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Concealment

Lawyers will frequently seek to conceal their mistakes from their clients. Many clients feel that concealment alone is enough to win a case. It is not. Concealment is most helpful to a client’s malpractice case when the concealment made the client’s damages worse.

An example of this would be when a client had an opportunity to prevent or minimize the damage done by the lawyer’s malpractice, but missed the opportunity to take measures which would have prevented further damage, because the lawyer was concealing his or her mistakes. While concealment arises all the time, this set of facts occurs only occasionally. The Entrekin Law Firm has handled just a few cases with a fact pattern like this.

However, concealment can also be helpful to a legal malpractice case if the defendant lawyer is disputing the fact that he or she committed malpractice. There is a long line of Arizona cases that hold concealment is strong, if not conclusive, evidence that the lawyer believed they did commit malpractice – lawyers generally do not try to hide their triumphs. If there is credible evidence the lawyer concealed the alleged error, it will be hard for the lawyer to argue that it was not an error.

Concealment also becomes an issue when a lawyer tries to hide a conflict of interest from a client, for the lawyer’s benefit. This is relatively rare but unfortunately, it does occur. In Lietz v. Primock, 327 P.2d 288, 84 Ariz. 273 (Ariz. 1958), attorney Primock represented Lietz in her divorce case. When she fell behind on her mortgage, Primock told her to convey the house to third parties, for no payment of money and the third parties would help her by assuming the mortgage.

Attorney Primock concealed the fact that the third parties were his confederates and together, he and his confederates resold the house for a substantial profit. Lietz sued Primock for fraud and this case produced an unusual holding. While an expression of opinion cannot normally support a charge of fraud, the Arizona Supreme Court in Lietz v. Primock held that an attorney expressing their opinion to a client can be the basis of a fraud claim.

There have been only a handful of published decisions involving serious concealment by the attorney, because the cases are usually so bad for the defendant attorney that the attorney settles, rather than litigate and produce a published decision.