No contract means no claim for malpractice

An Alexandria lawyer will not have to face a $500,000 malpractice claim brought by the family of a late Northern Virginia woman whose estate tax return was filed late.

Although the lawyer met with the woman’s three adult children and said he knew and had worked with the man who had previously filed her taxes, there was no contract of representation formed, ruled a retired Norfolk judge sitting by designation.

After June West passed away, her three children – Lesley, Peter and John – communicated  with  Fairfax  lawyer  John  F. Rodgers throughout January 2010.

They asked Rodgers what “legal follow-ups” would be needed. At one point, Peter said that a man named John Renner would be doing his mother’s 2009 taxes, adding that he assumed that Renner would handle any estate taxes. Rodgers said he had worked with Renner and that he would give him a call to coordinate  filing  the  federal  estate  tax return.

Rodgers met with the three in February, telling them to gather all of the information needed to determine if the amount of assets in the estate would require a return. The parties did not discuss hiring Renner at the meeting. Retired Judge Charles E. Poston heard the case; in his opinion letter (VLW 017-8-062), he noted that Peter and John left the meeting believing they had hired

Rodgers as their lawyer. Neither Lesley nor Rodgers shared that belief, Poston wrote.

Right after the February meeting, Peter asked Rodgers to obtain an Employer  Identification  Number  for  the  family.

After Rodgers did so and sent the information to the Wests, they had no further contact until November of that year, when Peter asked by email, “What do we need to do next in order to start work on the estate taxes?”

Rodgers believed this note represented his hiring to handle the tax work, Poston wrote. Any estate tax return, or a request for extension, was due in September. A return was ultimately filed in March 2011. The Internal Revenue Service hit the estate for penalties and interest of more  than $335,000.

The family spent more than $113,000 in attorney’s fees litigating in Alexandria federal court, unsuccessfully, to get a reduction or partial abatement.

In 2015, Lesley, as administrator of the estate, filed a malpractice claim against Rodgers, seeking $500,000 plus prejudgment interest. Poston found that the Wests had not hired Rodgers until November when the lawyer received Peter’s email asking next steps on the taxes.

The February meeting did not evidence the meeting of the minds necessary for formation of a contract, the judge wrote.

Rodgers told the family what information was needed to determine if a return should  be  filed,  but  the  parties  did  not discuss scope of work or compensation.

There was no written agreement or letter.

“Most tellingly,” Poston said, there were conflicting opinions about whether Rodgers had been hired or not. It was significant, he found, that Lesley, the administrator and the only person with authority to hire a lawyer, did not think Rodgers had been retained.

“The absence of any understanding of what the relationship entailed is particularly damaging” to the plaintiff ‘s claim there was an attorney-client relationship, Poston wrote.

The judge said that when he held a hearing on the case in June, he noted that the West children “are sophisticated individuals who preside over a substantial estate.”

The fact that they did not have contact with Rodgers for nine months undercut their contention that they had hired him, he said. Indeed, Peter’s November email asked Rodgers what the family needed to do to start work on the estate taxes.

Finding no contract, Poston granted summary judgment for Rodgers.

Adam T. Kronfeld of Fairfax represented the family; Rodgers’ lawyer was J. Jonathan Schraub of McLean.