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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

More Definitions and Legal Malpractice

Posted on August 03, 2009
In 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, 2009
This 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, 2009
In 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, 2009
In 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...

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Legal Malpractice and Fraud: The Relationship

Posted on July 28, 2009
Fraud 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, 2009
When 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, 2009
No 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, 2009
Actions 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, 2009
Plaintiff 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, 2009
Attorney 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, 2009
Legal 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, 2009
Today 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, 2009
In 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, 2009
Here, 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, 2009
In 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, 2009
There 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, 2009
Legal 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, 2009
One 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, 2009
Criminal 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, 2009
Privity 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, 2009
In 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, 2009
Defendant 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, 2009
In 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, 2009
Here 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, 2009
Legal 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, 2009
Many 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, 2009
In 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, 2009
Privity 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, 2009
So 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, 2009
Legal 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...

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