Legal Malpractice
New York Attorney Malpractice Blog 
Legal Malpractice Attorney & Lawyer
Post Frequency: 1.8/day Last Entry: November 20, 2009 at 08:01:14 Recent Entries: 575
By Andrew Bluestone
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Its Not Legal Malpractice, but Breach of Fiduciary Duty When Defendant is Not Even an Attorney
Posted on November 20, 2009It does not happen often, but non-lawyers sometimes come to represent clients. An impostor? A simple clerical mistake? We don't know how it happened in this case, but in Natural Organics Inc. v Anderson Kill & Olick, P.C. ;2009 NY Slip Op 08472 ;Decided on November 17, 2009 ;Appellate Division, First Department "Plaintiff alleged that it retained defendant law firm to bring an action against an insurance company...
Legal Malpractice Fallout from the Modeling Industry
Posted on November 19, 2009Monique Pillard, president of Elite Models, is the plaintiff in this legal malpractice case, She was a defendant in a highly significant employment discrimination case revolving around an asthmatic worker who was fired, and the harassment and smoking that took place all around her...
Termination, Legal Malpractice and Quantum Meruit
Posted on November 18, 2009There are some basic rules in legal malpractice litigation about fees. One of these rules is that an attorney may be terminated at any time by the client, either for cause or without cause. A corollary rule is that when an attorney is terminated for cause, he is due no compensation...
Old and New Law in Attorney Fee Disputes
Posted on November 17, 2009New York traveled through a sea change in its attorney disciplinary and ethical rules when the new rules were enacted in April. Prior to the change, DR 2-107 did not require that a client be notified of the "percentage split" of fees between multiple attorneys working on a case; only the fact of multiple attorneys and fee sharing was required...
Divorce Allocutions and Legal Malpractice
Posted on November 16, 2009Legal malpractice plaintiffs who are suing for representation in a divorce action are routinely placed between a rock and a hard place, when asked at the settlement of their divorce action whether they are satisfied with attorney's representation. They are told to say 'yes" and often do, simply to end the torture...
Assignment of a Legal Malpractice Claim in the 2d Circuit
Posted on November 13, 2009Corporate clients assign causes of action between themselves on a fairly regular basis. Often, for purely economic reasons, in mergers, and in other corporate maneuverings, a cause of action will become one of many assets to be exchanged. Here, in NEW FALLS CORP...
Liens, Settlements and Legal Malpractice
Posted on November 12, 2009Yesterday we discussed medical treatment liens and when an attorney might become liable to pay them, even though the attorney did not deduct from the settlement proceeds when making the distribution. Today, Joel Stashenko in the NYLJ reports passage of a bill to eliminate "double dipping" by public employees in the disability area...
Liens, Attorneys and Clients: Who is Responsible?
Posted on November 11, 2009Personal injury law requires doctors, doctor reports, doctor testimony and medical treatment of the plaintiff-clients. Clients rarely have the means to pay for medical treatment after an injury, yet need it. Because of this need a system has developed in which plaintiff-clients go to medical providers, who provide medical treatment and file a "doctor's lien...
Legal Malpractice and Nazi-confiscated Art
Posted on November 10, 2009Any place there are disputes over anything, legal malpractice questions lurk. One is reminded of the New Yorker cartoon in which a 4 year old has dropped his ice cream cone, only to have an adult ask if he needs an attorney. in a far more serious vein, here is a legal malpractice case arising from return and reimbursement of Nazi confiscated artworks...
Being Pro-Se in a Legal Malpractice World
Posted on November 09, 2009One of the paradoxes of the legal malpractice world is the number of pro-se plaintiffs. While there are some pro-se defendants [both top-tier and totally uninsured], pro-se plaintiffs are often present. Here, in Walter v Jones, Sledzik, Garneau & Nardone, LLP ; 2009 NY Slip Op 08003 ; Decided on November 4, 2009 ; Appellate Division, Second Department we see a pro-se plaintiff who sues the law firm, only to fail at the very begining of the case...
Death, Residence and Fees in Legal Malpractice
Posted on November 06, 2009Cohen v Engoron, 2009 Slip Op 32521 is a fascinating look at the lower end of legal malpractice litigation. In this case, plaintiff is an incarcerated inmate who tried to sue his attorney for the return of $ 8500 in legal fees. While being incarcerated was painful for plaintiff, his attorney suffered a worse fate, dying about three months before the summons and complaint...
OK, It's not Legal Malpractice, but How Far May an Attorney Go?
Posted on November 05, 2009Topless photographs, sexual harassment, "heavy-handed" negotiations, emotional distress to highly pregnant women - it all seems to be out of a TV show. Nevertheless, these are the elements of Abrams v. Pacile, Supreme Court, New York County, Justice Tolub...
At the Crossroads of Tax Law§ 203-a and Legal Malpractice
Posted on November 04, 2009Dismissals are not always dismissals on the merits, and dissolved corporations are not always unable to sue in New York. In this legal malpractice case, we see the intersection of Chapter 11, Tax Law 203-a, CPLR 205(a) and Res judicata. In Moran Enters...
There's Legal Malpractice Danger When Taking Over a Case
Posted on November 03, 2009Attorneys regularly drop in and out of cases, and for the most part, there is no particular notice taken of the event. Here, in Soussis v Lazer, Aptheker, Rosella & Yedid, P.C. ; 2009 NY Slip Op 07823 ; Decided on October 27, 2009 ; Appellate Division, Second Department we see a wholly different result...
Legal Malpractice Law Review Blog
Posted on November 02, 2009http://www.legalmalpracticelawreview.com/
At the Intersection of Fraud, Fiduciary Duty and Legal Malpractice
Posted on November 02, 2009Plaintiff and a buddy go to attorney to start a business. Attorney is retained, and eventually Plaintiff is the odd-person out. Attorney's retainer agreement names only the buddy, and even though attorney sends letters to both Plaintiff and buddy, and creates documents which plaintiff and buddy sign, it is Buddy who comes out with 75% of the business...
Matrimonial Legal Malpractice and Summary Judgment
Posted on October 30, 2009Matrimonial legal malpractice is typically all about the money - and the money is usually about equitable distribution. Money, or having to give it to someone else drives people insane. in this case it apparently drove the husband to solicit the murder of his wife...
Judgment Calls in Legal Malpractice
Posted on October 29, 2009LOK PRAKASHAN, LTD. -v.- RALPH A. BERMAN, DAVIDOFF MALITO & HUTCHER, LLP, No. 09-0136-cv; UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT;2009 U.S. App. LEXIS 22988 is an example of the Court's continued romance with the concept that litigation is an art and not a science...
Can it Ever Be a Contract Action in Legal Malpractice?
Posted on October 28, 2009Way back when, there were different statute of limitation in legal malpractice cases which sounded in either tort [3 years] or contract [6 years]. The Court of Appeals approved, and it was the law of the land. As is its power, the legislature then passed CPLR 214(6) which created a single 3 year statute of limitations for legal malpractice actions, whether sounding in tort or contract...
Its Not Legal Malpractice, but it is Fraud
Posted on October 27, 2009In General Credit Corp v. Guidice 2009 NY Slip Op 32418(U), Supreme Court, New York County, Decided 10/15/09, Justice Kornreich, we one reason that the public has less than stellar views of attorneys. Here, evidence was produced to show that one attorney wrested control of the corporation and caused it to enter into adverse financial transactions that benefited the attorney, prepared agreements to give that attorney control of the board, obtained loans from a captive entity controlled by the attorney at interest rates above 20%, seized control of all the bank accounts, changed the locks in the office, fired the staff, interfered with its banking relationships and drove the company to file bankruptcy...
a $51 Million Turnaround in Legal Malpractice
Posted on October 26, 2009When is it the attorney's fault, and when the Client's ? That question is answered, in this particular situation, by the decision in Bernard v/ Proskauer Rose LLP. Client is an extraordinarily accomplished real estate transactionalist. In 1994 he joined the Trust Company of the West, as a portfolio manager for certain real estate investment funds...
Rent-Subsidized Apartments in New York and Legal Malpractice
Posted on October 23, 2009Jousting with the landlord over rent stabilized apartments is a uniquely NYC type of activity. Violations of the rent-stabilization laws may lead to treble damages, and tenants routinely litigate over the actual v. statutory rent, whether there has been an illegal rent increase, and over violations...
The Intersection of Judiciary Law and Collateral Estoppel
Posted on October 22, 2009Izko Sportswear Co., Inc. v Flaum ; 2009 NY Slip Op 04387 [63 AD3d 687] ; June 2, 2009 ; Appellate Division, Second Department is a somewhat famous case in Legal Malpractice. In earlier decisions, the Appellate Division determined that plaintiff stated a cause of action in Judiciary Law 487...
A Short Personal Note
Posted on October 21, 2009The folks over at Attorney.org recently contacted me about an interview for their website. If you don't know who they are, check them out. . In addition to legal news, they also highlight noteworthy attorneys from around the country. One of their upcoming features is a highlight of local Attorney Generals and District Attorneys...
Exclusions and Recission in Legal Malpractice Insurance
Posted on October 21, 2009A prime worry for the legal malpractice practitioner, on either side of the aisle, is whether there is legal malpractice insurance. For the defendant, it is paramount; for the plaintiff it is significant. Much thought has gone into how to determine whether the target defendant has adequate [or indeed, any] insurance, and planning has to go into the target's application for insurance...
The Outer Reaches of Breach of Fiduciary Duty and Legal Malpractice
Posted on October 20, 2009In PETER GIANOUKAS, DORIS GIANOUKAS and NICHOLAS TARSIA, Plaintiffs, - against - PETER CAMPITIELLO, ESQ., LEVY & BOONSHOFT P.C., DAVID M. LEVY, ESQ., STEPHEN BOONSHOFT, ESQ. and EAST WEST ACQUISITIONS, LLC, Defendants.;09 Civ. 1266 (PAC);UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK;2009 U...
When is a Settlement Not a Settlement in Legal Malpractice?
Posted on October 19, 2009In Santiago v Fellows, Epstein & Hymowitz, P.C. ; 2009 NY Slip Op 07393 ; Decided on October 13, 2009 ;Appellate Division, Second Department we see a rather stark and short decision from the Appellate Division after dueling summary judgment motions are decided in defendant's favor...
A Meritorious Counterclaim in Legal Malpractice
Posted on October 16, 2009In Pu v. Mitsopoulos, Supreme Court, New York County recalls what every CLE program tells its audience: Fee suits invite legal malpractice counterclaims. Invariably, the suing attorney says that the counterclaim has no merit, and that it is sour grapes, and motivated solely by a deadbeat who refuses to pay wholly justified legal fees for work well done...
Why was this Legal Malpractice Case brought in SDNY?
Posted on October 15, 2009In Acosta v. Falick & RochmanPLATZER, FALLICK & STERNHEIM, LLP, 05 Civ. 8254 (KTD)UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK; 2009 U.S. Dist. LEXIS 70878 we see a case brought pro-se and "in forma pauperis against his former lawyer, Barry M...
Mediation, Confidentiality and Legal Malpractice
Posted on October 14, 2009X is sued by defendants. He loses at trial using target attorneys. He hires new attorneys, mediates, settles, and assigns his rights to a legal malpractice action against his former [target] attorneys to plaintiff, who now sues target attorneys in the place of X...
The Kremen Legal Malpractice Saga Continues
Posted on October 13, 2009We reported on this case back on5/14/07 and again on 9/19/08. Today, the NYLJ reports that the Morelli law firm's attempt to garner disbursements from plaintiff has failed. From the decision of Justice Goodman: "The following illustrates why members of the public may hold cynical views about the legal profession...
Intentional Wrongdoing and Legal Malpractice
Posted on October 12, 2009Hinshaw reports an interesting South Carolina case in which plaintiff is estopped from a legal malpractice case against his attorney, on the basis that he is a wrongdoer, and one in in pari delicto may not recover civil liability. From the Hinshaw alert: "Plaintiff William Whiteheart sued his former law firm, Waller & Stewart, for malpractice...
Can Law Firms Ever be Sued in US DIstrict Court?
Posted on October 09, 2009Much of the law-related news is about multi-national law firms. Leaving them aside there is a serious question over whether our regular old national law firms can be sued in US District Court under diversity jurisdiction. Let's review the basics, as set forth in Lee v...
Mintz Levin and a Real Estate Legal Malpractice Case
Posted on October 08, 2009Sheri Qualters at The National Law Journal reports that Mintz, Levin and its attorney Steven Rosenthal have been sued for "allegedly misusing his position to enrich himself and a friend." Rosenthal, formerly an attorney there, has moved on to real estate investment and development at Northland Investment Corp...
Serial Plaintiff's Case Dismissed
Posted on October 07, 2009Legal malpractice is a filed associated with situations in which a person has lost their case. In real legal malpractice, but for the mistake of the attorney, there would have been a positive outcome. In a small subset of cases, however, there really is no merit to the action at all...
"Death Sentence Doc" and Legal Malpractice
Posted on October 06, 2009We don't understand why, but in Hashmi v Messiha ; 2009 NY Slip Op 06665 ; Decided on September 22, 2009 ; Appellate Division, Second Department the court places great weight on a mix-up between brothers. The basic claim is that plaintiff asked his attorneys to make a motion to dismiss would undoubtedly be successful...
When Does the Attorney become the Attorney in Legal Malpractice?
Posted on October 05, 2009In Berry v Utica Natl. Ins. Group ;2009 NY Slip Op 06935 ; Decided on October 2, 2009 ;Appellate Division, Fourth Department we see a situation in which plaintiff was suing Utica National Insurance Group and evidently there was communication between plaintiff and the defendant law firm...
Waggoner v. Caruso and Legal Malpractice
Posted on October 02, 2009Yesterday, we started to discuss Waggoner v. Caruso 2009 NY Slip Op 06739 Decided on September 29, 2009 ; Appellate Division, First Department ; (DeGrasse, J.) Today we discusse continuous representation, which, in this form, is a question of first impresssion, an issue taken up directly by Justice DeGrasse in the Appellate Division order: "Although we affirm Supreme Court's order, we do not do so on the ground that plaintiffs' legal malpractice claim against Pillsbury is time-barred...
An All Star Lineup in a Legal Malpractice Case
Posted on October 01, 2009This is a Politico - A List legal malpractice case. In Waggoner v. Caruso 2009 NY Slip Op 06739 Decided on September 29, 2009 ; Appellate Division, First Department ; (DeGrasse, J.) we see some of the nations biggest names. Besides being about a $ 10 Million loss, the players are all very recognizable...
A Primer on Attorney Fees and Counterclaims
Posted on September 30, 2009Justice Judith Gische of Supreme Court, New York County presents a primer on attorney fee litigation and the disposition of counterclaims for legal malpractice in Hurley v. Bulah Church of God in Christ Jesus, Inc. In this case the Church had gone through some hard times...
A Series of quasi-Legal Malpractice Cases in the US Supreme Court
Posted on September 29, 2009Today's NYLJ features an article by Marcia Coyle on a series of cases coming up before the US Supreme Court. Of the 6 cases to be heard [almost triple the usual number] at least four are legal malpractice scenario: Wood v. Allen is a death penalty case in Alabama in which a newly admitted attorney failed to investigate mental deficiency of his client in the death penalty phase...
Patents, Sanctions and Legal Malpractice
Posted on September 25, 2009We end this week with a look at a huge legal malpractice action just brought against Greenberg Traurig LLP, based upon patent work, and a more than $1 million judgment entered against their client. Widely reported yesterday, the complaint was set forth in the NYLJ...
What is a Borrowing Statute and How Does it Affect Legal Malpractice?
Posted on September 24, 2009Here is how a borrowing statute affects litigation and why a Pennsylvania statute of limitations applies to New York litigation. CPLR 202 requires that when a nonresident sues on a cause of action accruing outside New York, CPLR 202 requires the cause of action to be timely under the limitations periods of both New York and the jurisdiction where the cause of action accrued...
Mixed Result in Landlord-tenant Legal Malpractice Case
Posted on September 23, 2009Landlord hires big-time Landlord-Tenant attorneys in New York City, and expect that the attorneys are in fact bringing a series of eviction proceedings. This case alleges that they did not, yet charged fees, and misled the client. What is a client to do? In this instance they sued for legal malpractice, breach of fiduciary duty, fraud, breach of contract, etc...
A Particularly Shocking Judiciary Law 487 and Legal Malpractice Case
Posted on September 22, 2009Were one to read each of the 150+ legal malpractice cases decisions filed each year, one would see a wide range of attorney-client problems. Some are frivolous and some very serious. This case, DAVID GOLDSTEIN, Plaintiffs, - against - ALLEN S...
Whose Case is It in Legal Malpractice and Bankruptcy ?
Posted on September 21, 2009When one files a petition in bankruptcy, ownership of assets is upended. Some if not all assets of the debtor become part of the estate, and will be used to pay creditors. A current cause of action in legal malpractice, even if not reduced to a law suit is one such asset...
Judiciary Law 487 Cases Thrive This Year in Legal Malpractice Arena
Posted on September 18, 2009Since the Court of Appeals decided Amalfitano v. Rosenberg we have seen an upswing in reported successful Judiciary Law 487 cases. Here in Moormann v Hoerger ;2009 NY Slip Op 06518 ;Decided on September 15, 2009 ;Appellate Division, Second Department plaintiff loses legal malpractice, but avoids summary judgment on the Judiciary Law cause of action...
Overlapping Fraud and Malpractice Claims in Legal Malpractice
Posted on September 17, 2009In Tatum v. Oberg; UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT;2009 U.S. Dist. LEXIS 82208;September 3, 2009 we see a spirited discussion of the overlap between fraud claims and negligence, as well as a discussion of the overlap between breach of contact claims and negligence...
Opposing a Motion for Summary Judgment by Plaintiff in a Legal Malpractice Case
Posted on September 16, 2009In Felt v. Van Alstyne we see an interesting real estate-legal malpractice case, one which is, unfortunately, no so uncommon. Plaintiff owns 51 acres of property in Greene County and wants to sell a portion, 6.1 acres. The balance of 45 acres or so, which is unimproved, is to be sub-divided and kept...
The Increasing Importance of Breach of Fiduciary Duty in Legal Malpractice
Posted on September 15, 2009In law, sometimes a single case decision opens the flood gates. This is an oft-heard argument, with a rarely seen result, yet in legal malpractice the Ulico v. Wilson Elser, 56 AD3d 1 (1st Dept, 2008) case seems to have accomplished the re-awakening of "breach of fiduciary duty...
Irony In Legal Malpractice
Posted on September 14, 2009When practitioners in Legal Malpractice stay in the area long enough, older cases they handled come back to save or haunt them. A prime example is DeNatale v Santangelo ; 2009 NY Slip Op 06398 ; Decided on September 8, 2009 ; Appellate Division, Second Department ...
Further Lessons in Legal Malpractice from Kirk
Posted on September 11, 2009Continuing from yesterday, what is the relationship between legal malpractice litigation and breach of fiduciary duty? One reflexive answer is that the broad category of legal malpractice litigation, which requires a demonstration of deviation, proximate cause, "but for" causation and damages contains breach of fiduciary duty as a subset...
One Case With Several Lessons in Legal Malpractice
Posted on September 10, 2009Sometimes a court's decision will simply tell how the case came out. Sometimes a decision can teach a lesson; in this case one decision teaches several lessons in Legal Malpractice. KIRK , -against- HEPPT, 05 Civ. 9977;UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK;2009 U...
How Close is Privity in Legal Malpractice and Elsewhere?
Posted on September 09, 2009Sometimes we find a stimulating discussion of a principal of legal malpractice in decisions concerning other professions. In this case Sykes v RFD Third Ave. 1 Assoc., LLC ;2009 NY Slip Op 06387 ;Decided on September 8, 2009 ;Appellate Division, First Department ;Moskowitz, J...
Failure to Communicate a Settlement Offer and Legal Malpractice
Posted on September 08, 2009In "Boglia, v Greenberg, et al., ; SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT;2009 NY Slip Op 5278; 63 A.D.3d 973; 882 N.Y.S.2d 215; 2009 N.Y. App. Div. LEXIS 5183 the court writes: "The client retained the attorneys to represent her in a matrimonial action...
Charging Liens, How they are Calculated and How to Avoid Legal Malpractice
Posted on September 04, 2009In MELNICK v. CARY PRESS,;No 06-CV-6686 (JFB) (ARL);UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK;2009 U.S. Dist. LEXIS 77609; August 28, 2009, Decided we find an excellent discussion of the rules of attorney fee liens under the Judiciary Law...
Legal Malpractice Litigation over Scope of Work
Posted on September 03, 2009How much does one take on as attorney, and how does that scope of work affect legal malpractice litigation? In Douglas v. Dashevsky, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT; 2009 NY Slip Op 4187; 62 A.D.3d 937, ; 880 N...
Choice of Map is Judgment Call in Legal Malpractice
Posted on September 02, 2009What is obvious to one is a judgment call to another. in Noone v Stieglitz ;2009 NY Slip Op 01093 ; 59 AD3d 505] February 10, 2009 ;Appellate Division, Second Department we see a plaintiff involved in a motor vehicle accident. Defendant in that MV case claimed that it was forced out of its lane into plaintiff's lane by an errent cab...
Legal Malpractice Action Dismissed on Impossibility Grounds
Posted on September 01, 2009in Williams v Omrani & Taub, P.C. ;2009 NY Slip Op 51832(U) ;Decided on August 25, 2009 ;Supreme Court, Kings County ;Rivera, J. rendered a tri-partate decision, reviewing a dismissal motion pursuant to CPLR 3211(a)(1) (a)(5) and (a)(7)...
Bankruptcy and Legal Malpractice - III
Posted on September 01, 2009This is part 3 of a series based on the case of ASTON BAKER, -against- CHARLES SIMPSON, ESQ., WINDELS MARX LANE & MITTENDORF, LLP, STANLEY GALLANT, GALSTER CAPITAL LLC, GARLSTER MANAGEMENT CORP., ALLSTATE INSURANCE COMPANY, AND JP MORGAN CHASE BANK, N...
Bankruptcy and Legal Malpractice - II
Posted on August 31, 2009We reviewed this case in part yesterday. Here is the balance of the case, ASTON BAKER, , -against- CHARLES SIMPSON, ESQ., WINDELS MARX LANE & MITTENDORF, LLP, STANLEY GALLANT, GALSTER CAPITAL LLC, GARLSTER MANAGEMENT CORP., ALLSTATE INSURANCE COMPANY, AND JP MORGAN CHASE BANK, N...
Fees, Escrows and Legal Malpractice
Posted on August 27, 2009As we have reported before, sometimes legal malpractice cases arise by action of the plaintiff, and sometimes they arise after the attorney sues for legal fees. Courts often take the later situation as a "reflexive" or "defensive" maneuver, and may not always believe that the client is genuinely prosecuting a legal malpractice case so much as avoiding paying a fee...
Subrogation and Legal Malpractice - Part 1
Posted on August 26, 2009The New York Court of Appeals determined that a medical insurance provider has the right to intervene in a personal injury case to protect its right to subrogation and to assert "lien" on the proceeds of the case. In a well researched article, J...
Legal Fees, Malpractice Counterclaims and Jury Trials
Posted on August 25, 2009For as long as there have been attorneys, it seems that there have been fee disputes. Fee disputes and legal malpractice counterclaims go together like, well you fill in the simile...love and marriage, horse and carriage... Here is a case from Nassau which illustrates that question of whether defendant counterclaminant has the right to a jury trial, when plaintiff elects to have a bench trial...
Notifying the Target Attorneys's Carrier in Legal Malpractice
Posted on August 24, 2009Often, the only way plaintiff knows whether target attorney defendant has legal malpractice insurance is by the name of the attorneys who answer the complaint. If they are attorneys who normally are retaied by legal malpractice insurance carriers, then plaintiff knows there is insurance...
Can One Commit Legal Malpractice by Defining Perjury ?
Posted on August 21, 2009This is a sordid story of a professor who was barred from teaching at a university. He was accused of making rather coarse sexual comments to students, many of them. While litigating over his potential dismissal, a letter was sent to one witness with a photocopy of the definition of perjury and a suggestion of how she could purge herself of that problem...
What Are the Most Common Mistakes in Legal Malpractice ?
Posted on August 20, 2009Wisconsin legal malpractice insurers have published a breakdown of legal malpractice claims. Here, reported by Bonnie Shucha in the University of Wisconsin blog, are the most commonly sued for mistakes: Calendaring - 23% Failure to know or properly apply law - 14% Planning error in choice of procedures - 13% Inadequate discovery & investigation - 12% Failure to obtain consent/inform client - 6% Why calendaring? It is the easiest to see...
Collectibility in Legal Malpractice In New York
Posted on August 19, 2009There are conflicting rules in the 4 departments of New York. In legal malpractice, it is plaintiff's obligation to demonstrate that a hypothetical judgment could be collected in a legal malpractice case in the 2d, 3d and 4th departments. In the First Department, it is an affirmitive defense for defendant to prove...
A Frivolous Legal Malpractice Case
Posted on August 18, 2009Legal Malpractice cases are dismissed upon a motions on the pleadings. It happens not infrequently. It seems that legal malpractice actions are more scrupulously examined for the "but for" portion of the matter than might occur in other aras of the law...
Termination For Cause and Fees in Legal Malpractice
Posted on August 17, 2009GABRIEL D'JAMOOS, , v. MICHAEL GRIFFITH, No. 08-3668-cvUNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT;2009 U.S. App. LEXIS 17868;August 12, 2009, discusses termination for cause and the proofs needed: "Under New York law, an attorney may be dismissed by a client at any time with or without cause...
Liens in Legal Malpractice
Posted on August 14, 2009A common law retaining lien entitles the outgoing attorney to retain all papers, securities, or money belonging to the client that came into the attorney's possession in the course of representation, as security for payment of attorney's fees. Arising from Judiciary Law 475, it is enforceable only by retention of the items themselves and is lost if the file or documents are no longer in the attorney's possession...
How Much Discovery Can You Get in Legal Malpractice
Posted on August 13, 2009One answer to this question is found in Carl v, Cohen, NY Slip Op 31747(u), a decision by Justice Edmead. Here defendants Joel Cohen and Greenberg Traurig, LLP reached a "so ordered" stipulation concerning depositions of subsequent attorneys, against whom, presumably, defendants would either like to bring a third-party action, or to say that these subsequent attorneys could have saved the day, and who had a "last clear-chance...
Tax Advice and Matrimonial Legal Malpractice
Posted on August 12, 2009In Fielding v Kupferman ;2009 NY Slip Op 06151 ;Decided on August 11, 2009 ;Appellate Division, First Department we see a reversal of a dismissal in Supreme Court. The facts are uncomplicated. Wife sues for divorce and husband hires target attorney...
Blank Rome Settles $ 20 Million Bankruptcy Legal Malpractice Lawsuit
Posted on August 11, 2009From Gina Passarella at the Legal Intelligencer today: Blank Rome settles a huge legal malpractice law suit brought by a bankrutpcy trustee. "Blank Rome has entered into a $20 million agreement with the trustee of a former client that is now in bankruptcy to settle a complaint that alleged breach of fiduciary duty, professional malpractice and breach of contract claims against the firm...
The Elements of Legal Malpractice
Posted on August 10, 2009What are the elements of Professional Malpractice? Malpractice is a professional's failure to use minimally adequate levels of care, skill or diligence in the performance of the professional's duties, causing harm to another. In New York, attorney malpractice is defined as a "deviation from good and accepted legal practice, where the client has been proximately damaged by that deviation, but for which, there would have been a different, better or more positive outcome...
When is a Tort Complete?
Posted on August 07, 2009This article is about medical malpractice, but it applies to legal malpractice. Examples? When is a tax legal malpratice case complete? is it on the day of the mistake, on the day of the filing, on the last date which a return may be filed, or when the IRS determines there was a mistake? "Duty, breach, causation and injury: These are the traditional elements of a tort claim...
Electronic Discovery and Legal Malpractice
Posted on August 06, 2009Electronic Discovery is with us, has been regulated, and there are now standards for its use in litigation. Attorneys for clients now have to advise on how to store, produce, resist demands, and comply with the appropriate rules. Whenever there is general agreement upon a standard of practice, the question of deviation from that standard arises...
Tolling or Abatement of Statutes in Legal Malpractice
Posted on August 05, 2009Plaintiff has a right to sue target attorney, and then, for strategic reasons, agrees to put the case aside for the time being. Plaintiff and target attorney reach a stand-still agreement, but the question of tolling or abatement of the statute of limitations remains...
An Unexpected Recovery and Legal Malpractice
Posted on August 04, 2009Defendant hired plaintiff to represent him in a Federal Court law suit over NYC placard holders parking on sidewalks and curbs in front of his commercial establishments, depriving defendant of use of his properties. He retained plaintiff who started the Federal law suit, and was attorney until a settlement conference...
More Definitions and Legal Malpractice
Posted on August 03, 2009In MICHAEL S. JOHNSON, DONNA DYMKOWSKI, PATRICIA LONG-CORREA, , -against- NEXTEL COMMUNICATIONS, INC., LEEDS, MORELLI & BROWN, P.C., , which ws reviewed on Friday we see more of a clutch of definitions which are quite useful: Breach of Contract: To state a claim of breach of contract, the plaintiff must establish 1) the formation of a contract between the plaintiff and defendant, 2) performance by the plaintiff, 3) failure by the defendant to perform, and 4) resulting damages...
An Unusual Fee Arrangement and Legal Malpractice
Posted on July 31, 2009This case presents a most unusual fee arrangement and litigation strategy in which the attorneys took on a large number of discrimination cases against a single employer, fashioned a reverse payment strategy for themselves and then settled a large number of discrimination cases through arbitration and other ADR means...
Massive Fraud and Legal Malpractice
Posted on July 30, 2009In this highly complicated case, COBALT MULTIFAMILY INVESTORS I, LLC, , -against- MARK A. SHAPIRO, et al., Defendants.;06 Civ. 6468 (KMW) (MHD);UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK;2009 U.S. Dist. LEXIS 60481 we see what may turn out to be a blueprint for a legal malpractice niche...
The Well Pleaded Complaint and Legal Malpractice
Posted on July 29, 2009In ST. PAUL FIRE & MARINE INSURANCE COMPANY, v.SLEDJESKI & TIERNEY, PLLC,; No 08-CV-5184 (JFB) (ETB); UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK; 2009 U.S. Dist. LEXIS 61393; July 17, 2009, Decided we see an excellent discussion of the standard for a 12(b)(6) motion in this post-Iqbal world, as well as a discussion of legal malpractice insurance coverage for defendants...
Legal Malpractice and Fraud: The Relationship
Posted on July 28, 2009Fraud is often alleged in legal malpractice cases, for one of several reasons. One common reason is for a longer statute of limitations, 6 years rather than 3. For as long as there has been a different statute of limitations in fraud and tort, this tension has existed...
When Does the Legal Malpractice Statute Start to Run?
Posted on July 27, 2009When does the statute of limitations start to run in legal malpractice? Is it on the day that former attorneys are "substituted out" or perhaps on the day that successor counsel sign a retainer agreement? One answer is found in Fur Online v...
It's a 3 year Statute of Limitations in Legal Malpractice
Posted on July 24, 2009No matter how you phrase it, it's a 3 year statute under CPLR 214(6). Attorneys try to phrase it as contract, or breach of fiduciary duty, or misrepresentation, but so long as the wrong arises from a professional relationship between client and attorney its a 3 year statute...
Avoiding Legal Malpractice: A Settlement is a Settlement is a Settlement
Posted on July 23, 2009Actions have consequences, and in legal representation it may be malpractice, Here is an example. Say, for example that you have a robust asbestos practice, and in one of your many pending actions, you have one of many defendants file a motion for summary judgment...
Forgery Claims in a Legal Malpractice Setting
Posted on July 22, 2009Plaintiff loses a commercial law case, and sues his attorneys for legal malpractice. During discovery, while preparing responses to interrogatories, he discovers, and then sues over what he claims is a forged affidavit said to be prepared by the attorneys and unsuccessfully used in his case...
It's Today's Law, Not Yesterday's in Legal Malpractice
Posted on July 21, 2009Attorney takes on case for client, and the job is to check whether client can erect a Walgreens in Brooklyn. Attorney does research, and determines that the building and parking lot will be legal in that zoning. Attorney, however, fails to check if any new laws have been passed by the NYC Council on zoning recently...
Legal Malpractice and the Failure to File a Letter
Posted on July 20, 2009Legal representation in even simple matters can lead to unintended consequences. As an Example H & J Restaurant v, A & J Grand Enterprises and Leigh, 2009 Slip OP 21544, authored by Justice Edmead, demonstrates how a simple ministerial mistake can end up with a potential $ 400,000 loss, with later judgment against the attorney...
Foreign and Domestic Marital Law and Legal Malpractice
Posted on July 17, 2009Today we look at a second legal malpractice motion decided this week by Justice Emily Jane Goodman in Supreme Court, New York County. This case involves a divorce action between a US husband and a Czech wife, with immigration and fraud elements mixed in...
Waterfront Retaining Wall Leads to Legal Malpractice Retainer Issue
Posted on July 16, 2009In Supreme Court, New York County, Justice Emily Jane Goodman issued not one but two legal malpractice decisions this week. We'll cover Koch tomorrow. Today, Esterman v. Schwartz, New York Slip Op. 2009-31523. Plaintiffs are a subset of a group of owners of a waterfront Staten island development which suffered retaining wall damage in a storm...
A Combination of Misappropriation and Legal Malpractice
Posted on July 15, 2009Here, in GURVEY,, v. COWAN, LIEBOWITZ & LATMAN, PC., CLEAR CHANNEL COMMUNICATIONS, INC., INSTANTLIVE CONCERTS, LLC, LIVE NATION, INC., NEXTICKETING, INC. DALE HEAD, STEVE SIMON, and DOES I-VIII, INCLUSIVE, ; 06 Civ. 1202 UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK;2009 U...
Legal Malpractice and the Failure to Report a Settlement Offer
Posted on July 14, 2009In Boglia v Greenberg ; 2009 NY Slip Op 05278 ; Decided on June 23, 2009 ; Appellate Division, Second Department wee see a successful opposition to summary judgment based upon a claim of failure to report a settlement offer to plaintiff. "To sustain a cause of action alleging legal malpractice, a plaintiff must establish that the attorney "failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession," and that the attorney's breach of this duty proximately caused the plaintiff actual and ascertainable damages (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442, quoting McCoy v Feinman, 99 NY2d 295, 301-302; see Bauza v Livington, 40 AD3d 791, 792-793; Magnacoustics, Inc...
It's Not Always Res Judicata in Bankruptcy Legal Malpractice Cases
Posted on July 13, 2009There are two traps for the unwary legal malpractice litigant in Bankruptcy Court. One is the failure to list a potential or actual legal malpractice claim in the schedules, depriving the emergent litigant from bringing a legal malpractice case later...
Another Example of Estate Legal Malpractice Privity
Posted on July 10, 2009Legal malpractice in the estate and probate areas is limited by the concept of privity. Errors in the preparation or wills, and mistakes in the handling of probate proceedings are often precluded on one of two bases. The first is that a beneficiary may not sue for malpractice to the decedent, and the second is lack of privity...
The Texas Version of Privity in Legal Malpractice
Posted on July 09, 2009One of the beautiful things about the US is that every state has its own law. It was shocking to learn in Law School that events a few miles away, across a state border could be handled differently. Sure, other countries, but Connecticut? Here is a story from Law...
Criminal Law and Legal Malpractice Law Intersect
Posted on July 08, 2009Criminal law and legal malpractice law seldom intersect. One reason is an almost complete ban on criminal defendants suing their defense attorneys. In order to sue, one must show "actual innocence" which is customarily demonstrated by reversal upon appeal or exoneration...
Not Plaintiff's Attorney, But Still Owes a Duty in Legal Malpractice
Posted on July 07, 2009Privity of contract is an important element of legal malpractice. For policy reasons [and to avoid infinite and endless litigation] courts enforce a rather strict requirement that one may sue their own attorney, but not the opponent's in legal malpractice...
Three Tries in Criminal Legal Malpractice Case
Posted on July 06, 2009In SASH v. ROSAHN, ESQ., as the Supervising Attorney for the Parole Revocation Unit of Defendant The Legal Aid Society, UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK 2009 U.S. Dist. LEXIS 52480 June 16, 2009, Decided we see a three-pronged attack on plaintiff's criminal defense attorney, each of which fails...
An Interesting Excuse in Legal Malpractice
Posted on July 02, 2009Defendant attorneys in legal malpractice cases often have valid, technical, factual and compelling defenses. Sometimes they claim that the alleged malpractice is a question of judgment; sometimes the law suit is too late. In other examples, there is a less than clear relationship between the attorney and plaintiff, perhaps beneficiary to an estate or plaintiff sues an opponent's attorney...
Stunning Summary Reversal in Legal Malpractice Case
Posted on July 01, 2009In a short, one line reversal, the Court of Appeals put to rest a very old legal malpractice case, Gotay v. Breitbart.. The Court of Appeals simply wrote: "Plaintiff's legal malpractice claim was not brought within the applicable statute of limitations period, and defendants-appellants established as a matter of law that the continuous representation doctrine does not apply...
A Very Sad Outcome for Plaintiff in this Legal Malpractice Case
Posted on June 30, 2009Here is a blackletter rule: You must obtain consent from the Worker's Compensation carrier before settling a personal injury action in which there was WC payments. If you don't, the WC carrier takes a 'vacation" and the plaintiff stops getting money...
Is Legal Malpractice Different?
Posted on June 29, 2009Legal Malpractice is unique, in that lawyers write the rules for suing lawyers, and those cases are heard by lawyers. This situation does not obtain in any other field of jurisprudence. Here is an interesting case from Small Claims Court and a report from the NYLJ by Mark Fass...
Unjust Enrichment in Legal Malpractice
Posted on June 26, 2009Many times in legal malpractice cases, courts find causes of action to be duplicitive. Some of this arises from over-pleading. As an example, plaintiff may plead legal malpractice, negligence, breach of contact, breach of fiduciary duty, unjust enrichment, fraud, and so on Courts will trim these causes of action, all the while assuring plaintiff that any damages will still be permitted before the jury...
Plaintiff Continues with Legal Malpractice and Unjust Enrichment and Fiduciary Duty Claims
Posted on June 25, 2009In a well-reasoned opinion from the SDNY, Judge Koeltl determined that plaintiff may continue with three claims against the attorneys. In SMARTIX INTERNATIONAL CORPORATION, a.k.a. SMARTIX INTERNATIONAL, LLC, - against - GARRUBBO, ROMANKOW & CAPESE, P...
What Creates an Attorney-Client Relationship for Legal Malpractice Purposes ?
Posted on June 24, 2009Privity of contract is an essential in legal malpractice litigation. One may not sue the opponent's attorney; only one's own. What makes for privity of contract? As all know, no writing is necessary to create a contract. So, can there be privity of contract without a retainer agreement...
Attorney and Client Battle over Fees and Legal Malpractice
Posted on June 23, 2009So often, the practice of law seems to have devolved into an attorney v. client battle over the work and fees. Here in Morelli & Gold LLP v. Altman, NY Slip Op 31492(U) we see a large scale battle over a child support/custody case in which there has been litigation, fees, fee dispute, trial de novo, counterclaims and appeals...
Attorney's Representation and Comments not Legal Malpractice
Posted on June 22, 2009Legal Malpractice litigation is a world apart from the rest of regular litigation ; it has its own rules, it has its own prinicipals, and is the sole set of rules written by attorneys to regulate attorneys. Criminal legal malpractice is a world within a world...
"Unsettled Law" and Legal Malpractice
Posted on June 19, 2009Attorneys deal in areas of well settled law and in areas of "unsettled law." Clients have problems or issues which exist, no matter how settled the law is in that area. Attorneys are held to a standard of reasonable care in all aspects of their representation...
Privity and Lack of Proximity in Legal Malpractice
Posted on June 18, 2009In Weksler v Kane Kessler, P.C. ;2009 NY Slip Op 04957 ;Decided on June 16, 2009 ;Appellate Division, First Department we see the fatal duo of lack of privity and lack of proximity. The short story is that Plaintiff, while married to decedent was promised a life-long annuity of $ 4000 per month, said to come from the adult sons, so long as she remained married until decedent's death...
When is a Helicopter Crash Like Legal Malpractice?
Posted on June 17, 2009The short answer is when there is spoliation. Spoliation is the intentional or negligent destruction of evidence. It may take place prior to, or during litigation, and it always deprives one side of the use of otherwise admissible evidence...
Res Judicata and Bankruptcy Fee Hearings
Posted on June 16, 2009We have commented about the Collateral Estoppel trap in legal malpractice with regard to fee arbitrations and hearings. in short, when a court grants an attorney fee application, it implicitly determines that there can have been no malpractice, as the court may not award fees in the face of malpractice...
Matrimonial Legal Malpractice, Fees and Summary Judgment
Posted on June 15, 2009Clients often ask whether it matters that their legal malpractice case comes as a defense to an attorney fee case. It should not, but judges are swayed by the procedural setting of cases before them. Does it make a difference whether the legal malpractice case is a main action or a counterclaim? Taking a look at this case gives possible insight...
Documentary Evidence and the Motion to Dismiss in Legal Malpractice
Posted on June 12, 2009CPLR 3211 (a)(1) is the "documentary evidence" portion of a general pre-answer motion to dismiss. The standard applied to dismissal motions under this particular sub-section is: "On a motion to dismiss based upon documentary evidence, dismissal is only warranted if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law" (Klein v Gutman, 12 AD3d 417, 418; see CPLR 3211[a][1]; Saxony Ice Co...
Attorney & Client, or Not, in Legal Malpractice
Posted on June 11, 2009A "client's unilateral belief" in the attorney-client relationship is insufficient to prove privity between the attorney and client, sufficient for a legal malpractice lawsuit, but subsequent behavior or acts by the attorneys might provide the necessary proof...
New Life in Judiciary Law 487 and Legal Malpractice
Posted on June 10, 2009In the past six months, new life has been breathed into Judiciary law 487. It may well be the oldest statute in Anglo-American jurisprudence. Dating from1275 the statute provides that an attorney who is guilty of any deceit or collusion, may be guilty of a misdemeanor and held for treble damages...
Retaining Liens in the Absence of Legal Malpractice
Posted on June 09, 2009In both Federal District Court and in State Court in New York attorneys have a "retaining lien" under Judiciary Law 475. In Federal District Court the rule is set forth in Katz v. Image Innovations Holdings Inc., 06 Civ. 3707;Decided: May 27, 2009; District Judge John G...
Privity Still Counts, Even in the Big Cases
Posted on June 08, 2009The collapse of a hedge fund gives rise to a legal malpractice claim by various of the investors. The hedge fund impresario is convicted of securities fraud, and then turns around to help the investors sue the funds' attorney. In Eurycleia Partners, LP v Seward & Kissel, LLP ; 2009 NY Slip Op 04299 ; Decided on June 4, 2009 ; Court of Appeals ; Graffeo, J...
Mental Incompetence and Legal Malpractice
Posted on June 05, 2009Aside from the precatory "You've got to be crazy...", " on occasion, true mental incompetence does collide with questions of legal malpractice, and in this case, criminal conviction. In ALLEN WOLFSON, -v- AVRAHAM MOSKOWITZ, 08 Civ...
Legal Malpractice and the Right to Documents
Posted on June 04, 2009This recent Court of Appeals Case, Wyly v Milberg Weiss Bershad & Schulman, LLP 2009 NY Slip Op 03628 ; Decided on May 7, 2009 ; Court of Appeals discusses the rights of a client to "its" case file for use in a later proceeding.....
May You Settle a Case and Then Sue for Legal Malpractice?
Posted on June 03, 2009In Leone v Silver & Silver, LLP ; 2009 NY Slip Op 04204 ; Decided on May 26, 2009 Appellate Division, Second Department we see that merely settling a case does not deprive plaintiff of the right to sue the attorney, so long as the settlement was effectively compelled by the acts of the target attorney...
Slip & Falls and Legal Malpractice
Posted on June 02, 2009Slip and fall cases are a major part of the personal injury oeuvre, and personal injury litigation remains a large part of the world of the bar. Accordingly the laws of personal injury, and specifically those relating to trips and falls are widely known and highly important...
It's All Legal Malpractice No Matter What the Name
Posted on June 01, 2009Some time ago the legislature passed a statute of limitations for legal malpractice, overruling the Court of Appeals which permitted both a 3 year and a 6 year statute. Of course, now there is but a single 3 year statute. At the same time, it was determined that no matter whether one calls the attorney's mistakes fraud, breach of fiduciary duty or something else, there is a single 3 year statute, and it's all called legal malpractice except in certain unusual circumstances...
Retainer Agreements and Legal Malpractice
Posted on May 29, 2009Retainer agreements or letters of engagement are required in New York, and there is a large body of law concerning attorney fees and the necessity of retainer agreements. On a different dimension, the question of what work an attorney has agreed to perform, and the limits of that attorney's liability may well be determined by the scope of the retainer agreement...
An Unusual Real Estate Legal Malpractice Case
Posted on May 28, 2009One might not expect a legal malpractice case such as this to take place in Brooklyn. It would be far more plausible in a small upstate hamlet, where everyone knows everyone else, and there are strongly intersecting lines of business and social life...
Privilege, At Issue Communications and Legal Malpractice
Posted on May 27, 2009Legal Malpractice cases frequently involve a series of attorneys, each of whom comments or gives advice concerning the acts of a predecessor. When will these communications be protected and when will the protection be waived ? A simple answer would be that all communications are protected, forever...
Roadmap to a Legal Malpractice Law Suit, Under Seal
Posted on May 26, 2009Taken verbatim from the New York Law Journal by Andrew Longstreth "McDermott Will Settles Malpractice Claim McDermott, Will & Emery has settled a malpractice claim brought by the litigation trustee in the bankruptcy of Saint Vincent's Catholic Medical Centers of New York, according to court records...
Losing Custody and Losing a Malpractice Case
Posted on May 22, 2009In this Albany County case, via the Third Department, Bixby v Somerville ;2009 NY Slip Op 03821 Decided on May 14, 2009 we see the unraveling of a marriage, and the eventual custody dispute, now played out in legal malpractice. Father fights with mother over sole custody, ending in a shared custody decision, later modified by the Appellate Division to joint custody...
Choice of Law in Legal Malpractice Case
Posted on May 21, 2009Here is a most unusual case. Legal Malpractice case in State Court follows personal injury case in Federal Court and the State Court Judge effectively second guesses the Federal Court judge in whether plaintiff was subject to North Carolina law or that of another state...
Sub-Prime Loans and Legal Malpractice
Posted on May 20, 2009We have been following this story of the intersection of legal malractice and the sub-prime morrgage crisis. Today, Susan Beck in the New York Law Journal reports that Cadwalader Wickersham & Taft faces a continued legal malpractice case for their work in servicing and securing loans worth $1...
It Takes a Lot for a Judiciary Law 487 Claim in Legal Malpractice
Posted on May 19, 2009Here is a case in which plaintiff's attorneys sued for $1 Million Dollars [this reminds one of Austin Powers] and eventually won a verdict in excess of $ 2 Million on a personal injury case. The question is whether they were negligent in setting the ad damnun clause and whether the defense attorneys might be held in Judiciary Law 487 claims for failing to disclose excess insurance...
Summary Judgment in Broadway Legal Malpractice Case
Posted on May 18, 2009Broadway and Barry Manilow...it seemed destined for success, but lack of investors doomed the production of Harmony. The case revolved around alleged wrong advice on the date of the second option payment, which plaintiff has argued could have been made with the correct date advice...
A Pair of Cases: Are These Legal Malpractice?
Posted on May 15, 2009This morning's Law Journal revealed a pair of cases in which just about the same thing happened. Attorneys acted badly, and the client suffers. Clients depend on their attorneys, and can do just about nothing without the attorney acting as intermediary...
RCM Technologies and Buchanan Ingersoll Legal Malpractice Case
Posted on May 14, 2009Henry Gottlieb at Law.Com reports this $10.6 million Legal Malpractice settlement between Buchanan Ingersoll and RCM Technologies over a stock registration agreement, today. Here is the news article: " A lawyer and two Philadelphia firms have agreed to pay $10...
Real Estate Sales and Legal Malpractice
Posted on May 13, 2009Real Estate sales and the plummeting economic scene have dominated the news cycles for months now. Legal Malpractice litigation often follows economic disturbances, and this case, Walker v. Berman, 2009 NY Slip Op 50887(U) ; Decided on May 4, 2009 ; Supreme Court, New York County ; Stallman, J...
Can This Happen in New York and is it Legal Malpractice
Posted on May 12, 2009Questions of attorney billing, expenses and disbursements often surface in the guise of a legal malpractice defense. Did the attorneys over bill ? Did they over-charge for expenses? May a law firm use Lexis or WestLaw as a profit center? For example, if the law firm is paying a flat fee for legal research, may it charge hourly legal research rates to the client [not the attorney's time...
Huge Akin Gump Legal Malpractice Verdict
Posted on May 11, 2009This case has been widely reported, and we covered it a month ago, too. Here, from the Blog of Legal Times we read about the $ 72 million legal malpractice verdict based upon patent law. "Yesterday, a federal jury in San Antonio slapped Akin Gump Strauss Hauer & Feld with a $72...
Failure to Appeal and Judiciary Law 487 in Legal Malpractice
Posted on May 08, 2009Two of the hardest causes of action to prove and prevail upon in legal malpractice are the "failure to appeal" claim and one under Judiciary Law 487. Failure to appeal claims are difficult because one must not only prove that the attorneys could have and failed to file an appeal, but one must also prove [to a judge and not to a jury] that the appeal would have prevailed...
Out of State Attorneys and Legal Malpractice
Posted on May 07, 2009Originally dismissed in Supreme Court, this case was re-instated by the Appellate Division, First Department last week. Mortenson v Shea ;2009 NY Slip Op 03611 ;Decided on May 5, 2009 Appellate Division, First Department is a situation in which a New Jersey law firm was retained to sue a New York law firm for legal malpractice...
Did Plaintiff Settle her Way into a Legal Malpractice Case?
Posted on May 06, 2009This case took several readings to try and sort out the story. Plaintiff in this legal malpractice case, Citrin v Baratta & Goldstein ;2009 NY Slip Op 03597 ;Decided on May 5, 2009 ;Appellate Division, First Department was a defendant in the underlying action...
Intermittent and Continuous Representation in Legal Malpractice
Posted on May 05, 2009In Byron Chem. Co., Inc. v. Groman; 2009 NY Slip Op 03465 ; Decided on April 28, 2009 ; Appellate Division, Second Department plaintiff employer sued its attorneys for an employee benefit provision which was drafted by attorney firm 1, which was then taken over by attorney firm 2...
A World Apart in Legal Malpractice
Posted on May 04, 2009From time to time we forget that Louisiana is a completely different environment. Its laws are different, its emphasis is different, and even its terms are wholly different. Here is an article from Hinshaw & Culbertson on the case of McGuire v...
Pro-Se Legal Malpractice Litigation
Posted on May 01, 2009Attorneys gnash their teeth when litigating against pro-se parties. The thought is that the pro-se gets an advantage; they are not held to tight deadlines, are not the subject of rule-specific dismissal, nor are they required to hew to the line of traditional court procedure...
Real Retention, Privity and Legal Malpractice
Posted on April 30, 2009The informal way some people go about hiring an attorney is well documents in a new case decided by Justice Ling-Cohan in Camone v. Levy, 2009 Slip Op 30843(U). Here plaintiff trustee is of a generation skipping trust, and attorney is shown materials in order for him to tell plaintiff whether a federal estate tax return must be filed...
Nominal Damages in a $55 Million Dollar Legal Malpractice Case
Posted on April 29, 2009Here, in an article from NY Lawyer is the shocking outcome of a huge London legal malpractice case. Linklatters, on trial for $ 55 Million ends up paying $ 5 [actually 5 pounds] as a nominal verdict. Queery: no motion for summary judgment? In NY courts, we see such outcomes in pre-answer motions and in motions for summary judgment...
Insanity and Legal Malpractice
Posted on April 28, 2009Is an attorney required to perform more work that set forth in a retainer agreement? If the attorney does not perform more work, will the statute of limitations be tolled by the client's insanity? These two questions are partially answered in Turner v Irving Finkelstein & Meirowitz, LLP ;2009 NY Slip Op 03158 ;Decided on April 21, 2009 ;Appellate Division, Second Department ...
When the Damages are Huge, Look for Legal Malpractice to Follow
Posted on April 27, 2009This story from Law.Com by Zusha Elinson tells of the aftermath of a $ 82 million Sony Patent case, with its reports of witness buying, false testimony and unreliable evidence. From the Legal Malpractice perspective here is the nugget: "Craig Thorner was the key witness in the Sony legal team's effort to overturn an $82 million patent infringement verdict in a case against Immersion Corp...
Multi-State Legal Malpractice and the Borrower Statute
Posted on April 24, 2009California corporation retains New York law firm to process a trademark application, which fails. California plaintiff sues New York defendant for legal malpractice in Federal District Court, SDNY. Case is dismissed on jurisdictional basis...
Contingent Fee Retainers, Appellate Work and Legal Malpractice
Posted on April 23, 2009When may the representation of a client end, what work does an attorney have to do for a contingent fee client, and how do legal malpractice considerations filter in? Those questions are answered, in this context, in Matter of Mill Creek Phase 1 , Supreme Court, Kings County, Gerges, J...
Law Firm Retainers and Legal Malpractice
Posted on April 22, 2009We're continuing to discuss the Howard S. Davis article in the New York Law Journal on April 17, 2009. How does the written attorney retainer agreement relate to an attorney malpractice case? Is the attorney responsible for handling an appeal, a wrongful death proceeding in Surrogate's Court, a supplemental trust? Is a fee earned when there is a successful appeal after an adverse outcome? Davis writes: "The leading case in New York on the interpretation of attorney retainer agreements is Shaw v...
Trustee's Standing in Legal Malpractice
Posted on April 21, 2009A bankruptcy trustee "steps into the shoes of the debtor" and obtains certain benefits from this power. In Kirschner v. Grant Thornton we see that there are limits to that power. As Mark Hamblett writes in today's NYLJ: "Southern District Judge Gerard E...
Ahorn Legal Malpractice, and Retainer Agreements
Posted on April 20, 2009In Arkansas Department of Human Services v. Ahlborn, 547 U.S. 268, 126 S. Ct. 1752, it was "held that from a $550,000 negotiated settlement in a case arising from a car accident, the Arkansas Medicaid authority could recover only $35,581.47 (about one-sixth) of the $215,645...
Ahlborn Legal Malpractice, and Retainer Agreements
Posted on April 20, 2009In Arkansas Department of Human Services v. Ahlborn, 547 U.S. 268, 126 S. Ct. 1752, it was "held that from a $550,000 negotiated settlement in a case arising from a car accident, the Arkansas Medicaid authority could recover only $35,581.47 (about one-sixth) of the $215,645...
Relation-Back and the Statute of Limitations in Legal Malpractice
Posted on April 17, 2009A recent case Carl v. Cohen, Supreme Court, New York County, Justice Edmead 2009 NY Slip OP 30806(U), April 15, 2009 illustrates two distinct principals. The first is privilege and at issue communications which we discussed on April 15. The second principal is relation-back and the statute of limitations...
Turnabout in Legal Malpractice Defense Motion
Posted on April 16, 2009One of the more interesting memes in legal malpractice is the inevitable turnabout that is played out by the target attorney. Once the advocate for plaintiff, the target attorney immediately turns around to show the holes in, and deficiencies of plaintiff's position...
At Issue Privilege in Legal Malpractice
Posted on April 15, 2009A recent case Carl v. Cohen, Supreme Court, New York County, Justice Edmead 2009 NY Slip OP 30806(U), April 15, 2009 illustrates two distinct principals. The first is privilege and at issue communications. The second principal, to be discussed on Friday, is relation-back and the statute of limitations...
Contribution and Indemnity in Legal Malpractice
Posted on April 14, 2009A NYC fact pattern in legal malpractice: Plaintiff, a MD wishes to buy a co-op for use as a physician's office. She finds a prior doctor's office and hires attorney and engineering company to do the deal. Plaintiff buys the unit only to find out that the certificate of occupancy is for residential use and not for professional space...
An Appeal Decided in Summary Fashion in Legal Malpractice
Posted on April 13, 2009This recent appellate case McCluskey v Gabor & Gabor, 2009 NY Slip Op 02757 Decided on April 7, 2009 Appellate Division, Second Department illustrates the difference between malpractice at the trial level and at the appellate level. At the trial level one must prove the usual :"a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession' and that the attorney's breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages" (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442, quoting McCoy v Feinman, 99 NY2d 295, 301-302; see Noone v Stieglitz, 59 AD3d 505)...
In a Land where Malpractice Insurance Coverage is Published, You Must be Honest
Posted on April 10, 2009From theLaw Profession Blog we report on this Arizona Disciplinary Case in which the exitence of attorney malpractice insurance was published. The attorney was disciplined as we see in the order. "An Arizona hearing officer has recommended the disbarment of an attorney for misconduct in several matters...
Cruise Ship Negligence and Legal Malpractice
Posted on April 09, 2009Cruise Ship Season comes and goes, and even in poor economic times, the ships carry many people to their vacations. As in all events human, there will be accidents and injury. The very nature of cruise ships, their location and the mere fact that they travel on water, complicates the legal horizon...
An Attorney's Mistake with No Remedy in Legal Malpractice
Posted on April 08, 2009Nature abhors a vacuum, they told us in high school and the law abhors a wrong without a remedy. One particular area of legal malpractice where this curers is criminal defense, in which no legal malpractice action might be brought by a convicted defendant, no matter whether the attorney's mistakes contributed, or caused the conviction...
Fee Suits and Legal Malpractice Counterclaims - A Constant Duo
Posted on April 07, 2009"The best defense is a strong offense"..."Tyranny shall not go unopposed!" which of these two opposing story lines will succeed in a legal fee / legal malpractice case. Here is one example where the fee side wins out. Duane Morris LLP v Astor Holdings Inc...
A Very Strange Case of Legal Malpractice and Fees
Posted on April 03, 2009Taking over a pro-se case can be dangerous, as an attorney in NJ has recently found out. In this story from Law.Com recounts the attorney took over after a pro-se college professor started a employment discrimination law suit: "A lawyer who prevailed in a Title VII suit three years ago has been engaged since then in an unusual fee fight: against her own client, who says his pro se work entitles him to keep the fees awarded...
New Life in a 700 Year Old Legal Malpractice Statute
Posted on April 02, 2009Judiciary Law sec. 487 is perhaps our oldest statute, certainly the oldest statute in existence concerning legal malpractice. Recently the Court of Appeals decided Amalfitano v. Rosenberg. Now we are seeing a resurgence of interest, and in this particular case a court reconsidering its earlier decision to dismiss a Judiciary Law 487 case based upon the Court of Appeals Decision...
Fee Sharing and Legal Malpractice
Posted on April 01, 2009The Court of Appeals decided an interesting attorney fee sharing case today, in which the successful attorneys called their referring attorneys "unethical" and then promptly lost the case. Samuel v Druckman & Sinel, LLP 2009 NY Slip Op 02447 Decided on March 31, 2009 Court of Appeals Pigott, J...
Legal Malpractice and an Injunction Against Future Cases
Posted on March 31, 2009Among the many weapons a court has is the rarely used injunction against future case filings. After all, it's a citizen's right to sue. One of our favorite New Yorker cartoons is the young child asking her mom when she will be old enough to sue someone...
Legal Malpractice is Different, After All
Posted on March 30, 2009In this particular case, it is possible to read through the entire Appellate decision and not even know what was alleged against the attorneys. Rather, on summary judgment, the court determines that plaintiff could not have won against the insurer, hence, legal malpractice case is dismissed...
Is it The Economy or Just Plain Legal Malpractice?
Posted on March 27, 2009Law.Com reprints an interesting article from the Texas Lawyer on the relationship between the economy and legal malpractice litigation. One theory is that plaintiffs are more in need of recovery, and will either bring more legal malpractice law suits, or are willing to sue over smaller sums...
Are More Motions to Dismiss Filed in Legal Malpractice Cases?
Posted on March 26, 2009We do not have firm statistics in this area, but from a general overview of litigation it seems to us that a higher percentage of legal malpractice cases are subject to motions to dismiss under CPLR 3211(a)(1) than are other types of cases. We have thought about why this might be...
Just Another Form of Legal Malpractice
Posted on March 25, 2009In the high flown world of patent infringement, large legal fees are the norm. Here, from law.Com we see the story of $ 10 million in legal fees, all spent in a fruitless effort to enforce a patent infringement case against Palm. In the end, plaintiff paid its attorney $ 7 million plus in fees, and paid the opposing attorney $ 2...
"Helping the Competition" Legal Malpractice Dismissal Motion
Posted on March 24, 2009We reported on this case last week; it's an example of big law legal malpractice. The general view of legal malpractice limits its reach to small cases involving personal injury and blown statutes of limitation. However, cases such as this one are huge...
Judgment In Huge Punitiive Damage Legal Malpractice Case
Posted on March 23, 2009The principal that attorneys may not be held in legal malpractice over questions of judgment, strategies at trial and the like is given especial prominence in this case. Client is found liable for $ 7 Million in patent infringement and $20 million in punitives, for "especially reprehensible " behavior...
Stalking, Custody, Arrest and Legal Malpractice
Posted on March 20, 2009It's the rare case in which attorney and judge are both defendants, and the rarer case still in which allegations of stalking, habeas corpus, child custody, contempt are joined with legal malpractice. What makes this case even more unique is that it is set in Federal District Court...
After Termination, Who Keeps the Records and Who Pays
Posted on March 19, 2009Legal Malpractice actions often start with the termination of the target attorney, and even more of them have the common aspect of take-overs by successor attorneys. What happens to the file, how does it get transferred and who pays for the transfer? This weeks decision in Moore v...
Bankruptcy Fee Awards and Legal Malpractice
Posted on March 18, 2009We've written in the past on the collateral estoppel trap in legal malpractice. While fee arbitrations in State Court proceedings probably have the greatest absolute number of applications, bankruptcy court fee awards may well cover a greater dollar figure...
Legal Malpractice in the Real and Cinematic Worlds
Posted on March 17, 2009Burt Pugach and Linda Riss are a staple of the blogosphere and the Page Six world. He was a lawyer who was convicted in 1959 for blinding Linda Riss by use of lye, went to jail ,came out of jail to marry her ,and then was disbarred. He was determined to have practiced law through the use of a front man-lawyer in 2008...
Legal Malpractice in One of Its Many Guises
Posted on March 16, 2009Our meme on this blog is that Legal Malpractice litigation is ubiquitous and omnipresent. All right, what exactly does that mean? It's not just blown statutes in personal injury, and it's not just unanswered questions in matrimonial suits, and it's not even just bankruptcy trustees and ponzi schemes...
The NJ Fee Rule in Legal Malpractice
Posted on March 13, 2009In the law, "attorney's fees are awarded..." carry awesome power. Traditionally, the American rule is that each side bears its own attorney fees unless there is an agreement or a statute which grants attorney fees to the prevailing party...
A Most Tangled Web of Legal Malpractice and Real Estate
Posted on March 12, 2009Plaintiff owns property, plaintiff borrows money on property, plaintiff and lender reach a complicated right of first refusal agreement, lender and plaintiff enter into new lending agreements for different businesses, and then it all falls apart...
Pillsbury Winthrop Shaw Pittman and a $10 Million Legal Malpractice Settlement
Posted on March 11, 2009We have noted the trend towards legal malpractice cases issuing out of Bankruptcy proceedings. We believe the trend arises from the greater number of large bankruptcy filings in the corporate world, and the smaller pool of assets available to the creditors...
CPLR 321 and the Statute of Limitiations In Legal Malpractice
Posted on March 10, 2009How and when does the attorney-client relationship end? Does CPLR 321 have anything to do with calculating the date for statute of limitations purposes? Is there a bright-line rule? In this Supreme Court case Frenchman v. Queller Fisher, authored by Justice Carol Edmead, we see all sides of the arguments...
Judiciary Law 487 Targets Attorneys in Legal Malpractice
Posted on March 09, 2009Today's Outside Counsel Column in the New York Law Journal is "The Use of Lawyer-Targeted Judiciary Law 487. It discusses the 740 year history of what may be the oldest statute in Anglo- American jurisprudence, and certainly the oldest to affect attorney conduct in and out of court...
20 Years and Counting in Legal Malpractice
Posted on February 26, 2009This intriguing story from New Jersey has several unique aspects to it. The first is an idea alien to New York litigation and legal malpractice. This attorney was still in practice, and still representing buyers and sellers of the same residential property in the same neighborhood twenty years after the first transaction...
New Trial in Tae Bo Legal Malpractice Case
Posted on February 25, 2009The National Law Journal reports that an Appellate Court has reversed and remanded a $30 million legal malpractice case against the law firm Seyfarth Shaw based upon issues of jury instructions. "Blanks filed a legal malpractice lawsuit against Seyfarth Shaw and Lancaster, alleging that the attorney's failure to file the action on time before the labor commissioner caused Blanks to lose millions...
Will the Economy Affect Legal Malpractice Cases?
Posted on February 24, 2009From the National Law Journal: Legal Malpractice Cases May Surge as Economy Tanks New York Lawyer February 23, 2009 Reprints & Permissions By Karen Sloan The National Law Journal Subscribe to The National Law Journal - 30 Days Free! With the economy tanking, experts say the stage is set for a surge in legal malpractice lawsuits, as clients look to recoup their losses from third parties...
Phen Fen Legal Malpractice Case again Dismissed
Posted on February 23, 2009In Barber v. Siller Wilk we seen an interesting anomaly of legal malpractice, which is the recurring lawsuit against the target attorney, which is lost, and then against the attorney who sued the target attorney, then.... reminiscent of the reducio ad adsurdum metaphysical argument one learns in philosophy...
Legal Malpractice in a Labor Law Setting
Posted on February 20, 2009The Labor Law and its connection with union contracts, employment at will and whistle blower statutes is complicated. Clients are well advised to go to an attorney who concentrates in this area. Here is a case in which plaintiff's case went awry, and ended in legal malpractice...
Reasonable Trial Strategy in Legal Malpractice
Posted on February 19, 2009An attorney is free to utilize a reasonable trial strategy for its client without a risk of legal malpractice. So goes the "judgment" principal in legal malpractice. What constitutes a reasonable trial strategy? As an example, Noone v Stieglitz ;2009 NY Slip Op 01093 ;Decided on February 10, 2009 ; Appellate Division, Second Department is instructive...
An Apartment Closing, The Brokers and Legal Malpractice
Posted on February 18, 2009We predict a change in the focus of legal malpractice cases reflecting the economic changes going on today. Here is a case more indicative of the former red-hot real estate market in Manhattan. Plaintiffs buy two apartments, plan to combine them, are told that some outside space on a setback will be theirs, and then it all goes sour...
Judiciary Law 487 - The Oldest Statute in Law?
Posted on February 17, 2009It's not the 10 Commandments, and it's not the Magna Carta, but as this Court of Appeals case demonstrates, it's not far off. Amalfitano v. Rosenberg is a new Court of Appeals decision which traces Judiciary Law section 487 all the way back to 1275...
Judiciary Law 487 and the Court of Appeals
Posted on February 16, 2009We've written about Judiciary Law section 487 before, and have an article in the New York Law Journal awaiting publication. Like an appellate litigant who reads a new and important case the morning of oral argument, we came across the Amalfitano v...
A Comma here, a Paragraph There, $150 Million in Legal Malpractice
Posted on February 13, 2009Rounding out the week in legal malpractice, this article caught our eye. Law firm represents company seeking to go national in the cable market. Advises in a transaction so large it gets its own nickname. In one of probably hundreds of document drafts two paragraphs go missing, and everything falls apart...
The Money is Lost, but is it Legal Malpractice
Posted on February 12, 2009Much litigation arises from the "deep pocket" theory. Put in the best light, it might be said that a plaintiff has really been wronged, and now the search is on for the usual suspects. Put another way, someone has lost a lot of money, due to no fault of his own, and he would like to be reimbursed...
Referring Attorneys and Legal Malpractice
Posted on February 11, 2009Attorney Referrals are a significant part of the attorney compensation field, and some attorneys derive considerable fees from their practice of taking in a large catchment population, and then referring the cases out to attorneys in specialized fields...
Peeling Away the Layers of Legal Malpractice
Posted on February 10, 2009The Fourth Department handed down four legal malpractice decisions this week, which is surely a record. Three were decisions without reasoning. The fourth, KEITH LONG, , v CELLINO & BARNES, P.C., THE BARNES FIRM, P.C., STEPHEN E. BARNES, ESQ...
A suspended Judge and Legal Malpractice Cases
Posted on February 09, 2009How much money can be made in the business of incarcarating juviniles? Apparently, quite a bil. This Pennsylvania judge was suspended upon "accusations that two now-suspended Pennsylvania judges accepted $2.6 million in kickbacks in exchange for incarcerating juveniles at specific detention facilities " That's bad...
Attorney Pays $ 200,000 in Legal Malpractice and Gets $ 1.2 Million
Posted on February 06, 2009Here is the story of a three-way deal in a legal malpractice / overpayment of fees / municipal negligence case which we reported at the onset. In Lodi, California [I must admit that the CCR song quickly comes to mind] target attorney had represented the city in litigation, especially an underground pollution case, and claimed he was owed $ 7 million or more...
Legal Fee Suits and Legal Malpractice Cases
Posted on February 05, 2009If one were to peruse the legal press, headlines seem limited to merger, layoffs and legal fee disputes. There is a definite tie-in to legal malpractice litigation. Lesson one by legal malpractice insurers to attorneys is that legal fee cases engender legal malpractice defenses...
A Legal Malpractice Dismissal Motion Primer
Posted on February 04, 2009For some reason, it seems legal malpractice cases are subject to an inordinately high percentage of motions to dismiss, more so than other categories of cases. Here in SHAHRAM DAVID LAVIAN, -v.- IRA DANIEL TOKAYER, ESQ., 08 Civ. 938 (PAC) (GWG); UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK;2009 U...
Continued Representation in Legal Malpractice
Posted on February 03, 2009The principal of "continued representation" in Legal Malpractice is that the statute of limitations does not start to run upon the making of a mistake, while the attorney continues to represent the client. "The statue of limitations sounding in legal malpractice is tolled until the completion of the attorney's ongoing representation concerning the matter out of which the malpractice claim arises...
Legal Malpractice Case against your Public Defender
Posted on February 02, 2009The poor deserve an adequate criminal defense as much as anyone else. While everyone gets an attorney when arrested, even if they cannot afford one, publicly funded legal Aid or 18b attorneys don't always get sufficient funding to handle large caseloads/ Who suffers? Here is a case from Seattle in which an innocent man sat in jail for months after his accuser recanted...
Blame the Judge in Legal Malpractice
Posted on January 30, 2009Judges handle hundreds of cases a year, many more during a career. what happens when a judge is removed from the bench for criminal acts? Can the cases presided over by this particular judge unravel? In this Pennsylvania legal malpractice case, the judge recused himself during trial when an attorney accused him of showing favoritism...
Attorney Fees in Legal Malpractice Litigation?
Posted on January 29, 2009May the defendant attorney collect attorney fees for the successful defense of a legal malpractice case? One would immediately think not. The "American Rule" is that each side pays for its own attorneys, and the blackletter rule in NY is that absent an agreement or a statute, attorney fees are not collectible...
Try, Try, Try Again in Legal Malpractice
Posted on January 28, 2009ROBERTO 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...
When is a Legal Fee not Really a Legal Fee
Posted on January 27, 2009Collateral Estoppel and Legal Malpractice have an interesting intertwining existence. Put briefly, once an attorney is awarded a legal fee [by a court, an arbitrator, or a judicial hearing officer] a subsequent legal malpractice case fails on the basis that a court has already implicitly determined that there can be no legal malpractice, because no fee may be awarded in the face of legal malpractice...
Divorce, Legal Malpractice and Proofs
Posted on January 26, 2009Here is a pdf version of the Oxman v Herman Sloan Robarge & Sullivan, LLP case, which is a not unusual matrimonial legal malpractice case, As in many of these cases, plaintiff-wife believes that her attorney has insufficiently investigated the assets of her husband, to the extent that she has been significantly short-changed in equitable distribution...
Like Russian Dolls, A Case Within A Case, Within...
Posted on January 23, 2009Legal malpractice is a world within itself. Beyond the obvious small universe of defendants, all attorneys of course, and the unique rules, the serious questions are almost always how the underlying case was lost, and could it have been won. While much litigation today centers on meta data and electronic discovery, most of legal malpractice centers on metaphysics, or the ultimate nature of proofs and hypothetical outcomes...
"9 to 5" and Legal Malpractice
Posted on January 22, 2009Legal Malpractice in Hollywood should come as no surprise. We've commented on the widespread omnipresence of legal malpractice litigation, but had no idea we would be quoting Variety on the subject. Here is their report on legal malpractice and the "9 to 5" screen, stage and trust saga as well as the cult classic Harold and Maude...
Harbinger of Legal Malpractice Cases to Come?
Posted on January 21, 2009As the economy has sunk, it is expected that legal malpractice cases will increase. One reason is that cases previously thought to be unworthy will garner new luster; another is that in commercial circumstances there will be opportunities for cases...
Thoroughbred Legal Malpractice Case
Posted on January 20, 2009This case illustrates the difference between legal malpractice and all other litigation, the "case within a case." Defendant attorneys admitted that they allowed a case to go into default, yet were successful in avoiding liability. Their defense? Even if we made the mistake, plaintiff could not have won the case after all...
What's Worse than Legal Malpractice? Arrest
Posted on January 19, 2009For an attorney, being sued is a traumatic event. Ones advice and acts are being criticized, and a former client is claiming injury as a result of your professional work. Not a good feeling. What could be worse? How about being arrested for giving advice to a client? In this case, Vinluan v...
The Connection between the Economy and Legal Malpractice
Posted on January 16, 2009We've noted in the past that many legal malpractice cases arise when attorneys work outside of their zone of experience. As an example, there are unique rules for medical malpractice which do not exist elsewhere. A certificate of merit is required to be filed with the complaint, and the failure to file it can have serious ramifications...
Multiple Representation and Legal Malpractice
Posted on January 15, 2009This case Tavarez v Hill ;2009 NY Slip Op 29002 ;Decided on January 5, 2009 ;Supreme Court, Bronx County ;Victor, J. recently partially decided covers two areas. The first area is disqualification of counsel because of multiple representation of four car accident victims, all in one car...
Medical Malpractice, Experts and Potential Legal Malpractice
Posted on January 14, 2009Here is a fascinating case from the Fourth Department. Lawfirm refuses to pay expert for his trial testimony [what has happened to the demand that a certified check be handed over prior to taking the stand?] and expert sues for his fee. Law firm turns around and sues for loss of case based upon expert's testimony...
Guardian's Attorney May not Be Sued in Legal Malpractice
Posted on January 13, 2009This case discusses three important concepts in legal malpractice. Standing, immunity and proximate cause. Cangro v. Solimon 2008 Slip Op. 33345. holds that under Rule 1(h) of Part 36 of the Rules of the Chief Judge, a guardian ad litem's attorney requires judicial appointment, and is immune from suit, absent permission from the court...
Will Foreclosure Cases Morph into Legal Malpractice
Posted on January 12, 2009There is a traditional cadence to the start of a legal malpractice case. First comes a dispute, retention of an attorney, initial success, then a downturn into failure followed by a legal malpractice case. With the real estate market very troubled, and foreclosures on the rise, a prediction of legal malpractice/foreclosure actions is warranted...
Always a Case within a Case in Legal Malpractice
Posted on January 09, 2009As yet another example of why legal malpractice is a difficult discipline, here is a case in which there was a failure to file a counterclaim, The legal malpractice case ends in dismissal, because the Appellate Division determines that the counterclaim, even if made would have failed...
Attorney Fee Denied in Multi-Million Dollar Medical Malpractice Settlement
Posted on January 08, 2009The matter of Chen v. Mt. Sinai was handled by attorney Steven F. Goldman, and settled just after depositions for $ 2.4 million. Mt. Sinai was represented by Martin Clearwater & Bell, a premiere NY med-mal defense firm. One would think that was good news for Mr...
Death in Iraq, Blackwater and Legal Malpractice
Posted on January 07, 2009Law.Com reports [as does the BLT Blog] that a legal malpractice case by Blackwater Security Consulting has been dismissed, now for the second time against Wiley Rein. The legal malpractice case arises from the horrible death of Blackwater employees in Falugia, Iraq...
Legal Malpractice and the Real Estate Downturn
Posted on January 06, 2009A recurring theme of these entries is the ubiquitous nature of legal malpractice. All roads, it seems, require attorneys to mix a metaphor. Downturns in the real estate marketplace are no exception. Here is a story from Law.Com about a legal malpractice case against Quinn Emanuell, a biglaw litigation firm...
Asbestos, Settlements and Legal Malpractice
Posted on January 05, 2009Asbestos settlements have changed the landscape of tort law, and especially mass tort law. Back in the mid '90s asbestos cases started to cascade and overwhelm the system. The defense bar's response was to try to streamline the process. While this may seem counter intuitive, the intersection between defense costs and settlement costs, especially when insurance/limited insurance coverage was factored in, required litigation committees, typology of injury and the like...
Bankruptcy and Legal Malpractice
Posted on January 02, 2009The question of when a legal malpractice claim belongs to the debtor and when it belongs to the debtor's estate is of strong significance. If the former, plaintiff may hire his own attorney and proceed; if the latter, then the trustee in bankruptcy or debtor's estate holds the reins...
Happy New Years to All
Posted on December 31, 2008Thank you for reading our commentary this year. We wish a wonderful holiday season to all. We'll be returning on January 2, 2009.
Closely Held Corporations, Retainers and Legal Malpractice
Posted on December 30, 2008A sole shareholder of a closely held corporation hires an attorney. The retainer agreement does not always reflect that the attorney is representing both the individual and the corporation, and at the begining it probably means little. After a progression into a legal malpractice case it may well take on epic porportions...
Are Attorney Fees Recoverable in Legal Malpractice
Posted on December 29, 2008The answer to this question is a qualified yes. Attorney fees, which are unearned by virtue of the malpractice, or other fees which are spent to rectify the situation may be collected. Here is a case from the Third Deparment on the issue. LEACH Appellant, v...
Merry Christmas
Posted on December 25, 2008We want to take this occasion to wish everyone a Merry Christmas and a Happy New Year.
Supervision of Partners and Legal Malpractice
Posted on December 24, 2008This holiday season has been one long story about bad economic news, swindles, bad investments, and hedge funds. One meme of this blog has been that legal malpractice litigation is ubiquitous, and intertwined with all aspects of our world. This is simply a reflection of the integration of law and lawyers in all aspects of our social and economic lives...
Judiciary Law 487 Claim Survives in Legal Malpractice
Posted on December 16, 2008The NYLJ reports a Judiciary Law 487 case today in which the claim survives. Empire Purveyors, Inc. v. Brief Justice & Kleinman, [subscription necessary] which was written by Justice Solomon in Supreme Court, New York County, holds that Judiciary Law 487 is applicable in both of its applications...
Legal Malpractice is a Two Step Discipline
Posted on December 15, 2008Because legal malpractice is always a "case within a case" it is a two step process. The very nature of the two step process gives rise to defendant's ability to brag over winning either of the two legs. An example is Orick's statement that they were vindicated, even after it was proven that the attorney violated his fiduciary duty...
The World Wide Web of Celebrity Legal Malpractice
Posted on December 12, 2008Two huge names in the celebrity Blogosphere, Perez Hilton and Samantha Ronson along with Lindsay Lohan join together with lesser known attorney Martin Garbus to again demonstrate the ubiquitous nature of legal malpractice. We are betting that most readers will know the facts of this case...
Attorney Client Privilege and Legal Malpractice
Posted on December 11, 2008An attorney must carefully and assiduously guard his client's confidences, secrets and communications with the attorney. This remains true until the attorney has to defend himself. Must this defense be to criminal charges, or to ethical charges only? The answer is set forth in a recently decided case in the First Department...
From the Frying Pan into the Fire in Legal Malpractice
Posted on December 10, 2008A tip of the blogging hat to Shareholder Oppression Blog which reports this Texas case in which business is looking for investors and plaintiff comes along. His investment is somewhat complicated, and the company's attorney suggests some changes...
Legal Malpractice in Filing Too Early?
Posted on December 09, 2008Typically, legal malpractice follows filing too late; here there may be legal malpractice in filing too early. This situation is more common than one might imagine, and in the current economic circumstances, may re-occur needlessly. The Southeast Texas Record reports the facts of a case similar to ones we have seen...
Bare Knuckle Politics and Legal Malpractice in New Jersey
Posted on December 08, 2008Town buys property previously owned by bus company. They plan to remediate the property, and turn it into a park. Town's Attorney is Democratic. Town board is Republican majority, soon to change after election. Result? Attorney is potentially a legal malpractice defendant, solely dependent on whether Republicans or Democrats have the majority...
Intransigence or Legal Malpractice?
Posted on December 05, 2008Continuing in the turnabout tradition of legal malpractice defense, wherein the defendant attorney takes on the coloration of its previous adversary in order to defeat a "case within a case' is this matter: Lederer de Paris Fifth Ave., Inc. v Jordan & Hamburg, LLP ; 2008 NY Slip Op 09462 Decided on December 2, 2008 Appellate Division, First Department ...
A Very Complicated Real Estate Legal Malpractice Case
Posted on December 04, 2008One of the problems in figuring out a legal malpractice case by reading an appellate decision, is that even when the court gives a detailed set of facts, thee are many connections either not apparent or missing. Here in Ito v. Suzuki, 2008 NY Slip Op 9437, Decided December 2, 2008, Appellate Division, 1st Department, the shenanigans of this real estate deal are dizzying...
Recusal, Political Donations and Legal Malpractice
Posted on December 03, 2008During the campaign season, news reports ouline the amounts of money individuals donate to candidates, and there are websites which track donations by name. Recently in West Virginia, a legal malpractice case involving the Massey Coal company there made news when the US Supreme Court decided to hear the question of whether campaign contributions required recusal of a State Supreme Court justice...
Plaintiff's Partial Success does not Rule out Legal Malpractice Case
Posted on December 02, 2008Plaintiff claimed pay and benefits from the Board of Education. Apparently there is a two part process for such claims. The first thing to do is to request a hearing. Later, one may bring an Article 78 proceeding. In Leticia Abreu v Jose A...
Appellate Legal Malpractice
Posted on December 01, 2008In STEPHEN F. BRUMMER, , v THE BARNES FIRM, P.C., CELLINO & BARNES, P.C., STEPHEN E. BARNES, ROSS M. CELLINO, AND RICHARD J. BARNES, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT;2008 NY Slip Op 8831; 2008 N.Y. App. Div. LEXIS 8924 we see a discussion of legal malpractice cases centering on a failed appeal...
Referring Attorney May be Held in Legal Malpractice
Posted on November 28, 2008Attorney A refers a case to Attorney B, and agree that they will share in a contingent fee between them. Ethical issues aside, may Attorney A, who has not committed malpractice nor taken an active role in the case, be held responsible for Attorney B's malpractice? Rosenstrauss v Jacobs & Jacobs ;2008 NY Slip Op 08472 ;Decided on November 5, 2008 Appellate Division, Second Department answers that question as follows: "Moreover, the argument of the defendants Markovits & Markovits and Robert L...
Las Vegas Showrooms and Legal Malpractice
Posted on November 26, 2008This case, reported by Noeleen Walder in the NY Law Journal is highly complicated, and represents the future of legal malpractice. Greenberg Traurig is accused of becoming involved, through its attorney Robert J. Ivanhoe, in a Los Vegas convention/showroom development, in a competitor's similar project all of which is tied up in a California arbitration and legal malpractice case...
Third-Party Practice and Legal Malpractice
Posted on November 25, 2008"Turnabout is fair play" This childhood aphorism describes the third-party practice in a newly reported case, 601 Realty Corp. v. Conway Farrell, Curtin & Kelly PC, NY Slip Op. 33076, from Supreme Court, Nassau County...
Legal Malpractice and the Criminal Plaintiff
Posted on November 24, 2008Criminal Law practitioners enjoy a blanket immunity for legal malpractice not permitted to any other field of law. Briefly put, a convicted criminal defendant may not successfully sue his attorney unless he can demonstrate innocence or later exoneration...
Strange Bed-Fellows in Legal Malpractice
Posted on November 21, 2008Demonstrating the ancient rubric, "the enemy of my enemy is my friend" the case of Rosenstrauss v Women's Imaging Ctr. of Orange County ;2008 NY Slip Op 08473 ; Decided on November 5, 2008 Appellate Division, Second Department shows us how a procedural issue forces plaintiff to espouse the defense of the legal malpractice defendant attorneys, in order to save the legal malpractice case...
The "Sophisticated" Client in Legal Malpractice
Posted on November 20, 2008There is no lack of irony in legal malpractice litigation. Because of the structure of the "case within a case" defendant attorney often takes on the defenses available in the underlying case. So, plaintiff's attorney sees defendant attorney loudly and heatedly making the very same arguments that were made in the underlying action with absolutely no cognitive dissonance...
Prior Knowledge and Legal Malpractice Insurance
Posted on November 19, 2008Whether attorney for Plaintiff or for defendant, each practitioner in the Legal Malpractice field has either a professional or personal interest in legal malpractice insurance. No one, whether prosecuting or defending legal malpractice cases wants to lose or have coverage excluded, and attorneys do not want to have coverage lost for the defendants in a legal malpractice case...
Recovering Workers' Compensation Liens in Legal Malpractice
Posted on November 18, 2008Worker is injured on the job by a paving machine. Worker collects WC benefits from his employment. Worker sues paving machine manufacturer in products liability, and his attorney blows the statute. Worker succeeds in legal malpractice...
Legal Malpractice Case against a Dead Attorney
Posted on November 17, 2008Plaintiff sued his former criminal defense attorney because the attorney did not perfect an appeal. So far, so good. What followed shows how difficult litigation can be, and in how many ways a good case can go awry. Consider, for example, whether there could be a legal malpractice case against the attorney...
Why Weren't They Thinking About Legal Malpractice?
Posted on November 14, 2008Judges retire or don't stand for re-election, and then look for a new job. That's expected and no one is surprised when they surface as a partner in biglaw, or in a prestigious local firm. This story borders on the extreme.Charles Toutant of the New Jersey Law Journal reports: "Lawyers who engaged a retiring judge in discussions about a future business relationship while he was ruling in one of their cases have been sued for damages -- specifically, the other party's attorney fees...
Attorney 1 Responsible for acts of Attorney 2 in Legal Malpractice
Posted on November 13, 2008Yesterday we examined this case: Whalen v DeGraff, Foy, Conway, Holt-Harris & Mealey ,2008 NY Slip Op 06342 [53 AD3d 912] ,July 17, 2008 ,Appellate Division, Third Department on the issue of when an expert is necessary. Today, we look at how a referring attorney, [or a supervising attorney] may become responsible for the negligence of the referred attorney...
When is an Expert Necessary in Legal Malpractice
Posted on November 12, 2008The short answer to the question of when an expert is necessary in legal malpractice is "most of the time." Here in this case, Whalen v DeGraff, Foy, Conway, Holt-Harris & Mealey ,2008 NY Slip Op 06342 [53 AD3d 912] ,July 17, 2008 ,Appellate Division, Third Department we see the slightly longer answer on a motion for summary judgment [same rule would obtain for trial]: "While plaintiff would ordinarily be required to submit an affidavit of an expert setting forth the applicable standard of care in order to obtain summary judgment in her favor (see Alvarez v Prospect Hosp...
Legal Malpractice Case over the End of the Relationship
Posted on November 11, 2008We are continuing to discuss the Gotay case, 2008 NY Slip Op 08432. Defendants remain in the case on the basis that it was unclear that they intended to, or actually had ended their representation. CPLR 321 is the manner in which an attorney ends the relationship, absent a court order...
CPLR 321 and a Very Long Statute of Limitations in Legal Malpractice
Posted on November 10, 2008Law.Com reports the Gotay v. Brietbart2008 NY Slip Op 08432 Decided on November 6, 2008 Appellate Division, First Department Lippman, P.J., case. This case addresses what may be the last reference to a change in New York law which roiled the waters for several years...
Curtain Rings Down on Legal Malpractice Case
Posted on November 07, 2008Plaintiffs were aspiring Broadway Musical producers, and contracted for the rights to a Barry Manilow production, Harmony. Alas, it was not to be. Producing a play/musical for Broadway takes a lot of money, and it appears from the court decision that this production was "undercapitilized," Things went badly, and ended in the producers losing their rights to the script...
Many Allegations all under the Roof of Legal Malpractice
Posted on November 06, 2008Some time ago, the Court of Appeals decided Santulli v Englert, Reilly & McHugh, P.C., 78 N.Y.2d 700, [1992]. The upshot of that decision was that plaintiff could plead both negligence and breach of contract, and each had different statutes of limitation, 3 and 6 years...
Criminal Indictments and Legal Malpractice
Posted on November 05, 2008We've been revisiting this theme over the past year. When one thinks legal malpractice, the most common image is that of the personal injury client whose statute of limitations was blown. However, today we see a significant rise of legal malpractice in the financial field...
Politics, Attorneys and Legal Malpractice
Posted on November 04, 2008Do politics play a part in justice? Often clients believe that a judge is biased either for them or against them. At times the client ascribes that bias to politics. Attorneys make large contributions to judicial campaigns. A recent article in the NYLJ described one upstate powerhouse law firm which routinely made contributions of $ 10,000 or more to judicial campaigns...
Suing Someone Elses' Attorney in Legal Malpractice
Posted on November 03, 2008Privity is the term which describes the relationship between plaintiff and a specific attorney. People are not permitted to sue attorneys, in legal malpractice, unless there has been a professional relationship between them. While it may seem obvious in a general sense, the devil is, as always, in the details...
Privity and Dismissal in Legal Malpractice
Posted on October 31, 2008Privity of representation by an attorney of the client is a bedrock concept of legal malpractice. One interesting situation is in union paid attorney representation. An alluring benefit of membership in a union is pre-paid or free legal representation in certain situations, This benefit may mean that there is no real attorney-client relationship sufficient for a legal malpractice action later, if things go wrong...
Charging and Retaining Liens in New York Legal Malpractice
Posted on October 30, 2008A common law retaining lien, known also as a "general possessory lien" entitles the outgoing attorney to "retain all papers, securities, or money belonging to the client" that came into the attorney's possession in the course of representation, as security for payment of attorney's fees" A retaining lien arises from Judiciary Law 475 and is a statutory lien upon service of a notice of lien, which attaches to the case papers, and allows the attorney to retain as in the "general possessory" lien...
Judgment in an ABC News Legal Malpractice Case
Posted on October 29, 2008In this legal malpractice case, Provenzano v. Pearlman [subscription], recently decided in EDNY, plaintiff was struck in the head by an errant television camera, while on the set of a news TV show. She went to trial in Supreme Kings and lost...
What Does it Take to Change Venue in Legal Malpractice
Posted on October 28, 2008An unintentionally amusing NY Law Journal article cataloged the social and professional prominence of this Suffolk law firm. When it was sued in Nassau, it moved to change venue to Suffolk. Supreme Court approved the transfer of venue. Per the CPLR one might move in the county where the action is brought or in the county where the action is hoped to be moved...
Plaintiff Loses Both Ends of A Legal Malpractice Case
Posted on October 27, 2008In this case, plaintiff counterclaimed for legal malpractice in the face of a claim for attorney fees. While not specifically stated, it appears that there were procedural bumps along the way. Not filing for a jury trial, defendant was not permitted to ask for one later...
An Obama Doubter and Legal Malpractice
Posted on October 24, 2008Besides the garden or varietal political questions over whom should be president, and even the more interesting question of whether a person who was born in a territory rather than a state is eligible to become president [Hawaii became the 50th state in 1959 and Obama was born in 1961, McCain was born at the Coco Solo Naval Air Station the Panama Canal Zone] comes this law suit by today's subject, Phil Berg...
Legal Malpractice Case Dismissed for Lack of Proximate Cause
Posted on October 23, 2008The elements of legal malpractice are well settled, as the Appellate Divisions write. One of the triumvirate is proximate cause. We've written in the past about the difference between "the" proximate cause and "a" proximate cause, see: Barnett v...
Snow & Ice Cases and Legal Malpractice
Posted on October 22, 2008New York, being in the northeast , has a rich history of snow & ice cases. A whole series of rules have arisen which accompany and inform the law of accidents on snow & ice. As one example, the precipitation must have already ended for a case to be viable...
The Most Common Cause of Legal Malpractice
Posted on October 21, 2008Court calendaring...being in court on all assigned conferences, motions, hearings, appearances , is the most frequent source of legal malpractice cases. Right behind are the late filings, blown statutes, and missed deadlines for documents. Here, a big law managing clerk discusses a calendar system for a world wide law firm...
Legal Malpractice and Collateral Estoppel
Posted on October 20, 2008In this Court of Appeals Decision Judge Smith goes as far back as Judge Cardozo to discuss the basics in this legal malpractice case. As a digression, Justice Benjamin Cardozo, who served both on the New York Court of Appeals and the US Supreme Court was fascinating...
Layer after Layer in Legal Malpractice
Posted on October 16, 2008Sometimes things go from bad to worse, and then decend even further in legal malpractice litigation. Here is an example. Plaintiff was injured, went to attorney 1 who settled the case without asking plaintiff, then went to attorney 2, then sued attorney 1 and 2...
Legal Malpractice Litigation in Every Sphere
Posted on October 15, 2008Perez Hilton, DJ Samantha and Legal Malpractice. If any further evidence on the ubiquitous nature of legal malpractice was needed, this story seals the issue. In the high stakes celebrity gossip blogworld, the DJ sued the Blogger Perez and lost...
Bad Faith and Legal Malpractice Litigation
Posted on October 14, 2008Attorneys deal with issues that have big numbers attached to them. Here is a story about an Indiana law firm that got into a big problem. The article does not say how the negotiation went bad, but the end result was that the law firm assigned its bad faith claim against its own insurer to the State, and walked away paying $ 50,000...
Legal Malpractice in the Hamptons
Posted on October 13, 2008One of the more interesting aspects of legal malpractice is its utter ubiquity. Look at any institution and lurking behind it may be a case of legal malpractice. It's not surprising, as attorneys are everywhere involved in transactional or litigative work...
Legal Malpractice for Negligent Supervision
Posted on October 10, 2008Plaintiff obtains a $ 1.2 million dollar verdict and pursues defendant to Florida, trying to collect the judgment. Defendant dies, and plaintiff's attorneys retain Florida counsel to go after the estate. Here in Whalen v DeGraff, Foy, Conway, Holt-Harris & Mealey ,2008 NY Slip Op 06342 [53 AD3d 912] ,July 17, 2008 ,Appellate Division, Third Department , things then went wrong...
Losing All Around in Legal Malpractice
Posted on October 08, 2008In New York one must show "actual innocence" in a legal malpractice case arising from criminal defense by the target attorney. This standard is very difficult to demonstrate, and generally requires either an acquittal or reversal. Here is a slightly different take from Connecticut, via the Legal Profession Blog...
CPLR 3211 and 3212 Motions in Legal Malpractice
Posted on October 07, 2008Plaintiff unsuccessfully defended a CPLR 3211 motion brought by attorney group number 1 in a legal malpractice case. Plaintiff was represented by group 1 and then mid-stream terminated them and moved to attorney group 2, who successfully settled the case...
Is the Failure to Investigate Legal Malpractice?
Posted on October 06, 2008The short answer is, Yes... Here is a more fully reasoned opinion from the Third Department in Thompson v. Seligman, 2008 NY Slip Op 06496 [53 AD3d 1019] ;July 31, 2008 ;Appellate Division, Third Department : "Plaintiff commenced this legal malpractice action against defendants on the ground that they failed to timely advise her that she may have a valid third-party claim...
Privity and Estates in Legal Malpractice
Posted on October 03, 2008The question of estate legal malpractice is fraught with standing problems. For example, if attorney drafts a will which is the product of undue influence, or demonstrably runs contra to the decedent's desires, who has the capacity to sue? In Texas the rule seems more relaxed than in NY...
The "Lost Opportunity to Settle" in Legal Malpractice
Posted on October 02, 2008In this case, Silva v. Worby recently decided, the Appellate Division reversed a dismissal under summary judgment over the potential settlement of a case. The lost opportunity to settle a case is not often discussed, but in this short decision the principal is crystal clear...
What Remains Confidential in Legal Malpractice
Posted on October 01, 2008Documents filed in matrimonial actions remain confidential. Anyone may look at court files, but not matrimonial court files.Domestic Relations Law § 235(1) . But what happens when a divorced plaintiff sues for legal malpractice based upon the divorce? Confidentiality gives way to disclosure...
What of Legal Malpractice and the Plaintiff?
Posted on September 30, 2008The New York Law Journal reported a bizare instance of attorney misconduct in which plaintiff's trial attorney acted so badly that the case was dismissed, the attorney charged with criminal contempt. tried and convicted. She now faces probation and suspension...
Arbitration Agreements and Attorney Fees
Posted on September 29, 2008Arbitration in attorney legal fee disputes are governed by 22 NYCRR 1200 and the following statutes. There is a complex statutory scheme, including specific forms, fee dispute committees, hearing schedules, and a body of law which accompanies the fee dispute proceedings...
Bad Blood after a Legal Malpractice Win
Posted on September 26, 2008Here is a different kind of Streisand Effect, this time in a post-legal malpractice setting. Leigh Jones at Law Com reports on a two firm battle. Plaintiff's firm Bland and Richter successfully sued Nexsen Pruet Adams & Kleemeier for legal malpractice and settled the case...
Legal Malpractice and the Medical Malpractice Statute of Limitations
Posted on September 25, 2008A familiar legal malpractice scenario arises when a law firm takes a medical malpractice case, or takes it "subject to investigation", then rejects the case just short of the med mal statute of limitations. Plaintiff is left in a quandary...
Legal Malpractice Insurance and Notice to Insurers
Posted on September 24, 2008A newly decided appellate case, Executive Risk Indem. Inc. v. Pepper Hamilton, LLP 2008 NY Slip Op 07044 Decided on September 23, 2008 Appellate Division, First Department Saxe, J. turns on the question of when a law firm must notify its insurer [or re-certify upon renewing the insurance] that there are no claims lurking against them, or whether they have a reasonable belief that there may be a claim against them which must be reported to the carrier...
Matrimonial Disclosure Rules in Legal Malpractice
Posted on September 23, 2008Is discovery in legal malpractice limited by the NY matrimonial rules? This recent case Kodsi v Gee ,2008 NY Slip Op 06938; Decided on September 18, 2008; Appellate Division, First Department holds that there are some limits. "Domestic Relations Law § 235(1) mandates that all papers filed in a matrimonial matter be designated as confidential...
Mega Political Legal Malpractice and Fraud Case
Posted on September 22, 2008This case, which was reported by Anthony Lin of the New York Law Journal involves at least 2 huge political names, and some off-shore investments. Mr. Giuliani needs no introduction; Mr. Hutchinson was a US Attorney, head of the DEA and a US Representative who was a manager in the Clinton Impeachment trial...
Intersection of Bankruptcy an Legal Malpractice
Posted on September 19, 2008This difficult and tragic medical malpractice - bankruptcy - legal malpractice case is worth studying. on the issues of bankruptcy stays and equitable estoppel, Not once but twice plaintiff has been non-suited based upon the statute of limitations...
Intersection of Bankruptcy and Legal Malpractice
Posted on September 19, 2008This difficult and tragic medical malpractice - bankruptcy - legal malpractice case is worth studying. on the issues of bankruptcy stays and equitable estoppel, Not once but twice plaintiff has been non-suited based upon the statute of limitations...
Federal Question, Jurisdiction and Legal Malpractice
Posted on September 18, 2008This is not a Federal law blog, and we will give only the highlights of the issue of Federal Question jurisdiction. There are several different ways in which one may qualify for jurisdiction in Federal District Court. One is diversity, and a second is Federal Question...
Wilson Elser, Ulico Casualty Co. and Legal Malpractice
Posted on September 17, 2008We reported this case months ago when Justice Marci Friedman in Supreme Court, New York County granted partial summary judgment and directed that Wilson Elser disgorge fees paid to it. Her theory was that Wilson Elser beached its fiduciary duty while it represented Ulico and at the same time assisting Legion Insurance Company in a competing business...
Receiver or Trustee in Legal Malpractice Case?
Posted on September 16, 2008Law.Com reports on a legal malpractice case involving Smith, Gambrell & Russell which may well turn on whether the plaintiff in the action is simply a trustee or a receiver of the plaintiff company. As one reads this scandal filled case, which includes the suicide of the plaintiff company's former CEO,Kirk S...
ConnectU, Facebook and Collateral Estoppel in Legal Malpractice
Posted on September 15, 2008Legal Pad Blog Reports that the ConnectU people who successfully sued Facebook are in a dispute with Quinn Emanuel over fees. We wonder if anyone has considered the collateral estoppel effect of fee arbitrations on legal malpractice cases. The teaser from Legal Pad is: "San Jose Federal Judge James Ware ruled that the settlement should be enforced and appointed special master George Fisher to do the enforcing...
More on the Mintz Legal Malpractice Case
Posted on September 12, 2008Anthony Lin wrote yesterday in the NYLJ about the Shelly v. Bodian case, Index No. 602254/05, currently being litigated in Supreme Court, New York County., The case highlights some interesting principals of legal malpractice which warrant examination...
Self-Aggrandizement and Legal Malpractice
Posted on September 11, 2008Anthony Lin writes today in the NYLJ about the Shelly v. Bodian case, Index No. 602254/05, currently being litigated in Supreme Court, New York County, and discusses a recent decision of Justice Emily Jane Goodman. Justice Goodman has a fair number of legal malpractice cases on her docket...
If there are no damages, it is not Legal Malpractice
Posted on September 10, 2008It's often surprising, when reading a newly published case, at the wide difference between plaintiff's take on the case, and the defense presented by his former attorneys. The attorneys, who just a short period earlier had been plaintiff's paragons, now have a diametrically opposed viewpoint...
Client Sells Privileged Communications in Legal Malpractice
Posted on September 09, 2008This seems to be a new twist. It dovetails with our earlier discussions of new venues in legal malpractice, and cases being brought against lawyers by persons other than their clients. Here, former opponents sue the attorneys after bargaining with the bankrupt client and obtaining communications between bankrupt client and its attorney...
Legal Malpractice Claims Up, But How Much?
Posted on September 08, 2008Legal Pad discusses the ABA ABA’s Standing Committee on Lawyers’ Professional Liability Report on Legal Malpractice in this report. "Legal malpractice claims have gotten more expensive. We think.The claims that result in the highest of indemnity payments appear to be on an upward march, according to an ABA study unveiled this morning at the ABA’s national legal malpractice conference in San Francisco...
California Legal Malpractice Case and Wilson Elser
Posted on September 05, 2008In this short article [no link to the decision] it is reported that in the Cal City v. Wilson Elser case, a legal malpractice jury verdict of $ 17 million + has been dismissed and reduced to below $ 1 million dollars. " California appeals court has upheld a $941,000 legal malpractice verdict against Wilson Elser Moskowitz Edelman & Dicker, but has thrown out $1...
Statute of Repose ends Legal Malpractice Case
Posted on September 04, 2008Legal Profession Blog reports this dismissed legal malpractice case. Before reading, please see the last paragraph in which the court holds that there still is a remedy available. "The North Carolina Court of Appeal today held that a claim of legal malpractice was barred by the statute of repose against a lawyer who had dismissed his client's accident claim and concealed the dismisal through a series of false representations...
On again and Off Again Judgment in Legal Malpractice
Posted on September 03, 2008We reported on this case, and its little known term, Prothonotary last month. Now the Times Leader reports: "Luzerne County Prothonotary Jill Moran has once again entered a $3.4 million judgment against a law firm in a hotly contested legal malpractice case that included allegations of bias against Judge Mark Ciavarella...
How Much Investigation is Necessary in Legal Malpractice?
Posted on September 02, 2008Plaintiff is injured at work and sues the third-party. Plaintiff asks attorney whether she may sue her employer. The answer is "No", isn't it? After all, one may not sue one's employer, correct? In a fine example of how much investigation may be necessary, Thompson v Seligman 2008 NY Slip Op 06496 Decided on July 31, 2008 Appellate Division, Third Department reports that plaintiff has raised a question of fact whether defendant attorneys investigated enough...
A World Wide Conspiracy and Legal Malpractice
Posted on August 29, 2008Reading this case, in which there is an ancillary legal malpractice case, reminded us of the ubiquitousnature of legal malpractice. This case, ELIOT I. BERNSTEIN, et al., Plaintiffs, - against - STATE OF NEW YORK, et al., Defendants.07 Civ. 11196 (SAS); UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK 2008 U...
Whistleblower Legal Malpractice?
Posted on August 28, 2008We often remark that legal malpractice may be found everywhere, and in many an unusual circumstance. The "Big Dig?" Sure. Here is a story from NY Lawyer about a whistle blower whose case was overlooked: "A would-be whistle blower is suing Washington-based firm Phillips & Cohen in the U...
Legal Malpractice and Compelled Settlements
Posted on August 27, 2008Matrimonial law is rife with questions of legal malpractice. As in most spheres of the law, settlements take place in the majority of cases. The general rule in legal malpractice is that one may sue the attorney after a settlement if the settlement was "effectively compelled" by the actions of the attorney...
A Triple Play in Legal Malpractice
Posted on August 26, 2008Forget about the Kentucky statute of limitations issue [although the discovery v. mistake date which starts the statute running is important here in NY]. Focus on the bad luck and the series of mistakes which take place in this poor plaintiff's case discussed in the Kentucky Court Report: "Lane appeals TC's grant of summary judgment to Hugh Montgomery Richards on her legal malpractice claim holding that it was not filed within the one-year statate of limitations...
Legal Malpractice in Varied Settings
Posted on August 25, 2008Legal malpractice sometimes seems to be the language franca in law news. It can show up in any setting. Here is a most unusual story from Law.com [link unavailable]: "A legal malpractice lawsuit against Baker, Donelson, Bearman Caldwell & Berkowitz stemming from a case involving a 6-ton marble sculpture of Jesus Christ's face may proceed to trial...
Philadelphia Legal Malpractice Case goes through Appeals
Posted on August 22, 2008Huber v. Taylor is the case. Here in this extensive report from Litigation and Trial Blog is the full story of a legal malpractice/disgorgement case and its appeals. "The prior opinion, Huber v. Taylor, 469 F.3d 67 (3d Cir. 2006), was one of the more important recent opinions for "lawyer's lawyers" in the Third Circuit...
Daubert and Legal Malpractice?
Posted on August 21, 2008One of the more interesting aspects of legal malpractice litigation is the ferocity with which defendant attorneys will employ in their defense...especially when contrasted with the particulars of plaintiff's complaint...usually that the attorneys were way below lackluster when they were prosecuting the underlying case...
More Patent Legal Malpractice News
Posted on August 20, 2008It's all over the law news today, and here is NY Lawyer's report on the Kirkland Ellis patent legal malpractice case in Illinois: "In an Illinois state court filing last week, Kirkland & Ellis is being sued for legal malpractice by a former client that blames the law firm for the loss of a patent case that cost the company $18...
Plaintiff Loses Case, then Loses Legal Malpractice Case
Posted on August 19, 2008The outcome in this case is not unique; many legal malpractice cases are dismissed prior to trial, often on the basis that there is no "proximate cause" or "there is documentary evidence that plaintiff cannot prove the underlying case." Terrance Wray, appellant, v Mallilo & Grossman, etc...
Legal Malpractice and Hip Hip Journalism
Posted on August 18, 2008One of the more fascinating aspects of legal malpractice is the large catchment area. That jargon, from psychology simply means that almost everyone uses attorneys, whether the largest CEO, or a hip hop magi zine employee who alleges sexual harassment...
Nixon Peabody in Another Legal Malpractice Suit
Posted on August 15, 2008New York Lawyer reports that a legal malpractice case in Philadelphia may continue as is a case in New Jersey. "Just a few weeks after a malpractice claim against Nixon Peabody was allowed to go forward in New Jersey, a Philadelphia judge has allowed to continue a separate, but similar, malpractice action against the firm in Pennsylvania, denying its motion for judgment on the pleadings...
Back Story of Misery in Legal Malpractice Case
Posted on August 14, 2008In Legal Malpractice cases, the subtext is consistently one of betrayal, or at best a shortcoming. Potential clients report that their attorney misled them, or abandoned them, or simply did not do the work. These claims are often true, to a shocking and heartrending degree...
Local Statute of Limitations Dooms Legal Malpractice Case
Posted on August 13, 2008As an added reason why one should never, never, never dip toes in another state's legal proceedings, see this story on the difference between statute of limitations in an oral versus written contract in legal malpractice. "A legal malpractice claim was time-barred because it was subject to a shorter statute of limitations for actions based on oral contracts, a U...
Again, that Privity Thing in Legal Malpractice
Posted on August 12, 2008Who may sue the lawyer? Is it the corporation / LLC / etc. or the individual? Here, in this Schulte Roth case [McCagg v. Schulte Roth] from Supreme Court, New York County, partners who are suing each other find that neither may individually sue the attorneys involved for legal malpractice...
Jailed and Now Must Pay Legal Malpractice Award
Posted on August 11, 2008Campbell Holder, an attorney in Manhattan has the dubious honor of being a jailed legal malpractice defendant. A significant judgment was just entered against him in Federal District Court. The New York Law Journal reports:"An imprisoned former attorney was ordered to pay $250,000 in damages to a client whose case against the Metro-North Commuter Railroad was lost because the lawyer failed to oppose a motion for summary judgment...
Unusual Settings for Legal Malpractice or its Twin
Posted on August 08, 2008Continuing a trend for bankruptcy/referee/trustee/ unusual settings for legal malpractice litigation, here is an article from NY Lawyer about the settlement of a large legal malpractice "disentanglement" case:"Wilson Sonsini Goodrich & Rosati has paid $9...
The Alter Ego in Legal Malpractice
Posted on August 07, 2008Single stockholder corporations are quite common. Entrepreneurs know that they must start a corporation, and they often equate the corporation's activities with their own, for they, of course, are the CEO, CFO, COO, and sole shareholder. Here is an example of what can go wrong...
More Patent Law Legal Malpractice News
Posted on August 06, 2008Yesterday we reported on a Nebraska case in which it was found that simply because a legal malpractice case came from a patent matter, it was not a federal question, sufficient for US District Court jurisdiction.Now, hot on the heels, is this case: Singh v...
Is Patent Law Legal Malpractice always a Federal Question?
Posted on August 05, 2008Jurisdiction in Federal District Court...harks back to the first few weeks of law school. Well, there's diversity...and...and federal question. So, a legal malpractice case arising from a patent transaction...state court or federal district court?Many the removed case has been found to have federal jurisdiction, but this Nebraska Case says that it may be brought in State Court...
Rogue Associate or Legal Malpractice in Thelen Reid Case
Posted on August 04, 2008Here is a convoluted intelectual property - patent legal malpractice case. Thelen Reid answers, and with its answer, raises more questions. Here, from Law.Com:"Thelen argued that the company "and/or" third parties contributed to the IP losses and that IVI waived the alleged conflicts of interest...
2d Circuit Distinguishes between Civil and Criminal Legal Malpractice Cases
Posted on August 01, 2008Criminal Defense practitioners enjoy a special dispensation in the legal malpractice world. Plaintiff there must be able to allege [in New York] actual innocence. One need not allege freedom from wrong in the civil end of things.In Hitham Abuhouran, Plaintiff-Appellant, -v...
A "High Bar" in Bankruptcy Legal Malpractice
Posted on July 31, 2008In this Bankruptcy-Legal Malpractice Case In re Monahan Ford Corp. of Flushing, Debtor. Richard J. McCord, as Chapter 7 Trustee of the Estate of Monahan Ford Corp. of Flushing, Plaintiff -against- Jaspan Schlesinger Hoffman, LLP, Defendant. Case No. 02-23134-CEC, Chapter 7, Adv...
The Boies Case and Statute of Limitations in Legal Malpractice
Posted on July 30, 2008A recent 3d Department Case gives a well reasoned, and well explained discussion of when the statute of limitations starts to run in legal malpractice situations where the attorney seeks to be relieved. The Third Department has a unique case, Aaron v...
Thelen Reid's Legal Malpractice - Patent Case
Posted on July 29, 2008Law.Com reports that:"A former tech client of Thelen Reid Brown Raysman & Steiner has filed a malpractice complaint against the firm and one of its partners and contends the firm concealed that it was simultaneously working for a key competitor...
"Loss of Chance" in Med Mal and Legal Malpractice
Posted on July 28, 2008Walter Olson at Overlawyered brings us this reminder of the evolution of medical malpractice and legal malpractice. They spring from the same nexus, but move on to different outcomes, rules, and principals. Could this be because judges decide the law for doctors and lawyers differently?"In a key victory for plaintiffs and their lawyers, the Massachusetts Supreme Court has for the first time adopted the “loss of a chance” doctrine, which allows plaintiffs to recover money even without having to show that it was more likely than not that the charged medical negligence made the difference in their recovery or survival...
Yet Another Take on Collateral Estoppel in Attorney Fee Arbitrations
Posted on July 25, 2008The Law Profession Blog reports a New Mexico case which intersects with the collateral estoppel question of legal malpractice and attorney fee arbitrations. Is legal malpractice a compulsory counterclaim to an attorney fee suit? "The New Mexico Supreme Court held that a legal malpractice action need not be brought as a compulsory counterclaim to an action brought by the law firm assserting a charging lien against the former client...
Everyone is Talking about "BigLaw" Legal Malpractice
Posted on July 24, 2008Here is an exerpt from the Wall Street Journal law blog on two legal malpractice cases, one involving Nixon Peabody and one involving Wilmer Hale."Ah, clients. Can’t live with ‘em, can’t live without ‘em. Judging from a couple stories out today, executives from a couple of law firms might have found themselves muttering the above statement in recent days...
How Responsible is an Attorney for the Legal Malpractice of Another ?
Posted on July 23, 2008Attorneys refer and have cases referred to them all the time. Attorney to attorney referrals are the lifeblood of the law industry, and referral fees are not uncommon. The law of attorney fees is a body unto itself, and legal malpractice involving referred cases is not uncommon...
Bad Decisions and Bad Faith in Legal Malpractice
Posted on July 22, 2008Following the trend of bankruptcy trustees, receivers and other persons holding the right to sue for others, comes this Indiana case in which the Indiana Department of Insurance has become the plaintiff in a legal malpractice/bad faith litigation which the law firm settled for $ 50,000 and which now proceeds against the insurer for $ 18,000,000...
Is This the Oldest Legal Malpractice Case in New York?
Posted on July 21, 2008This case from the Appellate Term illustrates the timelyness of a counterclaim. It does not discuss what would have happened if the counterclaim were not timely. Even an untimely counterclaim may continue as an offset to the claim itself, but may not be pursued for a value above that of the claim...
No one Wins in Summary Judgment in this Legal Malpractice Case
Posted on July 18, 2008Alan Birnbaum, appellant, v James Misiano, et al., respondents. (SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT 2008 NY Slip Op 5638; Beginning in the late 1990's, the defendant attorney James Misiano represented the plaintiff, [*2] Alan Birnbaum, with respect to loans Birnbaum made, or was planning to make, to others...
Wife Sues Both Attorneys, Loses Against One in Legal Malpractice
Posted on July 17, 2008Privity is an essential in legal malpractice, and application of this principal can lead to skewed results. As an example, attorney writes negligent will for decedent, which affects beneficiaries and the decedent's estate. May beneficiaries sue? May estate sue? Sometimes not...
Judiciary Law 487 in the Second Circuit and the Court of Appeals
Posted on July 17, 2008Judiciary Law 487 is a statute which defines a misdemeanor and creates a private cause of action, with treble damages, §487. Misconduct by attorneys. An attorney or counselor who: 1. Is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party; or, 2...
An Amusing Way out of Legal Malpractice Litigation
Posted on July 16, 2008The California Blog of Appeal discusses this amusing attempt by a target attorney to get out from under a legal malpractice case. Styles v. Mumbert is a California case in which...well, let Greg May describe it:"You represent the defendant in a lawsuit...
Ethical Violations Doom Attorney's Fee in Legal Malpractice
Posted on July 15, 2008Plaintiff retained a big name matrimonial firm to represent her. Then she hired a legal malpractice firm to sue the matrimonial firm. The legal malpractice case was dismissed. Apparently she did not want to pay the legal malpractice firm who moved for a quantum meruit fee hearing...
Collectibility in Legal Malpractice: Whose Burden Is It?
Posted on July 14, 2008From Day on Torts we learn that the "Ohio Supreme Court has ruled that a plaintiff in a legal malpractice case must prove the collectibility of damages" The case is Paterek v. Peterson & Ibold, No 2006-1811 (Ohio June 18, 2008)We've written about this in the past, both here and in the New York Law Journal...
More Recent Cases in Legal Malpractice
Posted on July 11, 2008Veras Investment Partners, LLC, et al., Plaintiffs-Appellants, v Akin Gump Strauss Hauer & Feld LLP, Defendant-Respondent. 3812N, 600340/07 SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT 2008 NY Slip Op 5563; June 19, 2008, Decided The court granted a motion by defendants requiring plaintiffs to divulge attorney client discussions ‘granting defendant's motion for a declaration that plaintiffs waived the attorney-client privilege by placing certain subjects "at issue," and to compel the disclosure of otherwise privileged communications and attorney work product, unanimously modified, on the law and the facts, disclosure of otherwise privileged materials relating to defendant's 2002 advice to plaintiffs and the October 2003” “In this legal malpractice and fraud action, defendant moved for an order compelling disclosure of communications plaintiffs may have had with their nonparty counsel as well as the work product of such counsel...
Some Recent Cases in Legal Malpractice
Posted on July 10, 2008MITCHELL PHILLIPS AND DALE PHILLIPS, PLAINTIFFS-RESPONDENTS, v MORAN & KUFTA, P.C., JOSEPH J. MORAN, ESQ., RICHARD J. KUFTA, ESQ., DEFENDANTS-APPELLANTS, ET AL., DEFENDANT. 718 CA 07-02711 SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT 2008 NY Slip Op 6025; July 3, 2008, Decided JUDGES: PRESENT: SCUDDER , P...
Is Plaintiff Bound by Documents Signed in Legal Malpractice?
Posted on July 10, 2008In this Lexology report, the lawfirm Lewis Brisbois Bisgaard & Smith LLP argues that a fall decision of the Court of Appeals re-affirms the principal that a legal malpractice claim might proceed even in fhe fact of documents signed by plaintniff or its predecessor...
Proskauer Rose Legal Malpractice Case in Florida
Posted on July 09, 2008Law.com reports that the Proskauer Rose legal malpractice case continues, but that a discovery dispute over deposition documents has been decided in Proskauer's favor."Proskauer Rose will not be required to turn over internal working papers in a legal malpractice suit filed by Boca Aviation, the 4th District Court of Appeal ruled Wednesday...
Hypothetical Judgments and Legal Malpractice
Posted on July 07, 2008As part of the "but for" rule, a hypothetical judgment which plaintiff would have won, except for the attorney's mistake, is the measure of damages in legal malpractice. We have written about this in the New York Law Journal. [4/20/07] The defense of collectibility is that even if successful in the case below, plaintiff would not have been able to collect the hypothetical judgment...
Legal Malpractice in England
Posted on July 06, 2008NY Lawyer [and Law.com] report that Linklaters is being sued for $55 million in "one of the largest cases against a top U.K. law firm in recent times. The Magic Circle firm is preparing for a 20-day trial in the High Court next January over claims it gave negligent advice to Baltic telecoms company Levicom...
More Conflict of Interest in a Penn Legal Malpractice Case
Posted on July 03, 2008The Times Leader reports on a $ 3.4 Million legal malpractice action taking place there, now, post verdict. The twist is that the winner of the case, executor of an estate had asked the trial judge to recuse himself because of financial conflict of interest...
Sometimes An Expert is Not Necessary in Legal Malpractice
Posted on July 02, 2008This case from New Jersey illustrates the border line between behavior that is so bad that an expert is not needed at trial to testify on whether there was a deviation, and behavior that is bad, but still requires an expert. The NJ court found in TARUTIS, v...
Waiving Arbitration in Legal Malpractice
Posted on July 01, 2008Arbitration clauses in attorney-client retainer agreements is a trend. Law firms, who presumably know the costs and efficiencies of litigation choose arbitration in the belief that most cases they are involved in will be a fee dispute. Legal malpractice, either as a counterclaim to a fee demand or on its own does sometimes intrude, however...
Morris J. Eisen Legal Malpractice Case Proceeds
Posted on June 27, 2008He was one of the best known, and feared plaintiff's attorneys in New York. He had entire floors of offices at the Woolworth building in lower Manhattan, and early every morning a large number of trial attorneys would gather for breakfast and pick up their day's work...
Texas Trifecta of Legal Malpractice
Posted on June 26, 2008We reported this confluence of Politics, Legal Malpractice and big estate probate work several weeks ago. Defendants were R. Christopher Bell, the 2006 Democratic gubernatorial nominee and a former U.S. congressman; Annette M. Henry; and their former firm, Bell & Henry in Houston...
Celanese v. Kaye Scholer in a New Legal Malpractice Case
Posted on June 25, 2008Here, in an early report from the Competition Law 360 Blog is a report that:"Kaye Scholer LLP is facing a legal malpractice suit over the way attorneys handled several antitrust suits accusing Celanese Americas Corp. of fixing the price of polyester staple fiber...
Receiver v. Attorney in Legal Malpractice
Posted on June 25, 2008In a familiar setting, this time the case is receiver v. former attorney. Other times it is bankruptcy trustee v. attorney. Southwest Exchange, a former Nevada financial company involved in litigation and in receivership ended 2007 owing $98 million to 130 real estate investors...
"At Issue" Discussions and Legal Malpractice
Posted on June 24, 2008To what extent may a legal malpractice defendant seek disclosure of privileged discussions? The general answer is if they are "at issue" in the legal malpractice. Here in the Akin Gump legal malpractice case is a good example. From Law...
Collectiblitiy and Hypothetical Judgments in Legal Malpractice
Posted on June 24, 2008As part of the "but for" rule, a hypothetical judgment which plaintiff would have won, except for the attorney's mistake, is the measure of damages in legal malpractice. We have written about this in the New York Law Journal. [4/20/07] The defense of collectibility is that even if successful in the case below, plaintiff would not have been able to collect the hypothetical judgment...
To Whom is the Duty Owed in Legal Malpractice
Posted on June 23, 2008Decedents, Estates, Administrators, Lawsuits. This area of legal malpractice is extraordinarily twisted and difficult when asserting privity. Take for example the question of an executor suing the decedent's attorney [who prepared the will] or the estate's attorney [who offered the will for probate...
Judge Recuses Himself in Legal Malpractice Case
Posted on June 20, 2008We reported on this Pennsylvania case last week, having come across several previously unknown words in the decision and article, such as prothonotary. Here is a follow up article in which the judge recuses himself after the verdict."Luzerne County President Judge Mark A...
How Do You Forget to File a $19 Million Legal Malpractice Case?
Posted on June 19, 2008Chicago Business Litigation Lawyer Blog reports that a huge class action legal malpractice case against DLA Piper Rudnick has been dismissed. Plaintiff's and defendants had entered into a tolling agreement that was amended and went on for several years...
Sanctions and Frivolous Behavior in Legal Malpractice
Posted on June 18, 2008Here, we have Section 130 and Rule 11. In South Carolina, there are frivolous law suit penalties and sanctions too. Ex Parte Gregory v. Malloy. is the rather unflattering story of one legal malpractice attorney who went ahead and started a ridiculous suit, all for naught...
Must the Legal Malpractice Plaintiff Appeal in Florida?
Posted on June 17, 2008In New York, there is no absolute requirement to appeal a negative outcome prior to bringing a legal malpractice action, nor is there a requirement "not to settle" a case prior to bringing a legal malpractice case. The standard is whether plaintiff was "effectively compelled" to settle...
Legal Malpractice: A Case Within a Case, Within a Case, Within ...
Posted on June 16, 2008This is the type of case that gives litigation [and especially legal malpractice litigation] a bad name. Phung v. Summerville is a well written, reasoned NJ decision which discusses an inexplicable situation. Plaintiff has a nice 12 unit building in Elizabeth NJ...
In California, Notice to Admit Has Bite in a Legal Malpractice Case
Posted on June 13, 2008In New York a Notice to Admit is a discovery device which is used, but which has a small part in the panaply of discovery weapons. Failure to admit that which is later provded is subject to sanctions and costs, but nominal costs are the usual outcome...
Keeping the File, Legal Malpractice and the Retaining Lien
Posted on June 12, 2008We've written about retaining and charging liens, the Judiciary law, and how hearings on attorney fees can have collateral estoppel effects on legal malpractice litigation. Here is aConnecticut case which discusses the same issues, albeit in a habeas corpus and "file retention" setting...
Pennsylvania Legal Malpractice and Ballard Spahr
Posted on June 11, 2008Law.Com reports that the law firm of Ballard Spahr won a jury trial yesterday. Beyond the usual legal malpractice issues and testimony, there was plenty of star power [in a law sort of way] as " famed Florida litigator Roy Black of Black Srebnick Kornspan & Stumpf represented Epstein along with Boca Raton-based Lance W...
Right to Independent Counsel in Malpractice Cases
Posted on June 10, 2008This case, Elacqua v. Physicians Reciprocal Insurers is a medical malpractice matter, in which the doctors had both covered and non-covered claims against them Naturally, the insurance company had coverage for certain of the claims. Although this case is in the medical malpractice area, it is fully applicable to legal malpractice...
Bankruptcy Trustee's Action in Legal Malpractice against Alston & Bird
Posted on June 10, 2008Law.Com reports that "Alston & Bird and and the bankruptcy trustee for one of its former clients, the beleaguered Friedman's Jewelers Inc., are on the verge of settling a suit over allegations that the firm committed legal malpractice. ""Alston & Bird, which served as Friedman's outside general counsel from the 1990s until the company terminated their relationship in 2004, contributed to some of those troubles, according to Alan Cohen, Friedman's bankruptcy trustee...
Legal Malpractice, Judiciary Law 487 and Frivolous Conduct
Posted on June 09, 2008The case of Rozen v. Nite Rider Group, Inc. seems to be going on in three different venues. There was the original case, based on loans and property noldings, there is a legal malpractice case, and apparently there is also a Judiciary Law 487 case too...
Shearman & Sterling Legal Malpractice Case Continues
Posted on June 06, 2008An action agains tShearman & Sterling for failures in a loan transaction continues, after the First Department affirmed denial of a motion to dismiss. In Garten v. Shearman & Sterling. "Plaintiff has stated a cause of action for legal malpractice by alleging that "but for" defendant's failure to prepare and procure documents necessary to provide him with a first-priority security interest, he would have been able to recover the amounts owed to him by the defaulting borrower (see AmBase Corp...
The 2d Circuit on "Strategic Decisions" in Legal Malpractice
Posted on June 05, 2008One unique aspect of Legal Malpractice is the principal that an attorney may not be held responsible for a strategic decision, even if it is a loser. So long as it is reasonable, both subjectively and objectively, the attorney will not be held in legal malpractice...
Will Business Relationship with Attorneys Doom this Legal Malpractice Verdict?
Posted on June 05, 2008One of the more pleasant aspects of reading cases early in the morning is the occasional new word or concept that leaps from the page. This article discusses a court official called the "Prothonotary," A prothonotary is an elected Clerk of the Court of Common Pleas Civil Division...
Hip Hop, Libel, Sexual Harassment and Legal Malpractice
Posted on June 05, 2008One of the more fascinating aspects of legal malpractice is the large catchment area. That jargon, from psychology simply means that almost everyone uses attorneys, whether the largest CEO, or a hip hop magi zine employee who alleges sexual harassment...
Vexatious Litigant Precluded in both State and Federal Court Legal Malpractice Case
Posted on June 04, 2008It takes a lot of vexing conduct to be foreclosed from bringing an action in state court. One has to be very, very obstinate and really tick the judge off. To do so in a legal malpractice setting is even harder, because the general feeling is that plaintiff must have been hurt by a lawyer before bringing the suit, and perhaps a little slack permitted...
"But For", Proximate Cause and Legal Malpractice
Posted on June 03, 2008Today's Outside Counsel Column in the New York Law Journal features our discussion of Barnett v. Schwartz, 47 AD3d 397 (2d Dept, 2007) which we consider to be revolutionary. The question of "the proximate cause" versus "a proximate cause" is subtle, but of significant importance in the field of legal malpractice...
Sly and the Family Stone's Legal Malpractice Case
Posted on June 03, 2008Still popular, and still selling records, Sly and the Family Stone were the subject of a film. Unfortunately, the film and use of many recordings was without out their consent. Potential litigation followed. Problem? While the attorneys were negotiating and battling from their offices, they allowed the statute of limitations to run...
Wilson Elser loses and wins its own Legal Malpractice Case
Posted on June 02, 2008Here is an article from NY Lawyer about the Wilson Elser legal malpractice case. They are still in for more than $ 941,000 but have cut about $ 1.7 million from the verdict. "A California appeals court has upheld a $941,000 legal malpractice verdict against Wilson Elser Moskowitz Edelman & Dicker, but has thrown out $1...
Legal Malpractice Case Dismissed in Contractor's Case
Posted on May 30, 2008In this case. Gabrielli v Dobson & Pinci ,2008 NY Slip Op 04749 ,Decided on May 27, 2008, Appellate Division, First Department, two attorneys represented the plaintiff contractor in succession, which was unable to prosecute its case for contract damages...
Wiley Rein and Blackwater Legal Malpractice Case Ends
Posted on May 29, 2008Law.Com reports that the Wiley Rein legal malpractice case has been dismissed. This was a case with major players: "The Wiley team that defended Blackwater in the underlying case consisted of Fred Fielding, now White House counsel; Barbara Van Gelder, now a partner at Morgan, Lewis & Bockius; Scott McCaleb, still a partner at Wiley; and Margaret Ryan, now a judge for the U...
Texas and Disclosure of Legal Malpractice Insurance
Posted on May 28, 2008This article from the Southeast Texas Record amplifies the current debate there over mandatory disclosure of legal malpractice coverage. "There's a movement in Austin to change this. Last week, a state Supreme Court task force voted down a measure to require Texas lawyers who don't carry malpractice insurance to tell potential clients beforehand...
"I would not have signed it" defeats Legal Malpractice Case
Posted on May 28, 2008A frequent defense in legal malpractice is that while a mistake has been made, plaintiff is not hury anyway. Here is one example of that defense in a New Jersey Case. THE MAKE UP BAR, Inc.Plaintiff-Appellant, vs. COOPER, LEVENSON, APRIL, NIEDELMAN & WAGENHEIM, P...
Judiciary Law 487 and Legal Malpractice
Posted on May 27, 2008This case illustrates how difficult it may be to prosecute a Judiciary law 487 case in a legal malpractice setting. Sara Kinberg, Plaintiff-Appellant, v Heidi Opinsky, Defendant-Respondent. SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT , 2008 NY Slip Op 4616Decided May 22, 2008...
Arbitration and Legal Malpractice Litigation
Posted on May 23, 2008An unrelated article in the NYLJ related a cycle in the franchising industry yesterday...from settlement by litigation, through resolution by arbitration, and then on to wide-scale mediation. Legal malpractice may well be following the same cycle...
A Lesson in Bankrutpcy Legal Malpractice
Posted on May 22, 2008Do you understand Chapter 11 Bankruptcy practice? Can you define "cram down" or "impaired class" or "non-recourse loans"? We can't, but this case is a primer in Chapter 11 practice and the legal malpractice which may arise in a case...
When is it So Bad that You Don't Need an Expert in Legal Malpractice
Posted on May 22, 2008This case from New Jersey illustrates the border line between behavior that is so bad that an expert is not needed at trial to testify on whether there was a deviation, and behavior that is bad, but still requires an expert. The NJ court found in TARUTIS, v...
Iowa Legal Malpractice and a Recusal Motion
Posted on May 21, 2008The politicians are in Iowa, the primaries started there, and today we report on a legal malpractice and recusal case in Iowa. Here two different strands of problems for the legal malpractice plaintiff are twisted together. One of the strands concerns the judges comment about the legal malpractice plaintiff and defendant: "one is dishonest, and I had lunch with the other...
Do Texas Attorneys have Legal Malpractice Insurance, and Do Texans Care?
Posted on May 21, 2008This article from The Statesman.com discusses news about a special group of lawyers, appointed by the Texas Supreme Court who are to vote today. They are looking at " a proposal that could require lawyers to tell clients whether they have malpractice insurance...
Attorney Keeps Legal Malpractice Insurance Coverage
Posted on May 20, 2008Wiley Rein reports on a case in the Ninth Circuit, arising in Arizona concerning prior acts exclusions in legal malpractice coverage:"The United States Court of Appeals for the Ninth Circuit, applying Arizona law, has reversed a district court's entry of summary judgment in favor of a professional liability insurer whose policyholder failed to list its inadequate representation of former clients as a potential claim on its policy application...
Legal Mapractice Judgment Not Dischargeable in Legal Malpractice
Posted on May 19, 2008In re MICHAEL ROY BRESSLER, Defendant. WILLIAM FORREST and SHAWN STEIBEL, Plaintiffs, v. MICHAEL ROY BRESSLER, Defendant. STEVEN STRUM, Plaintiff, v. MICHAEL ROY BRESSLERHere is a long SDNY Bankruptcy case discussing a series of legal malpractice proceedings, malicious behavior and non-discharageablity...
Venue Still Important in Legal Malpractice
Posted on May 16, 2008In this pro-se v. pro-sen legal malpractice case between a pro-se plaintiff from Queens and a pro-se defendant from New Jersey, we see a discussion of the correct way to challenge venue. Kuzmin v. Nevsky, brought in New York County is moved to Queens:"The plaintiff commenced this action in the Supreme Court, New York County, to recover damages for legal malpractice...
Is it Legal Malpractice if you Don't Do the Work When you Don't Get Paid?
Posted on May 15, 2008Here is a "brief chambers opinion" from Judge Newman: Bennett, petitioner v. Mukasey, respondent ,U.S. COURT OF APPEALS, SECOND CIRCUIT. As you may guess, it was not Mukasey whose legal work was left unfinished. Bennett's attorney filed a petition, and then when the legal fees went unpaid, allowed it to be dismissed...
Excess Carriers and the Insured's Attorney in Legal Malpractice
Posted on May 15, 2008Here is an Indiana Case in which the concept of equitable subrogation is attempted in a legal malpractice case. Here, insurer seeking equitable subrogation loses. In Queerey & Harrow LTD v. Transcontinental Ins. Co. two hurdles face the insurer: privity and policy...
Defense Attorney and Legal Malpractice
Posted on May 14, 2008Attorneys for insurance carriers are rarely the subject of a legal malpractice case...it is much more often plaintiff's attorney. The Poppe law firm blog reports this case of a car insurance defense attorney who goes to trial on the underlying auto accident without ever meeting with the client, and to make matters worse, admits liability without the client's consent...
Kentucky and Texas take on the Rule in Legal Malpractice
Posted on May 14, 2008In New York legal malpractice litigation, the defendant attorney may not ask for a set off in the amount of the hypothetical contingent fee. That is, defendant attorney is sued for losing a personal injury action argues that the damages must be reduced by one-third, the amount plaintiff would have had to pay to an attorney, and which plaintiff will now be getting as a wind-fall...
A Truckfull of Marijuana and Legal Malpractice
Posted on May 13, 2008Plaintiff was driving a truckfull of marijuana when he was stopped and arrested. He says in the legal malpractice complaint that he spent less than an hour with his attorney prior to pleading guilty. He believes that this was legal malpractice, and the criminal trial [appellate ?] court agreed with him to a certain extent...
Sued Too Many Times for Legal Malpractice Insurance?
Posted on May 13, 2008Some law firms are sued for malpractice, and some sued twice or thrice. Here is a story from the Poppe Law firm blog about an Augusta law firm that has been sued so many times, its first carrier refused to renew the policy of legal malpractice insurance, and the second carrier won't settle a current legal malpractice case...
3 Lessons from this Legal Malpractice Case
Posted on May 12, 2008The recently decided DeLuca v. Goldberger provides several interesting lessons in legal malpractice. The first is that attorneys who take on cases and then tell the client shortly before the statute of limitations runs, or shortly before a case must be restored, or shortly before some other deadline fact a legal malpractice problem...
"The Strong Arm" Attorney and Legal Malpractice
Posted on May 09, 2008This short news article is probably wrong on several counts of its report, but the story itself is compelling. Client goes to a personal injury attorney Frank "The Strong Arm" Azar with a car accident case and then the case is settled for $ 25,000...
Does The Public Want [Need} to Know about Legal Malpractice?
Posted on May 09, 2008In this article from Law.Com a question in Texas mirrors similar issues in California, Nevada and Ohio. In the recent past there have been surveys, bar association meetings, proposed legislation and other indicia of interest in either mandatory legal malpractice insurance or required insurance disclosure to clients...
West Virginia, Mandatory Disclosure of Legal Malpractice Insurance
Posted on May 08, 2008This report from the West Virginia Record is an eye-opener on politics and judicial elections. The tip of the iceberg is an aside in which an attorney has been suspended for failing to disclose whether he has legal malpractice insurance. The story is mulit-facited, however:"MORGANTOWN - E-mails in state Supreme Court candidate Bob Bastress' West Virginia University College of Law account show he and others speculating on the race...
Termination For Cause in Legal Malpractice
Posted on May 07, 2008Good cause for termination is not the same as malpractice. Attorney malpractice, the deviation from good and accepted practice, which proximately damaged the party, in which, but for the negligence of the attorney there would have been a different or better result is not the same as good cause for termination...
Matrimonial Legal Malpractice
Posted on May 06, 2008Suri Katebi, Plaintiff-Appellant, v Paul Fink, et al., Defendants-Respondents. SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT 2008 NY Slip Op 4141 May 1, 2008, Decided May 1, 2008, Entered Clients are often asked at an allocution, settling a matrimonial action whether they are satisfied with their attorney’s work...
Here the Lawyers Get the Benefit of Client's Release in Legal Malpractice
Posted on May 05, 2008JOSEPH G. HUGAR AND LKC, LLC, PLAINTIFFS-APPELLANTS, v DAMON & MOREY LLP, CHRISTOPHER T. GREENE, ESQ., ANTHONY L. EUGENI, ESQ., AND ROBERT J. PORTIN, ESQ., DEFENDANTS-RESPONDENTS. 596 CA 07-02311 SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT 2008 NY Slip Op 4167; 2008 May 2, 2008, Decided May 2, 2008, Entered When are attorneys treated the same as their clients? Here is an example of attorneys getting the benefit of the client’s release...
Brocade, Backdating and Legal Malpractice
Posted on May 02, 2008Legal malpractice has lately been examining securities transactions, bankruptcies and other phenomina of the downward trend in the economy. Here, Law Com reports a new case against outside counsel for Brocade."Few plaintiffs have gone after companies' outside lawyers in backdating lawsuits...
Hearst v. Hearst and Legal Malpractice
Posted on May 02, 2008In the high-stakes Estates and Trust world of Suffolk County [think East Hampton, not Patchogue], this case was reported last week. Plaintiff John Randolph Hearst [of the publishing family] sued his attorney on the theory that he and his former wife "fraudulently deprived him of title and use of more than $ 20 million in real property...
Clifford Chance Out of Bankrutpcy Legal Malpractice Case
Posted on May 01, 2008The law firm Clifford Chance was the latest participant in a swelling bankruptcy legal malpractice series of cases. Anthony Lin of the NYLJ writes:"Citing 'Stoneridge,' Judge Releases Law Firm From Securities Suit A federal judge in Philadelphia has dropped Clifford Chance from a securities class action, citing the U...
Continuing Representation Avoids Dismissal in Legal Malpractice
Posted on May 01, 2008Frederick Rehberger, appellant, v Garguilo & Orzechowski, LLP, et al., respondents. (Index No. 30120/05) 2007-05158 SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT 2008 NY Slip Op 3187 April 8, 2008, Decided “In an action to recover damages for legal malpractice, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Kerins, J...
Minnesota, Kentucky, Legal Malpractice ?
Posted on April 29, 2008We can't read the case, and a subscription to the Minnesota lawyer site is required, but third-hand, here is an interesting take on a legal malpractice case from the Minnesota Lawyer Blog."Minnesota Lawyer has an interesting story this week about a local attorney who found himself being sued for malpractice in Kentucky by a woman who claimed that she was his client...
Deposing the Opposing Attorney on Statute of Limitations
Posted on April 28, 2008It is rare to depose opposing counsel. Here is an interesting case in which the question to be determined is whether plaintiff knew his union would not participate in a discrimination case, and if so, whether the statute of limitations had passed...
Are Experts Necessary in Legal Malpractice
Posted on April 25, 2008It's the very rare case in which an expert is not needed in a legal malpractice case. Here is a SDNY case in which the expert was necessary. How could this attorney not have used an expert on a motion for summary judgment?YAMIRA SANTIELI, Plaintiff, v...
Sidley Austin, KPMG and Legal Malpractice
Posted on April 25, 2008It appears certain that they gave bad tax shelter advice, but this plaintiff opted out of a successful class action only to see his own case dismissed,EDWARD H. ARNOLD, Plaintiff, -against- KPMG LLP, and SIDLEY AUSTIN BROWN & WOOD LLP, Defendants...
Another Example of the Collateral Estoppel Trap in Legal Malpractice
Posted on April 24, 2008In re D.A. ELIA CONSTRUCTION CORP., Plaintiff, v. DAMON & MOREY, LLP, Defendant. 07-CV-143A UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK 2008 U.S. Dist. LEXIS 25496 March 31, 2008, Decided March 31, 2008, Filed “While the matter [the bankruptcy matter] was on appeal to the Second Circuit, Elia filed a complaint against Damon & Morey on February 14, 2007 in New York State Supreme Court asserting [*5] various state law causes of action relating to the firm's legal representation of Elia during the Chapter 11 proceeding...
Surgeon v. Attorney in Legal Malpractice Case
Posted on April 24, 2008ANDREW ORDON, Plaintiff-Appellant, -v.- KAREN L. KARPIE, and MURPHY & KARPIE, LLC Defendants-Appellees. No. 06-3347-cv UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 2008 U.S. App. LEXIS 7626 April 10, 2008, Decided “Ordon retained Karpie to represent him in proceedings before the Connecticut Medical Examining Board ("CMEB") after a patient reported to the Connecticut Department of Public Health ("CDPH") an adverse result in a surgery performed by plaintiff...
Subrogation Rights in Legal Malpractice
Posted on April 23, 2008Insurers who pay insureds for medical costs, or for damages sometimes seek the right to share in the proceeds of the insured's cases. If an insured gets medical insurance coverage after an accident,] the insurance company would like to be reimbursed from the proceeds...
Liability to 3d Parties for Minnesota Legal Malpractice
Posted on April 23, 2008Hinshaw reports that the Minnesota Supreme Court has determined the rules for legal malpractice liability to third parties, in a business setting. In New York, liability is generaly limited to situations in which the attorney issued an opinion letter relied upon by non-clients...
The US House of Representatives and Legal Malpractice
Posted on April 22, 2008Some combinations are simply counter-intuitive...ice cream and pickles, waffles and fried chicken, the US House of Representatives and legal malpractice. Once explained, they are clear as a bell. The South Carolina Appellate Blog explains how the US legislative body got involved in this legal malpractice case:"In Spence v...
Howrey LLP, Texas Patents and Legal Malpractice
Posted on April 22, 2008Law Com reports that two former clients have sued Howrey LLP and its partner Michael S. Dowler over a failed deal to purchase a patent. While normally this would not be of interest in a legal malpractice setting, the allegation is that the defendant demanded an 'under the radar" deal for 505 of the net profits, and then "breached his fiduciary duty by `misrepresenting the value of the patent...
Medical Malpractice - Legal Malpractice Case
Posted on April 22, 2008The Daily News article relates the story of a penile implant patient whose surgery went wrong. He then went to a long island medical malpractice attorney who did not fil the case. Plaintiff's attorney says that after the statute passed, the attorney wrote a letter saying: "After due reflectino, we are going to decline to accept your case into our office...
Attorney Discipline, Suspension and Legal Malpractice
Posted on April 18, 2008One can read attorney discipline cases in the law journal every day. Often they involve miscommunication with clients, neglect of cases and missing money. This case is a standout, and must be read. To begin, the players are all world class: almost all the judges of the SDNY, a huge roster of local attorney players, the son of the US Attorney General, and big law firms...
Prudential, Leeds Morelli & Brown Legal Malpractice back in the News
Posted on April 17, 2008We reported on this situation more than a year ago. Leeds Morelli & Brown apparently cut its own deal not to sue Prudential again, in exchange for a hefty legal fee paid to it. One of its clients, Linda Guyden, is trying to set aside an arbitration award on the basis that her attorney was conflicted...
Bankruptcy Legal Malpractice in McDermott Case
Posted on April 17, 2008Bankruptcy legal malpractice is again in the news. As the economy cycles through bankruptcy issues, attorneys advising large corporations become targets for the trustees as well as the creditors. Latest in the news is the Catholic Medical Center and McDermott, Will & Emery...
Convoluted NJ Real Estate and Legal Malpractice Case
Posted on April 16, 2008This New Jersey real estate case makes little sense, unless you read it as envy transformed into litigation. Plaintiff-seller decides to sell 6 lots for $ 2,000,000. Everyone follows the contract of sale, which provided for interim payments, penalty payments, and no assignments...
NJ Bankruptcy Legal Malpractice Case
Posted on April 16, 2008This case from New Jersey illustrates the difficult question of privity, which is another way to say, does plaintiff have a relationship with the attorney such that he may sue?In SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISIONCHARLES W. GEYER, on behalf of ONE WASHINGTON PARK URBAN RENEWAL ASSOCIATES (OWPURA), v...
NJ Legal Malpractice Case Fails
Posted on April 16, 2008There are red flags all over this case. Ex-sheriff was jailed for corruption, sued the government attorney from his administration and did not present an expert. " A judge in Newark yesterday threw out a legal malpractice suit brought by Thomas D'Alessio, former Essex County sheriff and county executive, against his administration's top lawyer...
Legal Malpractice Case Continues Against Paul Hastings
Posted on April 15, 2008From today's NYLJ: "A New York judge has allowed a legal malpractice suit alleging faulty due diligence work by Paul, Hastings, Janofksy & Walker to proceed. Investor Ronald Katz hired the law firm to represent him in connection with a $3 million investment in a company called Humitech...
Cases This Month in Legal Malpractice
Posted on April 15, 2008Jusuf Becovic, et al., Plaintiffs-Respondents-Appellants, v Poisson & Hackett, et al., Defendants-Appellants-Respondents. 3142, 118056/04 SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT 2008 NY Slip Op 2644; 2008 N.Y. App. Div. LEXIS 2594 March 20, 2008, Decided March 20, 2008, Entered Plaintiffs were physically injured, and the placement and maintenance of a garage sign was an important element of the personal injury case...
More Cases this Week in Legal Malpractice
Posted on April 14, 2008John Napolitano, appellant, v Markotsis & Lieberman, et al., respondents. (Index No. 3514/05) 2007-04674 SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT 2008 NY Slip Op 2980; 2008 N.Y. App. Div. LEXIS 2951 Plaintiff loses summary judgment motion for a case in which defendant represented him at trial, ultimately losing plaintiff’s case on the defense of unclean hands...
Attorney Fee Disputes and Rule 1215
Posted on April 10, 200822 NYCRR 1215 is a section of the law that governs attorney fees and engagement letters or retainer agreements. Until recently, courts have had differeing interpretations of the penalty when an attorney seeks fees but has no retainer agreement or engagement letter...
Celebrity Legal Malpractice Case
Posted on April 09, 2008Here, from Anthony Lin of the NYLJ is a story of Donald Trump suing Morrison Cohen for legal malpractice. Admirably, the story does not use the tag line, "you're fired" anywhere. Story: Morrison Cohen represents Trump and a country club in a construction dispute and wins $ 2 million + along with attorney fees...
$ 30 Million Bankruptcy Legal Malpractice Cases
Posted on April 08, 2008Continuing a trend in bankruptcy legal malpractice filings, here is the story, from NY Lawyer, of Pillsbury Winthrop Shaw Pittman and Levene, Neale, Bender, Rankin & Brill all being asked to disgorge fees and expenses.in the amounts of $4...
What Powers does the Bankruptcy Trustee have in Legal Malpractice?
Posted on April 07, 2008In this Federal Case, Cobalt Multifamily Investors I, LLC v. Shapiro, 06 Civ. 6468, Decided March 28, 2008 ,District Judge Kimba M. Wood U.S. DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK The Court ultimately determined that under the Wagoner rule trustee lacks standing, and that the bankruptcy trustee's powers are limited...
Equitable Subrogation and Legal Malpractice
Posted on March 28, 2008In this Fourth Department case Kumar v, American Transit Co, the Appellate Division has reversed and sent a case of legal malpractice back for trial. It is an interesting application of equitable subrogation. Plaintiff is an auto insurer who was involved in bad faith litigation...
Legal Malpractice and Estate Executors
Posted on March 27, 2008Surcharged as an executor, this attorney has an ongoing legal malpractice case against several sets of his own attorneys. In Alaimo v. Mongelli, we see several varieties of legal malpractice allegations. One of them is in contract for failure to undertake an appeal, which was paid for, and one is for straight negligence...
Was there Legal Malpractice in the Bear Stearns Takeover?
Posted on March 27, 2008This report from the Wall Street Journal Law Blog suggests that JP Morgan may have had to raise its buying price from $ 2 to $10 because of legal malpractice. What was the legal malpractice? A sentence inadvertently left in the agreement, which required JP Morgan to guarantee certain trades...
A Long List of Issues Leads to Trial in NJ Legal Malpractice
Posted on March 26, 2008Clients often come to speak with a legal malpractice attorney, and concentrate on the mistakes made by their attorney. While there can be many mistakes, not all of them lead to a successful case. Here is an example of many mistakes in a NJ case in which, at the end, there may be no provable damages...
Several Appeals Later, Legal Malpractice Case Dismissed in NJ
Posted on March 26, 2008This legal malpractice case from New Jersey illustrates an interesting point. DONALD ERICKSON, Plaintiff-Appellant, v. JEFFREY S. LEONARD, ESQ., and HERSH, RAMSEY AND BERMAN, P.C., Defendants-Respondents. Plaintiff's attorney seems to have narrowed the issues after remand from an appeal, and narrowed them so much, that he lost a second motion for summary judgment...
Legal Malpractice in the Failure to Do Discovery?
Posted on March 25, 2008Plaintiff, a kid on in-line skates, runs into debris at a construction site. He hires defendant attorneys to sue the construction defendants and the land owner for debris on a public sidewalk. First he loses against one defendant, and then, by res judicata against the other, Why did he lose? If, on the one hand it was because the debris was open and obvious, then it was not the attorney's fault...
A Primer in Nebraska Legal Malpractice Litigation
Posted on March 25, 2008This case Wolski v. Wandel is a well written, well thought out discussion of summary judgment motions in legal malpractice. Although the primary subject is the use of expert testimony in opposing a motion for summary judgment, this decision sets forth many aspects of Nebraska Legal Malpractice law.
What if they gave a Legal Malpractice Trial and the Jurors Didn't Care?
Posted on March 24, 2008The Madison Record regularly reports on legal malpractice cases within its geographical confines. Here is a long article on a current trial. Of interest? The juror's attitude."Attorneys in the Thompson Coburn legal malpractice trial care deeply about constructive trust and fiduciary duty, but the jurors don't seem to care at all...
Median Legal Malpractice Verdicts in the Mid-Atlantic States
Posted on March 24, 2008Here is a short report on legal malpractice verdicts in Maryland, Virginia and DC. They were:"Metro Verdicts Monthly recently provided data on legal malpractice settlements and verdicts in Virginia, Maryland and Washington, D.C. The median legal malpractice settlement/verdict in Washington D...
Morrison Cohen Legal Malpractice Case Continues
Posted on March 21, 2008The $15 Million case by Mercantile Capital Partners Fund against Morrison Cohen has survived a motion to dismiss. The decision by Justice Ling-Cohan determines that the complaint is sufficient for now. "The gravamen of this legal malpractice claim is that defendant's alleged failure to perfect plaintiff's security interest and subsequent failure of the credit bid deal caused plaintiff damages...
Legal Malpractice Venue in Missouri
Posted on March 21, 2008In New York for the most part, venue is found in the county where plaintiff or defendant resides or has its principal place of business. Here is an interesting case from Missouri, in which plaintiff successfully started and kept the case in the county [or district] where the wrong took place...
NJ Legal Malpractice Case against Drinker Biddel Reinstated
Posted on March 21, 2008NY Lawyer reports that a legal malpractice case against Drinker Biddel, dismissed on summary judgment, has been reversed and remanded for trial. In a double whammy, DB's cause of action for legal fees has also been reversed."A New Jersey appeals court on Tuesday reinstated a claim that 630-lawyer Drinker Biddle committed malpractice that forced a litigation client to make a bad settlement and lose hundreds of thousands of dollars...
Statute of Limitations in Matrimonial Legal Malpractice
Posted on March 20, 2008In Kvetnaya v. Tylo the Appellate Division, 2d Department reiterated an oft discussed rule, determining the date when a matrimonial legal malpractice statute of limitations starts tp run. The base rule is that the statute of limitations starts to run from the date of the mistake, unless there is continuous representation tolling...
Optimism and Reality in Legal Malpractice
Posted on March 20, 2008Legal malpractice carriers are always looking for a way out. Coverage exclusions, notice provisions, each week out a very significant number of potential claims. Notice provisions are found both in the initial [usually yearly] applications, as well as the obligation to inform the carrier as soon as a claim is even a potential...
It's Not Legal Malpractice, but It's a Big Number
Posted on March 19, 2008NY Lawyer, via Legal Inteligencer reports on this big number legal fee disgorgement case in Philadelphia. "A Philadelphia judge has ruled that a Montgomery County law firm should pay $5.2 million, including $1 million in punitive damages, for attorney fees the judge said the firm unlawfully accumulated during its collection of delinquent municipal and school district real estate taxes...
Cruising for a Bruising in Cruise Line Legal Malpractice
Posted on March 19, 2008This story fromDaily Business Review about cruise line legal malpractice is a twist on the usual. Generally the story is about a lost plaintiff's case based on jurisdiction, or the lack thereof. Here the story is considerably more inflammatory, Plaintiff's lawyer Jay Wingate has been in the news lately, with tales of chasing cases, payoffs, and the like, Now, it is reported that: "Royal Caribbean Cruise Lines is suing attorney Jay Wingate to recover about $1 million in attorney fees, alleging his firm used misrepresentation to settle 23 worker-injury cases with the cruise line...
Will Aretha Franklyn Lose her Mansion over Legal Malpractice?
Posted on March 18, 2008New York Lawyer reports that Aretha Franklyn, the Queen of Soul is in danger of losing her mansion over a missed tax payment, which was supposed to be handled by her attorney. Here is the story from the AP:"Aretha Franklin could lose her home to tax collectors...
An Example of "But For" in Legal Malpractice
Posted on March 18, 2008Reported today in the NYLJ, the case of Sapir v. Resnick, Supreme Court, Nassau County , Decided February 26, 2008 illustrates an important point. The attorney's mistakes are but the starting point in any legal malpractice case. Vitality of the underlying case is all important too...
Blackwater. Iraq and Legal Malpractice
Posted on March 17, 2008Blackwater's Attorney Wiley Rein, is involved in litigation over the deaths of Blackwater employees in Iraq. Tied up in this case are the questions of the military, contractors to the military, and the rules which apply to them. Do the rules changes in a war zone, do active military operations in the immediate area change the rules, and are employees of a contractor who are not military personnel within the Federal Officer removal statute...
Washington DC Big Law Legal Malpractice
Posted on March 17, 2008From New York Lawyer: "The $5 million malpractice case against star litigator Michele Roberts of Akin Gump Strauss Hauer & Feld will proceed to trial in D.C. Superior Court. In a hearing that lasted more than three hours on March 7, Judge Jennifer Anderson weighed motions to dismiss, as well as a host of other matters...
When is a Claim Notice due to the Malpractice Carrier?
Posted on March 17, 2008Legal malpractice insurance policies require, in general, that the insured notify the carrier of all incidents and claims, on penalty of forfeiting coverage. Here is an interesting article from Wiley Rein on this issue: "The United States District Court for the Middle District of Florida, applying Florida law, has held that a letter that gave notice of a potential lawsuit and requested information but that did not demand money or advise the recipient to put his insurance carrier on notice did not constitute a "Claim" under a medical malpractice professional liability policy...
"Relation Back" and Pleading Legal Malpractice
Posted on March 14, 2008Pleading in legal malpractice can be tricky. Here is a recent New York case Shefa Unlimited, Inc., et al. respondents, v Amsterdam & Lewinter, 2006-10191 SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT 2008 NY Slip Op 1937; March 4, 2008, Decided, which reports the unsuccessful attempt to add new allegations against a law firm in a "relation back" setting...
Ineffective Assistance may not be Legal Malpractice
Posted on March 13, 2008Plaintiff in Gersten v. Lemke, 110651/07 ,Decided: February 14, 2008 ,Justice Marylin G. Diamond ,NEW YORK COUNTY Supreme Court was indicted. He was convicted. He successfully had the indictment dismissed, after demonstrating ineffective assistance of counsel...
Narrow Exception for Privity in Legal Malpractice
Posted on March 12, 2008The general rule is that one may not sue an attorney, unless that attorney was working for you. Privity is the concept that the attorney was hired by you, and worked for you. You may not sue the other party's attorney, no matter how badly you were treated in court by that attorney...
Conditional Tenders and Strategic Decisions
Posted on March 11, 2008In this case, Tanger v Ferrer ,2008 NY Slip Op 01866 ,Decided on March 4, 2008 ,Appellate Division, First Department . the following mistakes led Supreme Court to grant summary judgment to plaintiff: "This Court found that the tenders were conditional and therefore did not act to stop the accrual of interest on the landlord's claim (Solow Mgt...
How to Lose a Summary Judgment Motion in Legal Malpractice
Posted on March 11, 2008The case of Orchard Motorcycle Distributors v. Morrison Cohen shows just how easy it is to lose a motion for summary judgment, and not on the merits, either.1. Plaintiff did not submit an expert's affidavit in opposition to an expert's affidavit...
Legal Malpractice Attorney Called to Testify in Legal Malpractice Case
Posted on March 10, 2008The Magna v. Coburn case in which the bank is suing attorney Coburn over "steering" to a settlement structuring company which eventually swindled clients, took an unusual turn. Lead attorney Rex Carr was called away from counsel table to the witness stand...
Plaintiff's Attorney Loses Three Ways after Settlement of Legal Malpractice Case
Posted on March 10, 2008The problem of the uninsured or underinsured defendanat-attorney is illustrated in this West Virginia Case., Horkulic v. Galloway. Plaintiff settled th case for the full policy limit of TIG, and in a deal with the defendant attorney, took his putative bad faith claim, and agreed not to seek the attorney's personal assets...
SLAPP Cases and Legal Malpractice In California
Posted on March 07, 2008Familiar with SLAPP suits? Unfair Competition Law? Probably not, unless you are in California. Here is a blog entry from Kimberly Kralowec on a legal malpracice case in California which illustrates a California litigation tactic...
When is an Attorney Responsible for his Client's Behavior
Posted on March 06, 2008Depositions in New York used to be a variant of the Wild West rodeo. Bucking broncos, trying to stay up on the horse, pick your metaphor. New attorneys soon learned the usual tricks, "I'll take that under advisement", "I direct the witness not to answer" and all that...
Specialization, Legal Malpractice and Taking a Case you Don't Understand
Posted on March 06, 2008Attorneys are generalists, no attorneys are specialists, no they can handle anything? The profession is of two minds on this question. Any attorney, duly admitted, etc. may offer opinion evidence on the behavior of another attorney, and any attorney might simply step up to the counsel table and give an appearance...
Mother and Son at War, Legal Malpractice and Settlements in NJ
Posted on March 05, 2008NJ has some traps for the unwary in legal malpractice, and this case showcases several of them. In CELESTE GUIA PINTO, v.MCGOVERN, PROVOST & COLRICK, SUPERIOR COURT OF NEW JERSEY ,APPELLATE DIVISION DOCKET NO. A-3186-06T53186-06T5 we see the Puder rule on settlements, the rule on certificates of merit, and an application of the Sheridan v...
Legal Malpractice and BCL 1505
Posted on March 05, 2008Here is a legal malpracice statute of limitationscase in which the Appellate Division , First Department give a routine analysis of a legal malpracice case, dismissed on a CPLR 3211 motion in Supreme Court, and reversed in the Appellate Division...
No Expert, No Relationship, No Case in Legal Malpractice
Posted on March 04, 2008Here is a SDNY case in which plaintiffs sued for legal malpractice, and lost the bench trial and the appeal. The decision does not spell out what was ambiguous about the retainer agreement, but both the bench and the appeal court determined that this "engagement" letter was insufficient to spell out an attorney-client relationship...
Blackwater Law Suit and Wiley Reins
Posted on March 03, 2008BLT law blog [look it up for yourself] reports that Blackwater [the military and security subcontractor] is suing Zuckerman Spaeder in legal malpractice. Here it is from the BLT:"Wiley Rein has hired attorneys at Zuckerman Spaeder to represent the firm in the $30 million Blackwater suit...
They All Come Out to Hear a Legal Malpractice Witness
Posted on February 29, 2008We write in a large legal community, and this story is from a smaller one. Nevertheless, the interior quote caught our attention. This trial Magna Bank v. Coburn has been going on in Madison County, and has been widely reported. Here is yet another story, but with a twist...
"Firestorn" in Legal Malpractice
Posted on February 29, 2008Here, in a story from Atlanta from the Augusta Chronicle is the story of an Atlanta law firm that has a multiple number of legal malpractice cases facing it. One in particular, Jennifer v. Fleming the jury will be permitted to hear about an additional 22 cases...
"Firestorm" in Legal Malpractice
Posted on February 29, 2008Here, in a story from Atlanta from the Augusta Chronicle is the story of an Atlanta law firm that has a multiple number of legal malpractice cases facing it. One in particular, Jennifer v. Fleming the jury will be permitted to hear about an additional 22 cases...
Cases this Week in Legal Malpractice
Posted on February 28, 2008Here are some NY state cases this week in Legal Malpractice:1.Max Markus Katz, et al., appellants, v Herzfeld & Rubin, P.C., respondent. APPELLATE DIVISION, SECOND DEPARTMENT 2008 NY Slip Op 1507 February 19, 2008This case demonstrates two potent defenses: "we were fired before the end of the case, and the new attorneys could have fixed the problem...
Sometimes its Too Early for Legal Malpractice
Posted on February 28, 2008Here is an unusual "too early" case in legal malpractice: Analisa Salon Ltd. v. Elide Properties LLC, 7582/05 , January 28, 2008 "Essential to a legal malpractice claim is proof that the alleged acts of an attorney proximately caused compensable damages...
NJ Legal Malpractice Case Dismissed after Losing an Auto Case
Posted on February 27, 2008Plaintiff suffered an auto accident, and went to trial. Although the jury determined that the other driver was 100% at fault, it granted no damages to plaintiff. She sued her attorney , alleging that settlement offers were not comunicated to her...
Indiana Will Drafting Legal Malpractice Case
Posted on February 27, 2008From the Indiana Law Blog comes this will drafting legal malpractice case, in which the drafting of a will caused adverse tax consequences. Plaintiffs sued, and attorney's successfully moved for summary judgment, only to lose at the appellate level:"The trial court denied the Lawyers’ motion as to one issue, but granted it as to the other...
West Virginia Legal Malpractice and the Unfair Claims Settlement Act
Posted on February 27, 2008Horulic v. Galloway started out as a garden or varietal auto accident case. It blossumed into a unique legal malpractice - bad faith- Unfair Claims Settlement Act case in which at least one significant lesson is learned. $ 500,000 is not sufficient coverage for attorneys who litigate personal injury matters...
Patent Legal Malpractice Cases and Federal Question Jurisdiction
Posted on February 26, 2008Air Measurement v. Akin Gump is another reminder that there are alternative jurisdictional bases in Federal district court aside from diversity jurisdictino. Here, a legal malpractice case over representation in a patent law case allowed the matter to be brought in Federal District Court...
Legal Malpractice Suit after a Release
Posted on February 26, 2008Plaintiff wanted to sue his opponent's attorneys. While the ability to sue your opponent's attorney is very restricted, [see: lack of privity}, in certain circumstances it is possible. This case: Blum v Perlstein 2008 NY Slip Op 00439 Decided on January 22, 2008 Appellate Division, Second Department appears to stand for the proposition that plaintiff had no legal malpractice case against the defendants, who were not his attorneys...
Translation Legal Malpractice
Posted on February 25, 2008Closely related to the prior article on immigration legal malpractice is this story of legal malpractice in translation. While the attorney was held responsible only for failing to follow a specific court order, his mistake arises from failing to have a translator there...
Immigration Legal Malpractice
Posted on February 25, 2008Here from the Illinois Legal Malpractice Blog discussing an ABA Journal article about a 2d Circuit Case. Immigration legal malpractice is a frequent subject, with inherent problems for the plaintiff. First, the client may not be in the country, and discovery/depositions will be difficult; second, proving the value of damages can be difficult...
Is Legal Malpractice Litigation simply about the Money?
Posted on February 25, 2008Two starkly differing views come to light in this twisted matrimonial/legalmalpractice case. It all started with a matrimonial and custody case. From the NYLJ:"The underlying case, a contentious divorce and custody proceeding between Ms...
The Electronic and Digital Age and Legal Malpractice
Posted on February 22, 2008No one, and by that we mean the New York Attorney Malpractice Blog is accusing anyone of malpractice regarding this story. Sheila Birnbaum is a demi-god in litigation circles. However, e-mails can trip up anyone. Will a similar tale end in legal malpractice? Law blog reports:"Yesterday, Skadden Arps products-liability superstar Sheila Birnbaum mistakenly sent to reporters an email that was intended to be directed “internally...
Legal Malpractice and Personal Injury Case Dismissed
Posted on February 22, 2008Here is a textbook example of how courts view legal malpractice cases. Their view does not necessarily comport with the reality of litigation. In Katz v. Herzfeld & Rubin the court holds:"In support of the motion to dismiss, the defendant submitted evidence establishing that the acts of malpractice alleged in the complaint, including the defendant's refusal to pursue a highly questionable claim for exaggerated lost earnings damages based on the injured plaintiff's life expectancy and its purported delay in retaining an economist to evaluate the lost earnings claim, did not cause any alleged reduction in the amount of the monetary settlement reached in the underlying personal injury action...
Holding Escrow and Legal Malpractice
Posted on February 21, 2008In this Case Egnotovich v. Katten Muchin Zavis & Roseman LLP, 604101/06 , Decided January 23, 2008 ,Justice Bernard J. Fried NEW YORK COUNTY ,Supreme Court Plaintiffs joined a vacation club in which they each deposited $ 400,000, and the group was to purchase or lease apartments or houses in prime vacatiion spots...
Legal Malpractice Cases in the Second Circuit Courts
Posted on February 20, 2008CELEBRITY CRUISES INC., and FANTASIA CRUISING INC., Plaintiffs, - against - ESSEF CORP., PAC-FAB, INC., and STRUCTURAL EUROPE N.V. (f/n/a SFC), Defendants. 96 Civ. 3135 (JCF) UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK 2008 U...
Cases This Week in Legal Malpractice
Posted on February 19, 2008Fred W. Nelson, etc., respondent, v Stanley Kalathara, defendant, Claude Simpson, appellant. (Index No. 3167/07) 2006-09551 SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT 2008 NY Slip Op 1313 February 13, 2008, Decided Here, plaintiff is the guardian of an incapacitated seller of real property, and defendants were the attorneys for purchaser...
Pennsylvania Legal Malpractice Statute of Limitations
Posted on February 19, 2008Hinshaw reports a fairly complicated commercial liquidated damages case arising from a bank loan to individuals which led to a default, which led to a confession of judgment, which led to a settlement, with inadequate documentation of the settlement...
Clients Lose Settlement and Legal Malpractice Case
Posted on February 19, 2008Clients claim that attorney forged their names on settlement documents, then stole money. They sue attorney, get judgment, and then lost any ability to collect, when carrier successfully disclaims and wins a collection case brought by the cleints against the carrier...
Not All Trials go to a Jury, Even in Legal Malpractice
Posted on February 19, 2008One of the more ironic but interesting aspects of legal malpractice, like quantum mechanics, is that the very act of measurement [trial] can cause the observed object to change. Similarly, in the prosecution of a legal malpractice case, there can be legal malpractice ...
Duane Morris Legal Malpractice Case Decided
Posted on February 19, 2008A commonly quoted statistic is that 95% of all cases are resolved prior to trial; they are resolved through motions to dismiss, motions for summary judgment and settlements. The few cases that go on to trial generally, they calculate, go 50/50...
Federal Question Jurisdiction in Legal Malpractice
Posted on February 19, 2008Legal malpractice is a wholly state cause of action, and might be brought in Federal District Court only if there is a basis for jurisdiction. Diversity jurisdiction is the one most quickly thought of, but in certain circumstances federal question jurisdiction may also apply...
Court Will not Allow Attorney to Quit
Posted on February 19, 2008In Scher v. Mishkit [NYLJ exerpt], Supreme Court, Suffolk County refused to allow this attorney to wifhdraw pursuant to CPLR 321. This situation is more common than one might guess, especially in medical malpractice cases. The case is brought, and prosecuted, with depositions, and medical record exchanges, and then placed on the calendar, without an expert in place...
Failure to Pay Legal Malpractice Judgment Leads to Attorney Suspension
Posted on February 19, 2008It is an ethical violation of 22 NYCRR 603.4[e][1][iv] willfully to fail to satisfy a judgment arising out of one's professional activities. For the most part, these judgments arise from legal malpractice. Here an attorney is suspended because of an unsatisfied judgment:"Respondent's failure to cooperate with the Committee's investigation (22 NYCRR 603...
Judicial Hellhole and Legal Malpractice
Posted on February 19, 2008So far the central question in this legal malpractice case is whether it is taking place in a judicial hellhole, and incidently, who gets to make that decision. This is a legal malpractice case taking place in Madison County, Illinois. Here is the story from the Madison St...
Indiana Excess Insurer Malpractice Case
Posted on February 19, 2008Indiana Legal Blog reports on the Transcontinental legal malpractice case. We reported on it earlier, but there seems to be a new twist: "On appeal, the Indiana Court of Appeals did not accept the excess insurer’s argument that they should be allowed to bring a legal malpractice claim against the client’s attorneys under the doctrine of equitable subrogation...
Arbitration in Legal Malpractice
Posted on February 19, 2008Here is a commentary from Larry Upshaw on the pro/con arguments for a law firm putting an arbitration clause in the retainer agreement. From plaintiff's prospective, it can be a costly problem. Take a commercial legal malpractice in which there are potential $ 1 million damages...
Motions to Dismiss on "Documentary Grounds" and Legal Malpractice
Posted on February 19, 2008Here is a case from Richmond County with an interesting twist. Facts: Mother gets into money trouble and faces foreclosure. Daughter helps out and negotiates a mortgage to pay off the earlier debts and prevent foreclosure. An attorney is "assigned" by the mortage company for the mother...
NY Cases This Week in Legal Malpracice
Posted on February 19, 2008STEPHEN F. BRUMMER, PLAINTIFF, v TOWN OF TONAWANDA, ET AL., DEFENDANTS. CHRISTOPHER A. SPENCE, P.C., APPELLANT; THE BARNES FIRM, P.C., SUCCESSOR TO CELLINO & BARNES, RESPONDENT. SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT 2008 NY Slip Op 871 February 1, 2008, Decided Attorney 1 represents a construction accident plaintiff up to the point of a motion for summary judgment against the employer on Labor Law section 240...
Duane Morris $ 1.6 Million Legal Malpractice Case
Posted on February 19, 2008Law.Com reports this Philadelphia case. "In opening statements on Tuesday in Adlerstein v. Duane Morris, physicist Joseph K. Adlerstein's attorney, Clifford E. Haines, said Duane Morris was responsible for his client only receiving $200,000 of a $1...
No Harm, No Foul in Legal Malpractice
Posted on February 19, 2008Thoroughly investigate any human endeavor, and error can be found. Legal malpractice law holds that one must demonstrate that "but for" the attorney's error, there would have been a better or different result. This case, Cohen v Weitzner ,2008 NY Slip Op 00618 ,Decided on January 31, 2008 ...
Pennsylvania Legal Malpractice Statute of Limitations
Posted on February 18, 2008Hinshaw reports a fairly complicated commercial liquidated damages case arising from a bank loan to individuals which led to a default, which led to a confession of judgment, which led to a settlement, with inadequate documentation of the settlement...
Clients Lose Settlement and Legal Malpractice Case
Posted on February 18, 2008Clients claim that attorney forged their names on settlement documents, then stole money. They sue attorney, get judgment, and then lost any ability to collect, when carrier successfully disclaims and wins a collection case brought by the cleints against the carrier...
Not All Trials go to a Jury, Even in Legal Malpractice
Posted on February 14, 2008One of the more ironic but interesting aspects of legal malpractice, like quantum mechanics, is that the very act of measurement [trial] can cause the observed object to change. Similarly, in the prosecution of a legal malpractice case, there can be legal malpractice ...
Duane Morris Legal Malpractice Case Decided
Posted on February 14, 2008A commonly quoted statistic is that 95% of all cases are resolved prior to trial; they are resolved through motions to dismiss, motions for summary judgment and settlements. The few cases that go on to trial generally, they calculate, go 50/50...
Federal Question Jurisdiction in Legal Malpractice
Posted on February 13, 2008Legal malpractice is a wholly state cause of action, and might be brought in Federal District Court only if there is a basis for jurisdiction. Diversity jurisdiction is the one most quickly thought of, but in certain circumstances federal question jurisdiction may also apply...
Court Will not Allow Attorney to Quit
Posted on February 12, 2008In Scher v. Mishkit [NYLJ exerpt], Supreme Court, Suffolk County refused to allow this attorney to wifhdraw pursuant to CPLR 321. This situation is more common than one might guess, especially in medical malpractice cases. The case is brought, and prosecuted, with depositions, and medical record exchanges, and then placed on the calendar, without an expert in place...
Failure to Pay Legal Malpractice Judgment Leads to Attorney Suspension
Posted on February 12, 2008It is an ethical violation of 22 NYCRR 603.4[e][1][iv] willfully to fail to satisfy a judgment arising out of one's professional activities. For the most part, these judgments arise from legal malpractice. Here an attorney is suspended because of an unsatisfied judgment:"Respondent's failure to cooperate with the Committee's investigation (22 NYCRR 603...
Judicial Hellhole and Legal Malpractice
Posted on February 11, 2008So far the central question in this legal malpractice case is whether it is taking place in a judicial hellhole, and incidently, who gets to make that decision. This is a legal malpractice case taking place in Madison County, Illinois. Here is the story from the Madison St...
Indiana Excess Insurer Malpractice Case
Posted on February 11, 2008Indiana Legal Blog reports on the Transcontinental legal malpractice case. We reported on it earlier, but there seems to be a new twist: "On appeal, the Indiana Court of Appeals did not accept the excess insurer’s argument that they should be allowed to bring a legal malpractice claim against the client’s attorneys under the doctrine of equitable subrogation...
Arbitration in Legal Malpractice
Posted on February 08, 2008Here is a commentary from Larry Upshaw on the pro/con arguments for a law firm putting an arbitration clause in the retainer agreement. From plaintiff's prospective, it can be a costly problem. Take a commercial legal malpractice in which there are potential $ 1 million damages...
Motions to Dismiss on "Documentary Grounds" and Legal Malpractice
Posted on February 07, 2008Here is a case from Richmond County with an interesting twist. Facts: Mother gets into money trouble and faces foreclosure. Daughter helps out and negotiates a mortgage to pay off the earlier debts and prevent foreclosure. An attorney is "assigned" by the mortage company for the mother...
NY Cases This Week in Legal Malpracice
Posted on February 07, 2008STEPHEN F. BRUMMER, PLAINTIFF, v TOWN OF TONAWANDA, ET AL., DEFENDANTS. CHRISTOPHER A. SPENCE, P.C., APPELLANT; THE BARNES FIRM, P.C., SUCCESSOR TO CELLINO & BARNES, RESPONDENT. SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT 2008 NY Slip Op 871 February 1, 2008, Decided Attorney 1 represents a construction accident plaintiff up to the point of a motion for summary judgment against the employer on Labor Law section 240...
Duane Morris $ 1.6 Million Legal Malpractice Case
Posted on February 06, 2008Law.Com reports this Philadelphia case. "In opening statements on Tuesday in Adlerstein v. Duane Morris, physicist Joseph K. Adlerstein's attorney, Clifford E. Haines, said Duane Morris was responsible for his client only receiving $200,000 of a $1...
No Harm, No Foul in Legal Malpractice
Posted on February 05, 2008Thoroughly investigate any human endeavor, and error can be found. Legal malpractice law holds that one must demonstrate that "but for" the attorney's error, there would have been a better or different result. This case, Cohen v Weitzner ,2008 NY Slip Op 00618 ,Decided on January 31, 2008 ...
Yet Another Trap in Municipal Injury Suits
Posted on February 04, 2008When does a municipality have knowledge of "the essential facts" upon which a claim is made, and when does a municipality have "actual knowledge"? This seemingly small distinction has grave consequences for a plaintiff, and incidentally plaintiff's attorney, Matter of Felice v Eastport/South Manor Cent...
Doctor Sues his Attorneys when they Settle a Case Without Telling Him
Posted on February 04, 2008Here is a case from Louisiana found by the Law Profession Blog.. While it has very unfamiliar language in it, the situation is very familiar. Doctor is sued for medical malpractice. He does not have a consent policy. Carrier settles without telling him some important things, such as, they waived a jury trial for him...
Philadelphia Legal Malpractice Case Goes to Verdict
Posted on February 02, 2008Yesterday we reported that the Purlite legal malpractice case was going to the jury; it appeared from reports that a question of the statute of limitations would be the most important issue. Now, breaking news is that the trial ends with a defense verdict, but on the merits and not on the question of the statute of limitations...
Bankruptcy Court is the Hot New Venue for Legal Malpractice
Posted on February 01, 2008It may be a sign of the new economic times, or it may simply be a new trend, but legal malpractice cases are increasing in the bankruptcy setting. NY Lawyer reports a fraudulent concealment - legal malpractice case by the trustee against an attorney and firm today...
Purolite Legal Malpractice Case and Statute of Limitations
Posted on February 01, 2008Purolite hired defendant law firm Morgan Lewis & Bockius for advice on whether they could sell products to Cuba. The law firm gave advice, Purolite came under criminal investigation, and a law suit was born. NY Lawyer reports"Both sides said Morgan Lewis' original advice in 1993 was for the company to stop all sales to Cuba and a memorandum was sent to all employees to that effect...
Singer v. Attorney Retainer Dispute Continues
Posted on January 31, 2008This case has gone from US District Court to the US Court of Appeals for the Second Circuit, to the NY Court of Appeals, and back to District Court. It's a case in which the question now is whether the retainer agreement is in effect, whether misconduct by the attorney vitiates the agreement, and to whom a big fee goes...
Rule 1215 and Attorney Fees
Posted on January 31, 200822 NYCRR 1215 is a section of the law that governs attorney fees and engagement letters or retainer agreements. Until recently, courts have had differeing interpretations of the penalty when an attorney seeks fees but has no retainer agreement or engagement letter...
The Brando Family, Death and Legal Malpractice
Posted on January 30, 2008Christian, son of Marlon Brando died last week, and the AP his former wife has now started a legal malpractice action concerning his will and codicils. "But his family requested the autopsy on Monday "based on his past drug history," Los Angeles County coroner's Lt Fred Corral said...
Legal Malpractice in its many Guises
Posted on January 30, 2008Small or Multi-billion dollar case, legal malpractice cases all rest upon the same three bases: deviation from accepted practice, proximate cause and damage. As an example, here is a smallish case from the Madison Record:"A legal malpractice claim filed by Cydney Hollaway against Fairview Heights attorney Thomas C...
Bankruptcy and Legal Malpractice
Posted on January 29, 2008From an unpublished Illinois case, discussed by the Illinois Legal Malpractice Blog, we are reminded of the fact that a bankruptcy filing will generally cut off plaintiff's right to bring any law suit, including the legal malpractice case...
An Illustrative Case in Legal Malpractice
Posted on January 29, 2008On some ocassions, the dissection of a case yields interesting insights. Here is a Second Department Case: Petersen v Lysaght, Lysaght & Kramer, P.C. , 2008 NY Slip Op 00472 Decided on January 22, 2008 ,Appellate Division, Second Department which illustrates several points:1...
Delaware and Personal Jurisdiction over Attorneys
Posted on January 29, 2008We've reported on the widespread influence of Deleware corporate law. Many attorneys seemingly practice Delaware law without setting a foot there, without holding themselves out as Delaware attorneys. This happens when they advise corporate clients on how Delaware would act...
Hospital, Its Attorney, Its Insurer and Conflict of Interest in Legal Malpractice
Posted on January 28, 2008Its Idaho, and its Winter. However, this is not a weather blog. Here is a case illustrating the age old conflict of interest between the insured and its insurer. Here, the insured says that defendant attorney's mission was to protect the insurance company, not the insured...
Use of Attorney's Statements in a Subsequent Legal Malpractice
Posted on January 28, 2008Here is an Idaho Decision from the Supreme Court of Idaho, which discusses how the statements of an attorney, representing his client in a court proceeding. may be used against him later, as "admissions,""The issue is, whether an attorney's statements in the course of representation fo a client may be used against that attorney in a subsequent legal malpractice case...
Even the Biggest Players get Sued in Legal Malpractice
Posted on January 25, 2008Here is a New York Law Journal report of a legal malpractice case involving the White House, sitting judges, and other big players."Blackwater Security filed a $30 million malpractice suit against Washington, D.C., law firm Wiley Rein on Wednesday, alleging the firm made costly missteps in a wrongful death case brought on behalf of four former Blackwater employees who were killed in Iraq in 2004...
Litigating against States
Posted on January 25, 2008Many legal malpractice cases arise from failures to file a notice of claim against a municipality or against the state. The case law is rife with General Municipal Law mistakes, as well as Court of Claims Act errors. This case, which involves not New York but Louisiana, shocks the conscience...
More on Electronic Discovery and Legal Malpractice
Posted on January 25, 2008Qualcom v. Boradcom Corp. is an important case. Duane Morris reports that it will set the standard for all electronic discovery in litigation. Once the standard is set, attorneys will be expected to heed and obey."The district court was particularly concerned with upholding the good faith standard necessitated by the discovery system and emphasized that for the system to work in a time when documents are stored electronically, "attorneys and clients must work together to ensure that both understand how and where electronic documents, records and emails are maintained and to determine how best to locate, review, and produce responsive documents...
Electronic Discovery and Legal Malpractice
Posted on January 25, 2008Electronic Discovery is with us, has been regulated, and there are now standards for its use in litigation. Attorneys for clients now have to advise on how to store, produce, resist demands, and comply with the appropriate rules.Whenever there is general agreement upon a standard of practice, the question of deviation from that standard arises...
Fee Dispute Arbitration and Legal Malpractice
Posted on January 24, 2008What does a client do when faced with an attorney fee demand? As is true with most things in life, a reflexive response is precisesly the wrong move. Many clients [and unfortunately many attorneys] advise or choose to arbitrate the fee dispute...
Pro-Se on Both Sides in a Federal Court Legal Malpractice Case
Posted on January 23, 2008It is rare to see a pro-se defendant in the rarified air of Federal District Court, even more rare for both sides to be pro-se. Here, in DANIEL KIRK and LINDA KIRK, v. JOSEPH M. HEPPT, ESQ., 05 Civ. 9977 (RWS) UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK January 16, 2008, Filed , the tide seems to be turning in favor of the defendant attorney...
Is a Legal Malpractice Attorney Required to Mitigate?
Posted on January 23, 2008Here is the hypothetical: Plaintiff hires attorney A to prosecute an action against the State of New York, and does not timely file a notice of claim. There is still time within the statute of limitations to file a motion seeking leave to file a late notice of claim...
Lawyers Not Playing Nicely and Legal Malpractice
Posted on January 23, 2008Wrangles between lawyers is certainly no headline. Lawyers allowing venom to overpower reason similarly is no news. The case of Minchew, Santner & Brenner, LLP, and Jamie M. Minchew, v. John H. Somoza, Eleftherios Kravaris, Melito & Anderson, P...
Alcohol and Legal Malpractice?
Posted on January 22, 2008The West Virginia Record reports this case in which plaintiff was terminated by his employer. Plaintiff's claim is that he was fired for doing jury service. He retained defendant attorney, and the case was litigated in Federal District Court, where it was dismissed on summary judgment...
Attorney Client Privilege and Legal Malpractice
Posted on January 21, 2008Here is our article from the New York Law Journal on Attorney Client Privilege and Legal Malpractice.
Lies, Crimes or Legal Malpractice
Posted on January 18, 2008CEO Gregory Reyes was sentenced this week. Judge Charles Breyer told him that a false affidavit netted him 21 months rather than 15 months. Here's the problem for Reyes: his attorney drafted the document, and admitted his own "poor drafting...
Pennsylvania Formula for Calculating Statute of Limitations in Legal Malpractice
Posted on January 18, 2008When does the statute of limitations start to run on a legal malpractice case in Pennsylvania. Hinshwaw reports on this issue. "The Pennsylvania Superior Court held that the statute of limitations for a legal malpractice claim begins to run when the malpractice is committed and is only tolled until the plaintiff should reasonably have found out about some degree of injury...
Judicial Estoppel in Legal Malpractice
Posted on January 17, 2008Here is a case from New Jersey which gives a full explanation of "judicial estoppel" and its application to legal malpractice. Generally, the issue comes up when a client agrees to a settlement, which it later finds to be inadequate...
Legal Malpractice Verdict after Medical Malpractice in a Death Case
Posted on January 17, 2008Failure to diagnose breast cancer...it's a horrible thing. When we think of a family member who could have been saved, who dies because of medical negligence, where a simple mammogram or simply reading it correctly could have made a difference....
A Milestone Reached
Posted on January 16, 2008Today, we reach 1500 articles on Legal Malpractice.We would like to thank our readers for persevering with us through server breakdowns, slow story days, and our exploration of the legal malpractice world.
Are Experts Always Necessary in Legal Malpractice?
Posted on January 16, 2008Experts are generally, but not always necessary in legal malpractice cases. The test is whether a fact-finder can rely upon its own knowledge. Here is an interesting case, Frances Northrop, respondent, v Eric Ole Thorsen, appellant. (Index No...
Recent Cases in Legal Malpractice
Posted on January 15, 2008RECENT CASES IN LEGAL MALPRACTICE 1. CHICAGO TITLE INSURANCE COMPANY, Plaintiff, v BARBARA J. MAZULA, Defendant and Third-Party Plaintiff-Appellant; JAMES E. KEABLE, Third-Party Defendant-Respondent. SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT 2008 NY Slip Op 27 January 3, 2008 This is a case in which the question becomes whether an individual or an estate hired the attorney...
When is a QDRO Legal Malpractice?
Posted on January 14, 2008That's not really the question, but here is a case which comes up frequently in matrimonial cases. One of the reasons that it comes up frequently, is that drafting of, and service of the QDRO is almost the last thing an attorney does for the martimonial client...
Contingent Fees, Appeals and Legal Malpractice
Posted on January 14, 2008Attorneys and clients enter into contingent fee retainer agreements, which do not directly address the question of an appeal. Is the legal fee for an appeal the responsibility of the client or the attorney in this situation? Here is a case from Madison/St...
Cuban Embargo, Legal Advice and Legal Malpractice
Posted on January 14, 2008It's winter, and our thoughts turn to the Caribbean. Here, a Philadelphia law firm, 1400 lawyers strong, gave commercial advice pertaining to the Cuban embargo, and are now defendants in a legal malpractice case. Here is the story from Bloomberg, via the Caribbean news agency...
Barnett v. Schwartz and Pre-Judgment Interest in Legal Malpractice
Posted on January 10, 2008The question of pre-judgment interest in legal malpractice has not been widely understood . Generally, it was thought that an award of pre-judgment interest was determined on the same basis as in the underlying case. Contract damages, yes...
A Seminal Case in Legal Malpractice
Posted on January 10, 2008This is a seminal, important case which will, we predict, be widely cited and discussed in Legal Malpractice. Barnett v. Schwartz, 2007 NY Slip Op. 09712, 2d Dept, December 11, 2007 is important for several reasons. We’ll discuss the first here“But for” causation is not as difficult as had previously been believed...
Attorney Fees, Dismissal and Legal Malpractice
Posted on January 09, 2008Here is an article from Hinshaw which tells us that "A law firm may represent itself and may pursue not only contract or quasi-contract but also tort theories in suing a former client, at least as long as the amount sought in damages does not exceed the amount of unpaid legal fees""Law firm Pedersen and Houpt provided a variety of legal services to Summit Real Estate Group, LLC (Summit) including successfully litigating a breach of contract claim...
LA Sues its City Attorney in Legal Malpractice
Posted on January 08, 2008This story from LA is about a failed City of LA law suit over an underground gas main construction project. The action was filed late, and dismissed. Now the city attorney is a defendant."A jury will decide if the former attorney for the city of Vernon committed legal malpractice and if he should pay more than $1 million in damages...
City Attorney, A Firing and Legal Malpractice
Posted on January 07, 2008In this New Hampshjre newspaper report, a city attorney is now a defendant in legal malpractice. "CLAREMONT - The City of Claremont has filed a lawsuit alleging malpractice and negligence on the part of then-city solicitor John J. Yazinski for his role in the dismissal of former city tax assessor Steve Snelling in September 2000...
A State Court Patent Legal Malpractice Case in Colorado
Posted on January 07, 2008While, generally, patent law depends on Federal Law, and provides federal question jurisdiction in Federal District Court for patent legal malpractice cases, here is an interesting state court appellate decision from Colorado. Bristol v. Osman, Court of Appeals, Colorado...
Shredding, Files, the New Year and Legal Malpractice
Posted on January 07, 2008Small towns have communities that notice small events. Here is an example: a lawfirm throws out old files, and they mistakenly sit on the curb, awaiting the garbage truck. The local news station finds out, and puts this story on their website...
A Legal Malpractice Lawsuit that Just Won't End
Posted on January 04, 2008Law.Com reports on this Venable Legal malpractice case:"In 2004, Venable partner Stefan Tucker's former client Alan Weinberger sued him for malpractice. The claim stemmed from a prior suit between Weinberger and another of Tucker's ex-clients, Lev Volftsun...
NJ Criminal Defense Legal Malpractice Case II
Posted on January 04, 2008McNight v. Public Defender is recently decided New Jersey Legal Malpractice Case. We started a discussion yesterday.Today, let's look at the court's description of the three approaches to criminal defense legal malpractice cases.1. Need for Actual Innocence: NY is among these jurisdictions...
Weil Gotshal and Texas Legal Malpractice Case
Posted on January 04, 2008NY Lawyer [and Law.Com] report that a Texas business owner has sued Weil Gotshal & Manges over its handling of a Texas credit union acquisition."Dallas businessman has sued Weil, Gotshal & Manges, alleging that the firm and two of its partners took advantage of him as a client by lessening his interest in a deal while he was undergoing treatment for cancer...
New Jersey Sets Rules for Criminal Defense Legal Malpractice Caes
Posted on January 03, 2008Legal malpractice cases against the criminal defense attorney are confusing. In addition to all the other elements, in NY one must prove actual innocence or exoneration. When the statute begins to run [date of malpractice, date of last representation, date of final judgment, date that post-conviction motion decided, reversal or exoneration] is a difficult call...
$ 3.7 Million Verdict is "Too Small" in Legal Malpracice Case
Posted on January 01, 1970We've been following this case. Bank is scammed by person running a structured settlement company, and clients' structured settlement funds are lost. Bank sues the attorney who recommended the structure guy, and on Friday, a jury awarded the bank $ 3...
Paul Hastings Settles $ 4.5 Million Bankruptcy Legal Malpractice Case
Posted on January 01, 1970This article from the Daily Report tells us more about a new trend, legal malpractice cases arising and related to bankrupcy filings:"A federal judge has approved a settlement—apparently totaling $4.25 million—of a lawsuit against Paul, Hastings, Janofsky & Walker...
In House Insurance Lawyers May Defend Insureds in Texas
Posted on December 31, 1969The familiar triumverate of client, insurance company and independent defense attorney is a familiar model. Certainly, there are cracks in the facade. The attorney has dual roles, and a divided loyalty... In Texas, a recent ruling permits the insurance company to use in-house attorneys to defend insureds...
In NJ, are Legal Malpractice Attorney Fees Recoverable?
Posted on December 31, 1969Here is a subscription article from Law.com on recoverable legal fees in NJ legal malpractice litigation:"A six-year-long legal malpractice epic shows why the N.J. State Bar Association wants to abolish the state's unique fee-shifting benefits...
Another Big Law Bankruptcy Legal Malpractice Case
Posted on December 31, 1969Bankruptcy Legal Malpractice cases are on the rise. Trustees have greater powers than do regular plaintiffs, there are longer statutes of limitation in Bankruptcy situations, and the numbers are really big. Here is a case from the NY Lawyer site...
Patent Law, Legal Malpractice, State Court and Wisconsin
Posted on December 31, 1969Here , in AccuWeb, Inc., Raymond Buisker, v. Foley & Lardner, Harry C. Engstrom, Quarles & Brady LLP and Nicholas Seay, we find one of the rare state court patent legal malpractice cases. Generally, as patent law is a federal question, one of the parties either brings the action in Federal District Court or removes it there...
Blue Sky Law Case against NY Law Firm
Posted on December 31, 1969This front page article from the NYLJ tells of a new type of legal malpractice case originating in a securities law suit, by a non-client, stretching the bounds of privity:"A federal judge in Manhattan has ruled that a lawsuit brought under Oregon "Blue Sky" law may proceed against the New York law firm Seward & Kissel for allegedly aiding and abetting securities fraud by a client hedge fund...
Actual Innocence in Criminal Law and in Legal Malpractice
Posted on December 31, 1969Today's Outside Counsel Column in the NYLJ by Garber and Vaughn does not mention or discuss legal malpractice. Nevertheless, its thesis is highly relevant. "The 212 people exonerated by DNA evidence since 1989 have raised significant awareness about the criminal justice system's failure to protect the innocent from wrongful conviction and have led to reform in the handling of criminal investigations and prosecutions...
Legal Malpractice, Bankruptcy, Calendar Practice in this NJ Legal Malpractice Case
Posted on December 31, 1969Here is a primer in how litigation can go sour, starting with one problem, leading to one after another. This NJ case discusses affidavits of merit in NJ legal malpractice cases, pro-se litigants and potential dispensations to them, and the statute of limitations in bankruptcy cases...
Stay of Statute of Limitations in Legal Malpractice
Posted on December 31, 1969There are certain stays of the statute of limitations, universally. Here, in this legal malpractice case plaintiff offered the testimony of a psychologist, probably to prove that plaintiff was unable to commence an action, or protected from the running of the statute of limitations...
Blogging, The First Amendment and Legal Malpractice
Posted on December 31, 1969We ran acrossthis story today. Prior restraint of a blog, a legal malpractice case, and a question of who is actually posting the blog. "Mystery Blogger Caught Up in First Amendment Flap Posted December 3rd, 2008 by Sam Bayard in Massachusetts Anonymity Legal Threat Prior Restraints On Monday, the blog-hosting service Blogger took down a blog called "Jeffrey Denner's ineffective assistance of counsel" after Jeffrey Denner notified Blogger that a Massachusetts court had issued a restraining order prohibiting one Derrick Gillenwater from using the words "Jeffrey" or "Denner" or "Jeffrey Denner" in any blog postings...
Not Legal Malpractice, and Not Defamation
Posted on December 31, 1969Legal Malpractice litigation succeed es earlier litigation, by its very definition, and all know that "but for" refers to the first case. An unfortunate corollary to this definitional fact is that clients and some attorneys turn to legal malpractice litigation as a default mode of trying to rectify all wrongs, whether caused by the attorney or not...
Again, Not Legal Malpractice and Not Defamation
Posted on December 31, 1969This is the same heading, but relates to a totally different set of circumstances. Is an attorney/law firm united in interest with its former client, when the former client is sued, but the attorney is not? May plaintiff [or a third-party plaintiff] rely upon the relation-back principal in order to bring in the attorneys late in the case? We see a well reasoned opinion of Justice Warshawsky in the matter of Arbor Secured Funding v...
Are Hemlines, Finances and Legal Malpractice Frequency Related?
Posted on December 31, 1969It was always a first year economy class aphorism that hemlines were positively correlated with the state of the economy. Better finances led to brighter prospects, led to more sprightly dresses, with higher hemlines. A downturn in the economy leads to a similar sartorial downturn...
Arbitration and Legal Malpractice
Posted on December 31, 1969Arbitration and legal malpractice form an uneasy fit. One reason is that discovery is limited; another is that the case is decided by a panel of attorneys. While in many ways a panel of "wise men" may be preferable, in legal malpractice plaintiff will generally prefer a jury...
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How to collect a personal loan from a spouse?
You local court will probably have someone to offer you some assistance as you p...
Haw can I join with my family who live in the USA?
Only you are allowed to can join your sister....
How to make a landlord honor an option to buy provision in the lease (OH)?
Most leases are written as a one year agreement, if neither party elects to form...
If my stepmother goes on Medicaid, can they take my father's house and assets if they have been separated for many years but are still legally married (NJ)?
if medicaid up there is the same as in sc, they willnot take the houses. medicai...
Our landlord just put our rental on sale. We have been excellent tenants and have never had issues with rent payments. We do not want realtors bringing clients into our home when we are not present. Recieved a letter fro
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