Legal Malpractice

Try, Try, Try Again in Legal Malpractice

By (Andrew Lavoott Bluestone)

ROBERTO BERAS, Plaintiff-Appellant, -v.- STEPHANIE M. CARVLIN, ROBERT C. GOTTLIEB, MARK STEIN, THE FIRM FRIED, FRANK, HARRIS, SHRIVER, AND JACOBSON, CHARLES A. ROSS, THE FIRM OF BRAFMAN & ROSS, Defendants-Appellees.;No. 07-2514-cv;UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT;2008 U.S. App. LEXIS 19805

is a prime  example of  pro-se litigation in legal malpractice.  It seems that there are two tiers of litigation; one has real substance, and is brought within the accepted norms and rules of legal malpractice litigation; the second is a pro-se tier where there is much procedural fuss, but little traction or success.  This case and its predecessor are examples of a pro-se case doomed from the start..

"On January 28, 2001, Beras was convicted of multiple counts of money laundering following a trial by jury, during which he was represented by Charles A. Ross. See United States v. Dinero Express, Inc., 57 Fed. Appx. 456, 457 (2d Cir. 2002). Beras then filed an action on November 14, 2003 (the "2003 Action") in the Southern District of New York (Charles L. Brieant, J.) against Ross for legal malpractice, breach of fiduciary duty, breach of contract, and fraud.

Adopting the report and recommendation of a magistrate judge, the District Court dismissed the complaint because (1) the "malpractice claim fail[ed] at the outset as [Beras] has not secured a reversal of his criminal conviction [as required by New York law];" [*3] (2) "[Beras] fail[ed] to show that [Ross] breached his fiduciary duty;" (3) the breach of contract claim was "not supported by any facts in the record" and was "completely without merit;" and (4) because Beras "simply repeat[ed] his [breach-of-duty] claims" as the basis for his fraud claim, his pleadings were "insufficient to support a claim of fraud." Beras appealed the dismissal of his complaint, and on June 20, 2006, our Court dismissed his appeal "because it lack[ed] an arguable basis in fact or law."

Three months later, Beras commenced the instant action (the "2006 Action") against Ross, Ross's law firm, the attorneys representing Beras's co-defendants, and one of their law firms. He alleged legal malpractice, a violation of his due process rights, breach of fiduciary duty, breach of contract, and fraud, all arising from the criminal proceedings that resulted in his 2001 conviction.

Because the 2006 Action constitutes an attempt to relitigate issues that were or could have been raised in the 2003 Action, it is barred by the doctrine of res judicata. See Rivet v. Regions Bank, 522 U.S. 470, 476, 118 S. Ct. 921, 139 L. Ed. 2d 912 (1998). HN1Res judicata applies when "1) the previous action involved an adjudication on [*4] the merits; 2) the previous action involved the [same parties] or those in privity with them; and 3) the claims asserted in the subsequent action were, or could have been, raised in the prior action." Monahan v. New York City Dep't of Corrections, 214 F.3d 275, 285 (2d Cir. 2000). Each of these elements has been satisfied here.

Full post as published by New York Attorney Malpractice Blog on January 28, 2009 (boomark / email).