New York Attorney Malpractice Blog

Read thisarticle, if only for the photograph of Sgt. Schultz, and the "I knew nothing" tag.

"The case of Consolidated Sports Media Group v. Godwin Gruber, which is scheduled to go to trial next month, reads at times like a John Grisham novel, complete with allegations of malpractice, the aforementioned pump-and-dump stock scams, the destruction of documents, forgery, securities fraud, unauthorized “blast faxes,” insider trading, NASCAR lawsuits, breaches of fiduciary duty, conflicts of interest, perjury and, of course, fraudulent billing.

In its original petition, CSMG, distributor of sports instructional videos with Priest Holmes and Mia Hamm and a Racetrack Girls Go Nutz series similar to the popular Girls Gone Wild franchise, seeks unspecified damages, exemplary damages and disgorgement of profits. Most of the alleged improprieties center on Godwin Gruber attorney Phil Offill, though Jordan is implicated by his association, position and, ultimately, inaction.

Jordan spent the majority of his three-hour-and-33-minute deposition shrugging, in short: I dunno. The good news: Jordan is not a yes man. The bad news: He’s a No-It-All.

Over the course of his extremely hazy 167-page deposition, Jordan managed to utter “I don’t know” 86 times, “I don’t remember” 20 times, “I don’t think so” 17 times, “I don’t recall” 16 times, “I’m not sure” 11 times, “I guess” 11 more times, “Not to my knowledge” 11 more times, “I’m not aware” seven times, “I have no idea” three times, “I don’t have a real understanding” three more times, “I forgot” twice, “I’m not familiar” twice, “I don’t have any information” two more times and, once apiece, “I don’t believe so,” “I can’t remember,” “I knew nothing,” “I don’t have a specific recollection,” “I honestly don’t remember” and “I honestly don’t know.” It’s better than Hogan’s Heroes.

In some cases, Jordan’s selective memory would be understandable, even acceptable. After all, when you tell someone you don’t know something, they can’t hold anything against you. But he served as the managing partner of the firm during the alleged wrongful activities by Offill, and he was also executive committee liaison during the investigation into the incident at the heart of the lawsuit.

Jordan has been a trial lawyer in Dallas since 1964, and in ’95 he lost the mayoral election to Ron Kirk. Becoming managing partner for Godwin Gruber in the fall of ’04, he reduced his role and responsibility with the firm in December ’05 in order to accommodate his rekindled desire to seek political office. "

It's not entirely clear how the relationship between Attorney Fishkin and Marlow arose with Attorney Taras but it appears that Taras referred cases to Fishkin, or Fishkin was hired by Taras to work on the cases.  many settled, but Fishkin and Marlow were not paid.  They sued Taras for legal fees and lost on the basis that they did not file retainer statements with the Office of Court Administration within 15 days.  This rule applies in the 1st Department for contingent personal injury cases.  See Justice Edmead's decision today.

"DEFENDANT ATTORNEY moved for summary judgment in this fee dispute with plaintiff attorneys, who claimed they were hired as outside counsel by defendants under an oral agreement to render legal services on personal injury cases in which defendants were retained by a client on a contingency fee basis. Defendants argued plaintiffs failed to file retainer statements in all nine of their claims under 22 New York Codes Rules and Regulations §603.7(a)(3), precluding them from recovering any legal fees. Plaintiffs argued the filing of a retainer statement was not a condition precedent to receiving a legal fee. The court stated an attorney who was retained by another attorney on a contingency fee basis in a personal injury action must file a retainer statement with the Office of Court Administration within 15 days of being retained. Thus, it stated as retainer statements were not timely filed in three matters and in the absence of proof retainer statements were timely filed in the remaining six claims, those actions could not be maintained, granting defendants' motion. "

A new release tells us that Elizabeth A. Starrs has been elected President of the Colorado Bar Association. Relevance to this blog is that she has "tried more legal malpractice cases than any other lawyer in Colorado."

This is a niche within a niche field. Here is a new review of a legal malpractice text in the Sarbanes Oxley act area.

A third hand report of a legal malpractice case, won by plaintiffs at the trial level, lost at the Nevada Supreme Court level and denied cert by the US Supreme Court.

The Law Journal online services reports that Epstein Becker Green has been sued in a huge action.

Here's an interesting article. It's old, but it's a University of Chicago Law review article by Tom Bell

Without specifically saying so, a Hiscock & Barclay blog opines that collectability is the burden of plaintiff in the Second Department. However, there is a recent conflicting case in the First Department, Lindenman v. Kreitzer, 7 AD3d 30 [1st Dept 2004], see: 7/11/05 "Collectability in Attorney Malpractice" on this site.

Legal malpractice appears in all areas of legal work, and is more apparent to specialized practitioners than to the lay public or the general attorney population. Here is an example of a Patent Law Blog dealing with attorney malpractice. It deals with conflict of interest.

What 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."

The first element of a relationship between the client and the professional was previously discussed. The second element, deviation, is shown by evidence, not necessarily expert, which shows that the acts of the professional fell so below the good and accepted practice of law in New York, that a jury would be permitted to find that the acts below standard.

Expert testimony is necessary when the deviation is subtle; an example could be the failure to supply an affidavit of merits to restore a case marked off calendar, the failure to respond to a CPLR 3216 notice, or failures in response to a motion for summary judgment. Expert testimony is not always necessary however. None is needed to demonstrate the deviation in failing to file within the statute of limitations. Bad outcome do not necessarily equal a deviation. Furthermore, questions of judgment of strategic choice cannot serve as the basis of malpractice. An attorney is permitted the reasonable choice of strategy, if supported by acceptable reasoning. The strategic choice must be reasonable both objectively and subjectively. The difference between strategic choice and mistake are subtle, and create the most difficult cases.

The third element of proximate cause encompasses both the typical analysis that arises in all negligence litigation and the additional element of "but for." The plaintiff must demonstrate not only that the deviation was a substantial cause of the poor outcome, but must additionally show that "but for" the deviation there would have been a different, better or more positive outcome. An example of this potential difficulty arises in an automobile accident. No matter how many deviations are shown, it may be that the maximum insurance for the other driver limits the recovery. If that is true, it will be impossible to show that "but for" the deviation, more than the policy limit was available and could have been recovered from the defendant.

Presented by the Law offices of Andrew Lavoott Bluestone
233 Broadway, 27th Floor, New York, NY 10279
[ph] 212.791.5600

What is 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."

Malpractice typically occurs when a professional fails to exercise his or her professional skills in an assignment at the necessary standard of care, skill and learning applied under the circumstances by the average prudent reputable member of the profession in the "community". The analysis is based upon the standard of care for the professional in the community" what other professionals in the same field do for their clients who are located in the same geographic area. In New York, courts will hold all attorneys to the same standard of professional performance.

The first necessary element is a professional relationship. In order to sue for professional malpractice, the plaintiff must have retained the attorney. There must of course be a relationship in privity, between the professional and the plaintiff such that the professional owes the plaintiff a duty. In attorney malpractice either a written retainer, proof that the attorney engaged in work or proof that the attorney appeared for the client is necessary. While in litigation often there is clear proof of representation; in transactional settings, representation may be less clear. Proof to a jury's satisfaction of actual representation must be demonstrated. This proof may come from the correspondence of the professional, from papers authored by the attorney or from litigation documents.

In the coming months we will discuss the stages of representation, standards of proof, statute of limitations, continuous representation, and attorney fees in light of malpractice claims.

Presented by Law offices of Andrew Lavoott Bluestone
233 Broadway, Suite 2702, New York, NY 10279
212.791.5600

Here are the new Legal Malpractice Cases reported in New York.

1.Tolmasova v. Umarova, 2005-00917 , SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT , 2005 NY Slip Op 7523

Pro-se litigant's case is dismissed after failure to prosecute.

Cases which are dismissed may, under certain circumstances, be "recommenced" pursuant to CPLR 205[a]. If the case was filed timely, and was not dismissed on the merits, or for failure to prosecute, and is recommenced within 6 months, it may still be viable.

As if running a law practice was not difficult enough Ben Mitchell reports from the UK that in the fall of an insurer, TAG, firms either failed or were unable to renew their insurance coverage. Many legal malpractice claims appear not to be covered by insurance.

Loyala University Law School is presenting its 4th Annual National Civil Trial Competition. This year it is based upon legal malpractice arising from a wrongful criminal conviction.

A South Bergen NJ newspaper reports a very long statute of limitations in a legal malpractice case. Seemingly spread over more than 10 years, plaintiff was injured in a supremarket personal injury accident, and the case was dismissed. It appears to be some sort of calendar dismissal.

In a small article, the New York Times Metro Briefings reports on a legal malpractice case against Barry Scheck, famous for the Innocence Project and for his association with Johnny Cochran at Cochran, Neufeld & Scheck.

Upon what may an expert in an legal malpractice trial rely? What are the bases for legal malpractice expert testimony? A partial answer is given in First Union National Bank v. Benham, an 8th Circuit case this month.

Buried within the political and social commentary on the president's nominee, Harriet Miers, is a nugget of legal malpractice information. Blue Mass. Group tells us that while the nominee was a managing partner at Locke Liddell she approved settlement of two huge legal malpractice cases. One settlement was for an allegation that the law firm knew of an ongoing fraud and failed to take action, and the second case was similar. The two cases settled for $ 30 million. The web site quotes David Sirota of Huff Post.

The New York Law Journal reports a case which quotes a famous 1697 line from a William Congreve play: "Heaven has no rage like love to hatred turned, and hell has no fury like a woman scorned." In this legal malpractice case, a matrimonial, the issues is whether the attorney was his or her's.

The Wall Street Journal reports today that "More U.S. Legal Work Moves to India's Low Cost Lawyers." Eric Bellman and Nathan Koppel write that Pangea3, a New York based global legal outsourcing company has more than 25 lawyers in india and over 20 US customers.

Does legal malpractice occur more often in small or large firms? What are the indicators or causes of legal malpractice on an institutional level? These issues are discussed and analyzed by My Shingle://www.myshingle.com in an interesting article entitled Malpractice Isn't Only A Small Firm Problem.

For a great roundup of legal ethics and legal malpractice prevention articles see Ben Cowgill's Blog.

NYLJ reports in its "Trends in Real Estate and Title Insurance" special report that 16% of all legal malpractice claims are real estate related.

Daubert on the Web reports that the 8th Circuit has reversed the exclusion of attorney expert testimony in an attorney malpratice action. See First Union Nat'l Bank. v. Benham,, No. 04-3656(8th Cir.September 13,2005)(Murphy,Bye,& Smith,JJ.).

Jim Calloway writes a law practice blog. Speaking of the Suzanne Rose Risky Biz material, she says that ethics violations and legal malpractice are the basic business risks of a law office.

Anthony Lin of the New York Law Journal reports that National Benevolent Association has filed a suit in bankruptcy court against Weil Gotshal & Manges LLP for a "disasterous" bankruptcy.

A private prison company has sued Locke Liddell & Sapp for more than
$5 million, reports Mary Alice Robbins in the Legal Times today.

Two Nevada attorneys were disbarred after a finding of forgery and falsification of court records. One, Herman Herbig also avoided service of a judgment of more than $ 2 million in punitive damages along with compensatory damages of $ 810,000.

Zapkus & Angell PC is presenting a seminar on legal malpractice defense in Denver. Information at 303-894-8948

Attorney Robert Larson brought a medical malpractice action for his client. He started it in Madison county, IL. It was then removed to US District Court. There it was dismissed, without prejudice for lack of jurisdiction.

Attorney Michael C. Donovan thought up a new legal strategy. He wrote and sponsored a local ordinance requiring insurers to pay for cleanup of perchloroethylene in the city's groundwater.

Continuing a trend, attorneys not retained by plaintiffs are being sued. Once a mere exception to the general rule of "privity", more attorneys are being sued for their opinion letters.

Plaintiff sues defendant law firm over securities trading advice. During discovery, defendant DLA Piper Rudnick Gray Cary http://www.dlapiper.com may seek information from LeBoeuf, Lamb, Greene & MacRae http://www.ligm.com and Seward & Kissel http://www.sewkis.com. What is different and interesting about this decision

Anthony Lin in The New York Law Journal http://www.nylj.com reports that SDNY Judge Gerard Lynch has permitted a lawsuit by JPMorgan Credit and a syndicate of banks to proceed.

The New York law firm Fox Horan & Camirini http://www.foxhoran.com has been found liable for mishandling an arbitration in which $10 million was awarded against their client.

In New York, the rule generally is that "privity" is necessary. That is, you may sue only your own attorney. There are exceptions, however.

Who's responsible for the investigator's bill, or the process server's or the court reporter's bill, client or client and attorney?

A question often arises in professional and attorney malpractice cases when the plaintiff has settled the underlying case, rather than just lost it. Can the plaintiff settle yet sue afterwards ?>

An attorney malpractice action arising from a real estate transaction has been dismissed, and plaintiff's attorney sanctioned for frivolity

The doctrine of Strategic choice is a high hurdle for the attorney malpractice plaintiff. Courts often determine that "mere differences of opinion concerning strategy do not rise to the level of discharge for cause" or in other words, malpractice.

Michael Bolton http://www.michaelbolton.com has sued Weil Gotshal & Manges http://www.weil.com over whether it was conflicted

The West Virginia State Bar Association http://www.wvbar.org reports that it has passed a bylaw requiring all attorneys in W.Va to disclose whether they have professional liability insurance.

Mama's Food Shop wanted to expand its eatery to add a sidewalk cafe. It was not permitted by the Department of Buildings. They sued various parties, and their attorney, on the theory

The Second circuit has asked the Court of Appeals to answer a question concerning the Lynrd Skynyrd band http://www.skynyrd.com

The fifth group arises from the failure to proffer necessary documents. The opponent to a summary judgment motion must offer admissible proof that a question of fact exists. The opponent of a threshold motion must offer the affidavit of a physician setting forth objective proofs of the injury. The proponent of a motion to restore a case marked off must offer an affidavit of merits. A motion to vacate a dismissal must contain an affidavit of merits. A motion to vacate a default requires both a reasonable excuse for the default along with an affidavit stating a meritorious cause of action or defense. The simple failure to append these documents may constitute malpractice.

There is a hierarchy of attorney malpractice mistakes, recognizable by even a layperson. At the head of the list is the failure to start an action, whether a result of failure to file a notice of claim under the General Municipal Law, The Public Authorities Law, the Court of Claims act, or other claim-notice acts. That failure may be a result of failing to file the summons and complaint, or failing to purchase a new index number for the complaint. This group of "failing to file" the case is easily recognizable to the lay juror.

The most common causes of attorney malpractice litigation:

1.Poor communication with the client
Always at the base of a professional malpractice lawsuit
2.Statute of Limitations problems
3.Suing a client over the bill.
Often precipitates a malpractice lawsuit
4.Notice of Claim problems
Includes municipal, agency, Court of Claims, private notice requirements, and other condition precedent situations
5.Calendar control problems
Marking off calendar, non-appearance at conferences, defaults, abandonment of motions
6.Failure to supply necessary documents
Affidavit of merits, Admissible evidence affidavit for Summary Judgment, Doctor's affidavit for threshold cases, affidavit of a reasonable excuse and a meritorious cause of action;
7.Discovery Failures
Preclusion, dismissal for willful, contumacious behavior, failure to get necessary information for use at trial, failure to serve expert responses
8.Conflicts of interest
Matrimonial, commercial situations
9.Escrow and fee violations
Non-refundable fees, holding back escrows, failure to remit
10.Settlements and Stipulations without authority
Attorney's agreement will bind client even against client's wishes

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."

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."