardless of the investors' purpose in investing or the investors' residency status. However, contrary to plaintiffs' claims, these adverse events are not the probable and natural results of investing in a business, based on an attorney's advice, for the purpose of obtaining visas. [(Emphasis in original).]

As to Yousif and Shamoon's other theory that Shamoon's removal was caused by Attorney Defendant's lack of advice, the Court similarly found there was no proximate cause between the removal and Defendant Attorney's advice. The Court stated "the gravamen of plaintiffs' claim is a lack of knowledge regarding the consequences of their ongoing residence in the United States due to [Defendant Attorney's] drafting of the letter and failure to inform them of specific consequences of living in the United States." The problem, however, was that the "Record of Sworn Statement in Proceedings" taken when Shamoon was detained at the border demonstrated otherwise. Shamoon, instead of not knowing of the consequences of his continuing residence in the United States, confirmed that he knew that "(1) he did not have any legal status that would allow him to work and live in the United States; (2) he '[did not] have any legal papers' indicating a legal right to hold a permanent residence in the United States;" and (3) he made a false statement and told his brother to make a false statement to the border official. In light of such evidence, the Court found Shamoon's claim—that Defendant Attorney's advice led Shamoon to believe that he had legal authorization to enter the United States—was not supported by the record. "[Shamoon's] conduct revealed unequivocal knowledge of his illegal status and lack of proper documentation," and thus Defendant Attorney's advice could not be a proximate cause of his removal from the United States.

Practice Note: An attorney will not be liable for allegedly negligent advice that is the "but for" cause of a plaintiff's damages if those damages are not a probable and natural result of the advice.



[1] The authors acknowledge the valuable assistance of Jason M. Renner, an associate of the firm.

Categories: Volume 7 #1

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