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Legal Malpractice

New York Attorney Malpractice Blog

Legal Malpractice Attorney & Lawyer
By Andrew Bluestone

Post Frequency: 9.8/day

Last Entry: April 01, 2011 at 06:03:18

Charging Liens and Their Calculation

Posted on October 11, 2010
In 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...

Fee Disputes in the Big Arena and Legal Malpractice

Posted on October 08, 2010
Today's New York Law Journal reports on a fee dispute.in an article by Susan Beck of The American Lawyer. This, however is not a fee dispute one might see on a typical day in the fee dispute world. Typically, those fee disputes are for sums less than $ 50,000...

Attorney Client Privilege in Legal Malpractice Litigation

Posted on October 07, 2010
Carl v. Cohen, Supreme Court, New York County, Justice Edmead 2009 NY Slip OP 30806(U), April 15, 2009 illustrates two distinct principals in the area of attorney-client privilege. The first is privilege and at issue communications. The second principal, to be discussed on Friday, is relation-back and the statute of limitations...

Non-Economic Damages in Legal Malpractice Litigation

Posted on October 06, 2010
Plaintiff sues defendant attorneys for legal malpractice. Among the claims of damages are financial losses in the underlying case, as well as emotional -pain and suffering-damages based upon outrageous conduct by the attorneys. Are these non-economic damage claims permissible? In New York, there may not be claims for non-economic damages arising from legal malpractice...

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One Good and One Bad Affidavit in Legal Malpractice Case

Posted on October 05, 2010
The decision in this case is straightforward, but gives practitioners little practical advice on how to word and present an expert's affidavit. In Giardina v Lippes, 2010 NY Slip Op 06834; Decided on October 1, 2010; Appellate Division, Fourth Department we see two things...

How Bad Does the Complaint Have to Be to Get Dismissed in a Legal Malpractice Case

Posted on October 04, 2010
Thomas v Dinkes & Schwitzer, P.C. .2010 NY Slip Op 51666(U) ,Decided on September 23, 2010 Supreme Court, Kings County ,Rivera, J. tells us that a completely inchoherent complaint, while "filled with verbs, nouns, adverbs" etc, will be dismissed...

Who's to Blame for a Typo? Is it "Third-Pqrty" Legal Malpractice?

Posted on October 01, 2010
Real Estate contracts are signed in 2009 A clause states that the deposits may be reclaimed (returned to buyers) if the first closing does not take place by September 2008. Sellers really meant by Weptember, 2009. First Closing took place in February 2009...

Fees, Quantum Meruit and Seth Rubenstein

Posted on September 30, 2010
One of the more intriguing aspects of the attorney fee and disputes field is the interplay of a strongly put rule to attorneys, and the consequences of ignoring that rule. The rule: "You must have a retainer agreement." What happens when an attorney sues for fees, yet failed to have a retainer agreement as defined in 22 NYCRR 1215 et seq ? Really nothing...

Case is Dismissed, Time Passes By and Plaintiff Loses a Legal Malpractice Case

Posted on September 29, 2010
Plaintiff suffers a personal injury trip and fall, and hires attorney 1 to sue the landlord. The landlord is sued. Case continues and eventually an inquest is ordered. At the inquest, the Court tells the attorneys that they need medical records...

Jurisdiction and Arbitration in a Legal Malpractice Case

Posted on September 28, 2010
New York corporation has a California case. An attorney comes calling, soliciting business and asking the corporation to hire the California attorney. They agree, and in the retainer agreement are two items. One is a jurisdiction choice and one is an arbitration clause...

Disgorgement in a Breach of Fiduciary Duty-Legal Malpractice Case

Posted on September 27, 2010
Reisner v. Litman & Litman PC is a motorcycle - car collision case in which plaintiff was driving his motorcycle in Nassau County. He was driving on a road that had become known to be dangerous. At this particular intersection there had been a large number of turning left accidents, which later was said to be caused by a double set of traffic lights, which to a certain extent contradicted each other...

Representing Both Sides and No Retainer Agreement in Legal Malpractice Case

Posted on September 24, 2010
A series of loans, a single attorney in the transactions, a failure to file the mortgage, a defense that the clients should have filed the mortgage themselves, a loss of $ 750,000. How can this happen to sophisticated lenders? The question is not exactly answered, but the picture that emerges from Brija v...

A Side Trip Throught Bankruptcy, Factoring and Legal Malpractice

Posted on September 23, 2010
The rapid transferring back and forth of rights and liabilities, through assignments, factoring and bankruptcy is highlighted in Maggioni v Clyde Meredith Schaefer, Esq., NY SlipOp 32544 [Sup.Ct. New York County, Wooten. J] Apparently IFT International Inc...

Continuous Representation in a Two Part Legal Malpractice Case

Posted on September 22, 2010
Gatto v Burke & Burke, NY Slip Op 32511, Nassau County, Justice Bucaria illustrates a two part transactional represent ion by attorneys of the clients in a business sale case. Facts are simple: plaintiff sells restaurant to X and uses target attorneys as transactional counsel...

Privilege and Legal Malpractice

Posted on September 21, 2010
An 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...

Bankruptcy Hearings and Res Judicata

Posted on September 20, 2010
We 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...

A Car Case, Some Mistakes, Legal Malpractice

Posted on September 17, 2010
An interesting phenomenon in legal malpractice is the persistence of errors in a long series of otherwise isolated incidents. DiGiacomo v Levine ;2010 NY Slip Op 06566 ; Decided on September 14, 2010 ; Appellate Division, Second Department illustrates how this hoppers...

It's Too Early for Legal Malpractice

Posted on September 16, 2010
Ripeness and mootness are two concepts not all that readily associated with litigation. If a case exists, it should be ready to adjudicate, no? If someone has been damaged, then the case cannot be moot? We see one such example in GREENSTREET FINANCIAL, L...

Who Owes the Duty in Legal Malpractice?

Posted on September 15, 2010
An auto accident. Severe injuries. A multi-million dollar settlement. Is that the end of the story? TOKYO MARINE AND NICHIDO FIRE INSURANCE CO., LTD., as subrogee for Mitsubishi Motors Credit of America, Inc., Plaintiff, -against- ROSALIE CALABRESE and LOUIS FACCIPONTI, Defendants...

Carvalho and Questions to a Party Witness

Posted on September 14, 2010
In a remarkably detailed and reasoned decision, Justice NeMoyer of Supreme Court, Erie County dissects the holding of Carvalho v New Rochelle Hosp. 53 AD2d 635 [2d Dept 1976]. Carvalho is a seminal case in trial practice, which permits questioning of one party [lawyers as well as doctors] as experts in their own case...

Is There a Relationship in this Legal Malpractice Case?

Posted on September 13, 2010
Trusts and estates law and legal malpractice cases often intertwine. A unique and singular thread runs through them. Death is almost always a part of the equation, and often, there is a question of whether the attorney represented decedent or beneficiary...

When is an Expert Necessary in Legal Malpractice Cases?

Posted on September 10, 2010
There are two instances in New York law where an expert might be necessary in legal malpractice litigation. One is at the trial of the matter, and the other at a motion for summary judgment. In general, an expert is necessary in any litigation where the "issues in this case are not part of an ordinary person's daily experience...

"Law of the Case" in Legal Malpractice

Posted on September 08, 2010
Legal malpractice cases are unlike anything else...they all have a prior case background, and each must contain proofs of the "but for" variety. Put another way, law of the case is almost always a consideration in legal malpractice cases...

Can Landlords Attorney Commit Legal Malpractice Against Tenant ?

Posted on September 07, 2010
In Ramirez v. 164 West 146 Street LLC, the question is raised whether a tenant, illegally evicted because the warrant of eviction named a former landlord and not the current landlord may successfully sue the landlords' attorney. The answer is, no...

Insurer v. Defense Attorney in Legal Malpractice

Posted on September 03, 2010
It's not often that one sees an insurer v. defense attorney legal malpractice case, but this one seems to have very big damages. Law firm Barry, McTiernan & Moore, a well known defense firm in New York defended a synagogue fire case that was valued in excess of $ 16 million...

Motions to Dismiss and Legal Malpractice

Posted on September 02, 2010
The relationship between a motion to dismiss [CPLR 3211]. a request to amend the pleadings, and dismissal on the merits is wrought with both emotion yet is based upon logic. No author of pleadings appreciates a motion to dismiss. The motion generally brays that there is "no merit", the pleading is "frivolous", is badly written, etc...

Did He or Didn't He is a Legal Malpractice Question

Posted on September 01, 2010
TJS of N.Y. Inc. v. Koppelman, 2010 NY Slip Op 32329(U), by Justice Denise F. Molia of Supreme Court, Suffolk County is something of a cliff-hanger. When we read it, there was no foreshadowing, no pre-tensioning nor any insight into how the decision would come out...

E-discovery and Legal Malpractice

Posted on August 31, 2010
We grant that it is a stretch to jump from new statutes to legal malpractice, but it is a given that when the rules change, there will be mistakes made. Mistakes, the eternal produce of human endeavor is known as legal malpractice within the legal community...

Unintended Consequences in Legal Malpractice

Posted on August 30, 2010
Legal representation in even simple matters can lead to unintended consequences. As an ExampleH & J Restaurant v, A & J Grand Enterprises and Leigh, 2009 Slip OP 31544, 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...

Celebrity Litigation and Multi-Million Sanctions

Posted on August 26, 2010
It's not exactly legal malpractice and its not New York, but the headline and back story of this $ 1.96 Million sanction to Paul, Weiss, Rifkind, Wharton & Garrison and Lowenstein Sandler shocks the eye. Celebrity sues celebrity over an oral agreement to make a bequest...

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