A Legal Malpractice Story Right Out of Grisham

There are several views of the legal malpractice world.  One (the most cynical) is that all legal malpractice cases are reflexive attempts to get out of paying attorney fees.  A second view is that legal malpractice is venomous hindsight and unfair to the hard working attorney.  A third view is that legal malpractice is a discipline arising from the thoughtful analysis of reasonable attorney conduct. 

Whatever your view, this attorney is extraordinary, and not in a good way.  Matter of Novins
2014 NY Slip Op 03465 Decided on May 13, 2014 Appellate Division, First Department Per Curiam.  Not only did Mr. Novins completely lack any sense of loyalty, he was awfully clumsy at the same time.

"In February 2006, respondent was hired by Ginarte O'Dwyer Gonzalez Gallardo & Winograd LLP (the Ginarte firm), where he was assigned to work on Bernardini v City of New York and Angel Villirrini [sic], a personal injury action filed in June 1994. While off duty, Bernardini, a New York City police officer, had been shot and wounded in a bar by Villarini, another off-duty police officer. Although the Ginarte firm served the City with the summons and complaint, it never served Villarini.

In March 2007, the City was granted summary judgment in the personal injury action on the ground that the City had not negligently supervised Villarini because it did not have notice of his dangerous propensities. This Court affirmed (45 AD3d 466, 466 [1st Dept 2007], lv denied 10 NY3d 702 [2008]).

On January 12, 2008, while the motion for leave to appeal to the Court of Appeals was pending, respondent and Bernardini met in a restaurant and signed a "Personal Services Agreement" (the Agreement) under which Bernardini agreed to "give" respondent 45% of any net recovery he received relating to the Villarini incident. This included the personal injury action and a legal malpractice claim to be brought against the Ginarte firm "for negligently failing to timely serve ... Villarini, ..., for neglecting to work on [the] case over the many years, for failing to take the deposition of ...Villarini, for having failed to obtain a copy of ... Villarini's .... Personnel File in a timely manner and for failing to bring a Motion ..., for spoliation of this key evidence." Although the Agreement, which respondent drafted, did not specify the services that he was to provide, respondent acknowledges that he agreed to serve as a witness for Bernardini in the malpractice action against his employer.

In May 2008, Bernardini commenced a malpractice action against the Ginarte firm and its principals. Between February and March 2009, respondent left a series of voice-mail messages for Bernardini, asking Bernardini to call him back. On April 28, 2009, respondent left Bernardini a message in which he referred to risking his neck by putting certain notes back into the personal injury action file which Bernardini would need for the malpractice action. In May 2009, respondent left a message stating that he would be leaving the Ginarte firm in 30 days and would be able to prove the malpractice and coverup. On May 28, 2009, respondent left a message [*3]complaining that he had called Bernardini about 30 times but received only one call back a few weeks earlier. Falsely stating that he had given up his job, respondent also said that he considered the Agreement to be in full force and effect and threatened to throw out all the evidence in his possession unless Bernardini called him back. Ten minutes later, respondent left another message stating he would take appropriate recourse to enforce the Agreement as soon as he left his firm.

In April or May 2010, during the course of discovery, the Ginarte firm learned of respondent's secret side agreement with Bernardini, but did not fire him. On or about August 17, 2010, the firm learned of the messages respondent had left on Bernardini's voice mail. On August 20, 2010, respondent was deposed in the malpractice action, at which time he retreated from his prior accusations of malpractice against the Ginarte firm. On or about August 26, 2010, Bernardini filed a disciplinary complaint against respondent. On or about August 31, 2010, the Ginarte firm fired respondent, and on September 7, 2010 they filed a disciplinary complaint against him.

Result?    " Accordingly, the Committee's motion should be granted, the Hearing Panel's findings of fact and conclusions of law sustaining charges one through four and six confirmed, and respondent suspended from the practice of law for a period of one year and until further order of this Court. "