An Attorney’s Failure to Disclose His Inadequate Investigation of a Complaint Does Not Amount to Constructive Fraud


It is not uncommon for legal malpractice plaintiffs to attempt to convert garden-variety legal malpractice claims into claims for constructive fraud. A fraud claim gives rise to the possibility of punitive damages, and might be seen as having more appeal to a jury. In an unpublished decision issued on August 24, 2010, the United States District Court for the Eastern District of California rejected a creative effort to plead a claim against an attorney as one for constructive fraud. The case is Tillman v. Tillman, 2010 U.S. Dist. LEXIS 92655.

The client had retained attorneys to bring a wrongful death action against a trucking company, after the client’s husband died in a single vehicle accident. Following a jury trial, the client obtained a judgment against the trucking company for $4.95 million. Later, the decedent’s son by a former marriage sued the client, the trucking company and the attorneys for having failed to join him in the underlying wrongful death action. The client then filed a third party complaint for constructive fraud (aka fiduciary fraud) against the individual attorney who had signed her wrongful death complaint. The client’s position was that the attorney should have recognized and disclosed to her that she could be held liable to an omitted heir for omitting that heir from a wrongful death action.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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