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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

DARLENE SMITH,

Plaintiff-Appellant,

UNPUBLISHED

July 26, 2018

v No. 337826

Oakland Circuit Court

HERTZ SCHRAM, PC and LISA STERN, LC No. 2016-152060-NM

Defendants-Appellees.

Before: MURPHY, P.J., and JANSEN and RONAYNE KRAUSE, JJ.

JANSEN, J. (dissenting).

I respectfully dissent. 

To succeed on her legal malpractice claim, plaintiff must establish: (1) the existence of an 

attorney-client relationship; (2) negligence in the legal representation of the client; (3) an injury 

that was proximately caused by the negligence; and (4) the fact and extent of the injury alleged. 

Simko v Blake, 448 Mich 648, 655; 532 NW2d 842 (1995). There is no question that an attorney 

client relationship existed between plaintiff and attorney Lisa Stern and Hertz Schram, PC. 

Accordingly, that element is satisfied. Likewise, if plaintiff were able to establish that Stern’s 

representation was negligent, plaintiff is able to show that she was injured by that negligence, as 

well as the extent of her injury. In other words, but for Stern’s negligent legal representation, 

plaintiff would have received the full value of what she was entitled under the property 

settlement agreement (PSA). 

With respect to the second element, I take issue with the majority’s conclusion that 

Stern’s representation of plaintiff was not negligent. First, in my view, the PSA is drafted 

broadly, and does not control or govern future discovery requests of any kind. By failing to 

return to family court following mediation to seek more information, Stern was negligent. 

Plaintiff had an ongoing interest in various business holdings, and was entitled to have Leider 

provide accurate valuations of those holdings before settlement. Stern should have advised 

plaintiff to walk away from the $65,000 figure offered by Leider in mediation and to return to 

family court to pursue the discovery matter further. Settlement should never have been a serious 

consideration, particularly given Stern’s own suspicions that there was something fishy about the 

2010 transaction where Leider allegedly sold 600 units, or 480,000 shares, of Destination Media, 

LLC stock. Specifically, Stern testified in her deposition that she found that transaction to be 

suspicious because Leider turned around and repurchased the 600 units for the same price, 
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$60,000, which is unusual given the fact that Destination Media, LLC was a growing company. 

Additionally, where Stern had already attempted to file a breach of fiduciary duty action on 

behalf of plaintiff, she should have been aware that because Leider held plaintiff’s interest in a

constructive trust, he had a fiduciary duty to continue to disclose information relating to 

plaintiff’s interests in the business holdings. Regardless of whether plaintiff’s divorce counsel 

neglected to obtain various stock certificates at the time of the divorce, Leider’s fiduciary status 

should have compelled him to disclose such information in good faith. Instead, Leider sought to 

block plaintiff’s access to pertinent information at every turn. Stern failed to obtain critical 

documentary evidence relating to the value of plaintiff’s interests by failing to pursue this matter 

further. In my view, this constitutes negligence. 

Additionally, Stern should have noticed that the threat made by Leider to not exercise his 

stock options was a red herring, and was intended to dissuade plaintiff from pursuing the matter 

further. Such a threat would have been highly suspect given that the parties were engaging in 

mediation, and should have tipped Stern off that Leider was attempting to put more pressure on 

plaintiff to give in and settle. I believe this also holds true for the threat Leider made that 

plaintiff may have had to pay some $320,000 if Leider did exercise his stock options. 

Next, with respect to the forensic CPA’s opinion not to settle, I agree with the majority 

that it appears Stern initially indicated to plaintiff that the forensic CPA’s recommendation was 

the best course of action: stand in the same shoes as Leider and take a “wait and see” approach. 

However, I again remain firm that Stern should have never presented settlement as a viable 

option. Moreover, the forensic CPA had advised Stern that numerous financial documents and 

various other pieces of documentary information were required to conduct a proper analysis of 

the companies and their worth. Although Stern requested this information, she never received it, 

due to Leider’s objections to the discovery requests. Leider’s reluctance to disclose information 

about the business holdings that plaintiff was entitled to, despite his status as a fiduciary, could 

easily be characterized as stonewalling, and should have put Stern on high alert.

Further, with respect to language in the settlement agreement that acknowledged that 

neither party had relied on any “representation, inducement, or condition not set forth in this 

agreement,” Stern should never have allowed it. The fact that Stern essentially released Leider 

from future liability for any material misrepresentations made in connection with the settlement 

agreement was negligent. Further still, Stern was negligent for allowing plaintiff to warrant that 

she was not entitled to obtain any information or documents not only from Leider, but also from 

the company in which plaintiff held an interest. Despite not being a party to the post-divorce 

proceedings, a representative of that company appeared before the discovery master at an in 

camera session that neither Stern nor Leider’s counsel were allowed to participate. However, 

any oral representations made to the discovery master were never supported by any writings or 

other documentary evidence, at least none that was available to plaintiff or Stern, and therefore 

were unreliable on their face. In fact, as a non-party, the company was extremely reluctant to 

disclose any financial information regardless of the fact that a protective order had been put in 

place. That such language was ever proposed should have been a red flag for Stern that 

information was being withheld and provided a basis for the non-cooperation regarding 

discovery. Essentially, such language immunizes a non-party from fraud, which should have 

been suspect to Stern, particularly in light of the 2010 transaction. In my view, advising plaintiff 

to agree to that language was negligent. 
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Finally, even if I were to accept Stern’s position that plaintiff simply wanted to settle in 

order to move on with her life and not spend any more time and money on litigation, it was 

negligent for Stern to present settlement as an option. Such advice was not sound, as it would 

have cost plaintiff nothing to “wait and see.” Regardless, even if plaintiff persisted, Stern should 

have had plaintiff sign a release, indicating it was her intention to enter into the settlement 

agreement despite her counsel’s advice to the contrary. 

I take issue with the majority’s conclusions about what would or would not have 

happened in the family court, or what would have happened if Stern had pressed the discovery 

issue further, as such conclusions call for too much speculation. I believe that a material 

question of fact for the trier of fact continues to exist regarding whether Stern’s representation of 

plaintiff was negligent. Accordingly, I would reverse the trial court’s grant of summary 

disposition in favor of defendants and remand for further proceedings. 

/s/ Kathleen Jansen