Attorney Liens and Legal Malpractice in NY

Liens in New York

A 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.

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Legal Malpractice and Termination of the Attorney

It is the general rule in the United States, and New York that the client, either for good cause or for no cause, may terminate an attorney's representation at any time. While the difference between "for cause" and "no cause" has been endlessly debated, a "for cause" termination may be based upon misconduct which does not rise to the level of attorney malpractice.

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More Legal Malpractice Mistakes

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.

The sixth group arises from less well-defined acts. Te failure to sue a specific individual, the failure to add certain claims to the complaint, the choice of witnesses, the choice of evidence to include on a motion or at trial, the failures of discovery, investigation, questions at deposition, the choice of expert, the offer of proof at the trial. Deviations from good and accepted standards in these areas can lead to malpractice, but they fall within the question of strategy. A reasonable choice of strategy, reasonable both objectively and subjectively will not be held to constitute negligenceThe seventh group arises from attorney's wrongful acts of self-interest and conflict of interest. Representation of both parties in a divorce is dangerous, and becoming a partner with a client in a business is not permitted.

At the bottom of the list, but sadly familiar to potential malpractice plaintiffs are failures to communicate with the client. The failure to communicate gives rise to more inquiries by former clients than almost any other reason.

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Hierarchy of Legal Malpractice mistakes

There is a hierarchy of legal 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 next group consists of failures consists of serving the wrong defendants, failing to obtain jurisdiction over the person, failing to serve an adequate complaint or filing a complaint after the statute of limitations has run. These failures too, are easily recognizable.

The third group arises from calendar control problems and failures to appear on status conferences, clerk's calls, pre-trial or pre-calendar conferences, and appearances in TAP or the Jury Coordinating Part.

The fourth group arises from other calendar control problems, not created by a failure to appear in court. A case marked off calendar by a party, must be restored within 1 year. A default judgment must be taken within one year. An order must be settled within 60 days or abandoned. A motion to renew or reargue must be made within 20 days, a motion to dismiss for lack of personal jurisdiction must be made within a short time period. A 90-day notice requires a response. A notice of appeal must be filed within 30 days. An appeal must be perfected within the department's time period.

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The Most common causes of Legal Malpractice

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

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