The ABA/BNA Lawyers’ Manual on Professional Conduct™ is a trusted resource that helps attorneys understand cases and decisions that directly impacts their work, practice ethically, and...
By Samson Habte
July 13 — Lawyers aren’t business consultants, but they are subject to malpractice liability if they fail to give a client sufficient legal advice about business-related risks to allow the client to make informed business decisions, the U.S. Court of Appeals for the Seventh Circuit held July 7.
In this case the district court overemphasized a blurry distinction “between business advice and legal advice” when it held that Katten Muchin Rosenman LLP couldn't be sued for malpractice for failing to advise hedge funds about the risks posed by loan arrangements with someone who turned out to be Ponzi scheme artist, Judge Frank H. Easterbrook said.
The decision revives a lawsuit alleging that the law firm committed malpractice while advising hedge funds on how to structure loans to Thomas Petters, a businessman who ultimately was convicted of “perpetrating [a] massive Ponzi scheme through the sale of notes” to investors.
Petters said the loans financed Costco Wholesale Corp. inventory and were secured by Costco's accounts receivable. But Petters—who insisted the funds not contact Costco to confirm the collateral—“never had any dealings with Costco,” according to the opinion.
A district court dismissed the malpractice suit after finding that the funds knowingly bypassed verification with Costco so as to obtain a higher interest rate.
But the appellate panel said the district court erred in concluding that the funds failed to state a malpractice claim because they “knowingly took a risk and cannot blame a law firm for failing to give business advice.”
The district court did not “identify any principle of Illinois law that sharply distinguishes between business advice and legal advice,” Easterbrook wrote. “It is hard to see how any such bright line could exist,” he added, “since one function of a transactions lawyer is to counsel the client how different legal structures carry different levels of risk, and then to draft and negotiate contracts that protect the client's interests.”
The malpractice complaint was filed by the trustee for Lancelot Investors Fund Ltd. and other entities that allegedly invested $2 billion with Petters and went bankrupt when his Ponzi scheme collapsed.
The district judge dismissed the suit after finding that the “the cause of the loss to Lancelot was the failure to demand verification of inventory,” and not “the form of the agreement” that Katten prepared.
“The failure was a business decision made [by Lancelot founder Gregory Bell], not the legal services performed,” the district court said.
But Easterbrook said the decision was problematic because it relied on facts extrinsic to the complaint and thus was not an appropriate use of Fed. R. Civ. P. 12(b)(6).
“The complaint alleges that Bell attributed the Funds' high return at least in part to the lack of direct verification with Costco and that he told some would-be investors about this tradeoff, but it does not allege that Bell was indifferent to legal advice concerning how to curtail risks given the no-contact constraint,” he wrote.
Easterbrook said the district court also failed to “engage the complaint's main contention—not that Katten was supposed to do something about Petters's no-direct-contact edict, but that Katten had to alert its client to the risk of allowing repayments to be routed through Petters, drafting and negotiating any additional contracts necessary to contain that risk.”
“As the complaint depicts matters, Bell did not appreciate the difference between funds from Costco and funds from Petters,” Easterbrook said. “A competent transactions lawyer should have appreciated that the former arrangement offers much better security than the latter and alerted its client.”
Easterbrook said the district court also erred in drawing a “bright line” between business advice and legal advice. “The district court did not cite any Illinois statute or decision holding that a transactions lawyer never needs to supply a client with legal information that affects the degree of business risk attached to a transaction,” he said.
“We take the point that a transactions lawyer's task is to propose, draft, and negotiate contractual arrangements that carry out a client's business objective, not to tell the client to have a different objective or to do business with a different counterparty,” the panel acknowledged, adding: “A lawyer is not a business consultant.”
“But within the scope of the engagement a lawyer must tell the client which different legal forms are available to carry out the client's business, and how (if at all) the risks of that business differ with the different legal forms,” Easterbrook stated.
“The Trustee alleges that Katten did not offer any advice about how relative risks correspond to different legal devices, and its complaint states a legally recognized claim for relief,” the court said.
The panel said the lower court also erred in relying on opinions holding that lawyers were not liable for failing to adequately advise sophisticated clients about risky transactions.
“The ‘needs and sophistication of the client' is a factual issue unsuited to a motion under Rule 12(b)(6),” Easterbrook said.
“The complaint does not tell us how sophisticated Bell and the Funds were about commercial factoring and the legal devices available for lenders' protection,” he added. “Nor does it reveal what Katten was hired to do—what kind of advice the Funds wanted, what kind of advice Katten promised to provide.”
“Whether the law firm has a defense—and whether any neglect on its part caused injury—are subjects for the district court in the first instance,” the panel said.
Judges William J. Bauer and Diane S. Sykes joined the opinion.
Williams Montgomery & John Ltd. represented Katten. Edward T. Joyce & Associates P.C. represented Peterson.
Copyright 2015, the American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)