At the risk of receiving a 15-page warning from from my law society insurance company, two things must first be noted:
- (1) Most lawyers are human; and
- (2) Humans make mistakes.
Why just the other day I was in chambers when my cell phone went off; me, a champion of cell phone control always scornful of colleagues whose cell phones go off in Court. And it was not even the cell phone ringing. Instead, it was an MP3 that blared out, in open Court. For the record: Let The Music Play by Shannon. You'd have to be dead or vegetative not to move some body part to that song.
Thank goodness the presiding judge still had his "recent appointee" good-naturedness. "Do not worry, Mr. Duhaime," he said to me, as I frantically tried to remove the battery from my cell phone. "It happened to me last week too."
And then there are the other type of attorney error; the kind which results in real loss to a client. Good lawyers can have their confidence fatally wounded by a single typo as can the estate or lives of a client who suffers the consequences of that error.
And then there are those who simply should not be practicing law.
2001 ... err ... umm ... 2000?
In February 2008, federal prosecutors in San Francisco charged baseball home-run king Barry Bonds with having failed steroid testing in November of 2001.
This was a sensation as nobody had previously known about any drug test - failed or otherwise - in "November 2001", a mere month after Bonds broke Major League Baseball's home run record.
But it was a typo - the proper year ought to have been 2000, not 2001. Bonds cried foul ball but to little avail. The mistake was quickly cleared up and the prosecution sidetracked the time it took to fire up good ol' Microsoft Word®.
Chief Justice Numerically Challenged
The will of the 6th Chief Justice of the United States Supreme Court had a fatal error. Salmon P. Chase, the testator (1808-1873), had his will witnessed by only two adults.
The law in the District of Columbia at the time of the Will required three.
The will was therefore null and void.
In spite of this attorney's error, the Salmon P. Chase College of Law at Northern Kentucky University was named in his honor.
The $7-million "Typo"
During his life and with respect to his estate, one of Andy Warhol’s legal advisers was Edward Hayes, a Manhattan lawyer and a former district attorney (and, apparently, the real-life inspiration for the character Tommy Killian in the book Bonfire of the Vanities).
One of the assets in the estate was Warhol's Interview Magazine, with a circulation of 160,000 by the time of Warhol's death. The estate sold it based on a down-payment with the balance personally guaranteed by the buyer, in a promissory note, payable not to the estate, but to a company called "Andy Warhol Enterprises Inc."
Hayes dissolved the company a week before the promissory note was signed but neglected to ensure that the personal guarantee was made payable to the estate.
In the result, it was made payable to an nonexistent company.
Hayes said it was just a typing error but the court struck the promissory note which then became unenforceable with the balance owing to the estate, some $7 million, lost.
A few years later, Hayes dodged a bullet when a New York judge inexplicably dismissed the case against him by a former client for malpractice based, in part, on the allegation that Hayes slept through his former client's deposition (called on examination for discovery in Canada).
The $2.3-million Comma
Rogers Communications Inc. and Alliant (previously New Brunswick Telecom), were Canadian telecommunication giants, the former a purveyor to the consumer, the latter owner of a network of some 100,000 telephone poles in Canada.
They came to an agreement but with a sleeper typo, and as follows:
"This Agreement shall continue in force for a period of five years from the date it is made, and thereafter for successive five-year terms, unless and until terminated by one year prior notice in writing by either party."
Rogers’ lawyers didn’t notice the comma anomaly and the company took it to be a locked-up 5-year deal.
Alliant took it for a deal that could be ended on 1-year notice even before the 5th anniversary; and they did so.
In 2006, the Canadian regulator, CRTC, deferred to "rules of punctuation" and ruled in Alliant’s favour, and obliging Rogers to yield to Alliant’s new rates, a lawyer blooper valued at $2.3-million.
A year later, the CRTC reversed itself and relied on French version of the contract to determine that it was a 5-year locked-in contract, reversing the onus of the attorney blooper on the shoulders of an anonymous Alliant lawyer.
Agent Keeps Secret From Principal
In 2006, Ms Rebecca Simpson’s defence attorney, Ray Bass, neglected to tell his client of a 5-year jail term plea bargain offered by the prosecution.
Unaware of any option, Simpson (pictured) put her defence to a Connecticut jury during a two-week trial. The jury found her guilty and gave her a 25-year sentence.
When the judge later found out about Bass’ omission, he dismissed the verdict and ordered a new trial. The prosecutor renewed the offer and Simpson promptly accepted it.
It’s hard to know who gets the "screw-up" award here: the prosecutor for offering a 5-year deal when the evidence apparently sufficed to convict, or Mr. Bass.
Ms Simpson is not one to elicit sympathy: the crime she fessed-up to was hiring a killer to murder her lover’s wife.
Fred and Evelyn Lettice relied on their solicitor to verify title of land they purchased near Camden, Australia in 1982.
That conveyancing solicitor failed to notice that the Lettices did not have access over a right-of-way to most of their 25-acre property. In 1994, the Lettices sued the lawyer and took independent action to force access to their partly landlocked property.
But the time-clock of litigation, called limitations had caught up to the Lettices and their first round victory turned into a second round defeat before the Australian Court of Appeal in a judgment characterized by a member of Parliament as:
"... the errors of an incompetent solicitor are cured after six years, as if by magic, provided that those errors are discoverable by a competent solicitor."
Salt in the wound: the law society’s insurer sought aggressively to recover the original judgment monies from the Lettices.
Will Law 101
In most common law jurisdictions, it is Will Law 101 that if a spouse of a beneficiary witnesses a will, the spouse loses her gift but the will is valid.
It was only a matter of time before this tripped up some lawyer, somewhere. Mrs. Hill, an Australian solicitor, entered the practice of law, wrote up a will for a testatrix giving a house to the testatrix’ neighbour and friend, a Mrs. Rona Van Erp.
The lawyer then asked Rona’s husband to act as a witness to the will!
When the testatrix died, Rona was dismayed to see that her gift failed - no house.
Solicitor Hill fought the negligence claim brought against her saying she had no duty to Rona; just to the testatrix. But - hello! - the Court held her to damages equivalent to the value of the real property lost to Rona by Mrs Hill’s error.
The old English law reports tell very sad tales of two wills flubbed by lawyers, each time costing the supposed-beneficiaries considerable assets.
In Miller v Travers (8 Bing. 254, 1832), the solicitor inexplicably forgot to add the words "and the country of Clare", where the testator owned real property. Instead, the gift referred only to the County of Limerick. The heir was furious but though the evidence of a clerical error was clear, the Court held clearly that to change a will by testimony would open Pandora's Box; that parol evidence may be helpful in interpreting a will, it couldn't be used to so widely circumvent a will.
A decade earlier, an English court heard the sad tale of the Countess of Newburgh. Again, the solicitor, a certain Mr. Butler, received instructions from the Earl to give the Countess a life estate in his holdings in the counties of Gloucester and Sussex.
But even though he had specifically instructed his lawyer to include the estate in Gloucester, the word "Gloucester" was omitted from the final draft signed by the Earl, which he did not read before signing, relying on his earlier instructions to solicitor Butler, Esquire. When the testator died, the error was discovered but it was too late. The case made the law reports as Earl of Newburgh v Countess of Newburgh, 5 Madd. 362 - (1820).
This one had a good ending though because though she lost revenues of some £14,000 annually from the Gloucester life estate, at least the Countess received full value of the life estate in properties held in Sussex.
Chief Justice Flubs His Lines
Like Chief Justice Salmon Chase a century before him (see above), the Chief Justice of the richest nation in the world fuddle-duddled his way through the oath of office of the incoming President of the United States on January 20, 2009.
The then-confused judge, John Roberts, couldn't muster:
"I will faithfully execute the office...".
Instead, he winged-it, and tried to administer the oath using the made-up words, which trying-to-become president of the United States Barack Obama faithfully repeated (Obama is a lawyer too):
"I will execute the office ... faithfully...."
Fearing the angst of constitutional law experts, the two quickly and more privately re-did the oath of the President the next day January 21, 2009.
Will Error Saved by Court
In 1994, Michael Cahill Senior told his solicitor that he wanted to make sure his estate went only to his wife and not to his nephew, Michael Cahill Jr.
The solicitor, a "Mr. O’Hara" concocted a joint tenancy transfer scheme to avoid probate taxes, a not-uncommon estate maneuver. But O’Hara got the legal descriptions messed up and neglected to include all the land owned by Cahill Senior, the testator.
When Mr. Cahill Sr. died, the discrepancy was discovered and Junior was pleasantly surprised to find that he inherited some of his uncle’s land through Irish intestate laws... until the Irish High Court jumped in and bailed Mr. O’Hara out by finding that a constructive trust existed saying:
"(Mr. Cahill Sr.) changed his mind regarding the disposition of his estate after death and that he took ... steps to give effect to his revised intention.... It follows that ... justice and good conscience requires that (Michael Jr.) should not be allowed to inherit the testator’s property ... and that his interest in remainder under the will should be deemed to be a"new model" constructive trust in favour of (Mr. Cahill Sr.'s widow, Mrs. Cahill)".
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- Re Eddie Hayes, Henry Lydiate "Art After Death: Famous Last Words", 1994 (artquest.org.uk) and Anthony Lin, "Malpractice suit Against Prominent Litigator Dismissed", the New York Law Journal, May 24, 2006
- Re Salmon P. Chase, Millon, Elmer, Humor In Or Of Wills, 11 Vand. L. Rev. 737 (1957-1958), at page 744.
- Re Rogers & Alliant, the Globe and Mail, August 6, 2006; Telecom Decision CRTC 2006-45 and 2007-75.
- Re Rebecca Simpson, Fort Worth Star-Telegram, August 2006; Wise County Messenger, August 19, 2006.
- Re Lettice, Parliament of New South Wales, Hansard, June 11 and August 28, 2002
- Re Mrs. Currey, Hill v Van Erp, 1997 HCA 9 (Australia)
- Re Cahill, Kelly v Cahill, 2001 IEHC 2 (Ireland) and RDG Online at ucc.ie (March 27, 2001)
ED NOTE: We would like to thank W.G. White for helping us correct an error in the summary at Will Error Saved by Court, above and since corrected; an error completely intentional, to ascertain the attention to detail being paid by users of Duhaime.org.