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After Dodgers sale, Bingham question is still open

3/30/2012 COMMENTS (0)

When a group led by Earvin "Magic" Johnson agreed to purchase the Los Angeles Dodgers from Frank McCourt for $2 billion, the news surely spread quickly through the halls of McCourt's former law firm, Bingham McCutchen. But whether the sale, a record price for a major U.S. sports franchise, will keep McCourt from pursing malpractice claims against the firm is an open question.

As you may recall, Bingham partner Lawrence Silverstein drafted a post-nuptial agreement for McCourt and his now ex-wife Jamie in 2004. The agreement was intended to describe which McCourt property was owned together and which was owned separately. The agreement contained language that the Dodgers were "inclusive" of Frank McCourt's separate property, but when the husband and wife signed the final documents, not all of the copies included that language. Instead, some said the Dodgers were "exclusive" of his separate property, which would mean they were co-owned. At the McCourts' divorce trial in 2010, Silverstein said that when he noticed the discrepancy, he replaced the pages that said "exclusive" with those that said "inclusive," but did not tell the McCourts he had done so.

Jamie McCourt used the page the switch to question the validity of the agreement and the agreement was eventually thrown out. Late last year, Frank McCourt agreed to pay Jamie approximately $131 million to end her ownership claim of the team. (The term sheet of their settlement doesn't describe specifically what the $131 million is for, and once he pays that amount he'll pay no further spousal support, but the amount is over and above four houses, including furnishings and fixtures and $225,000 monthly in "temporary support" until the lump sum is paid.)

The term sheet indicates Jamie McCourt must be paid by April 30, 2012, so the announcement of the sale of the Dodgers came under the wire. The team is currently going through bankruptcy proceedings in Delaware, and the sale requires court approval. But, if finalized, McCourt, after paying approximately $500 million in debt and the monies owed Jamie, could walk away with more than $1 billion.

No matter what McCourt made on the sale, he can still argue he would not have had to pay Jamie a penny to give up her claim of ownership if Bingham attorneys hadn't acted the way they did, sai d Michael Downey of Armstrong Teasdale, who advises law firms on malpractice claims.

McCourt hasn't filed a suit. But there's little doubt that he -- and Bingham -- believe one is possible. In April of last year, Bingham asked a Massachusetts state court in Boston to make a declaratory judgment that it "met the standard of care" in drafting the McCourts' post-nuptial agreement. The judge was skeptical of forcing a client to litigate his malpractice claim before he chose to bring it and threw out the action. At the time, McCourt's lawyers at Bartlit Beck Herman Palenchar & Scott made clear McCourt believes he has reason to bring a suit, especially as Silverstein failed to reveal his page switch even after he knew McCourt's divorce lawyers, including a team from Susman Godfrey, intended to use the document at trial.

Of course, the fact that one can bring a suit doesn't mean one will be filed. It's up to McCourt whether pursuing a malpractice claim is worth the hassle of even more litigation. It might come down to how bad the blood still is between him and his former lawyers. From the sound of things, it's still pretty bad. "We continue to believe that Frank McCourt has suffered enormous damages as a result of Bingham's malpractice, that require compensation," Bartlit Beck's Glen Summers told On The Case.

Bingham McCutchen declined to comment. John Villa of Williams & Connolly, who represented Bingham in the Boston declaratory judgment action and who continues to represent the firm in the matter, also declined to comment.

(Reporting by Erin Geiger Smith)

Follow Erin on Twitter: @erin_gs 

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