New York Attorney Malpractice Blog

New York Attorney Malpractice Blog

Category Archives: Legal Malpractice Basics

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Some Basics on Fees and Judiciary Law 475

Posted in Legal Malpractice Basics
We go on and on about Judiciary Law 487, but today’s post is about a different statute, Judiciary Law 475, which regulates attorney fees.  Here are some basics: There has to be a settlement in open court and no signed writing reflecting that the client authorized the purported settlement.  Hence, no lien. Baker v Restaurant… Continue Reading

Accountants and Intra-Family War

Posted in Legal Malpractice Basics
The family is large, and the husband has been married at least twice.  There are adult children from the first marriage, and the husband has significant sums of money.  What is this?  It is a recipe for internecine war;  of course, it is over money.   Did Dad fraudulently and wrongfully give the adult kids… Continue Reading

Breach of Fiduciary Duty, Corporations and Shareholders

Posted in Legal Malpractice Basics
Yesterday, we spoke about commercial litigation, intra-company claims and how minority shareholders can bring claims that attorneys for the corporation or the majority shareholders have wronged them.  Yesterday, it was “legal malpractice.”  Today it’s “breach of fiduciary duty.” Exeter Law Group LLP v Wong  2016 NY Slip Op 32425(U)  December 9, 2016 Supreme Court, New York County Docket… Continue Reading

Their Statute or Ours…It’s Too Late

Posted in Legal Malpractice Basics
Centre Lane Partners, LLC v Skadden, Arps, Slate, Meagher & Flom Llp  2016 NY Slip   Op 32136(U)  October 21, 2016  Supreme Court, New York County  Docket Number: 651721/16 Judge: Barry Ostrager  explains the borrowing statute in the dismissal of this legal malpractice case which took place in Oregon. “The underlying facts are as follows. For many… Continue Reading

Parse the Facts As You Wish…The Statute is Running!

Posted in Legal Malpractice Basics
Gerschel v Christensen  2016 NY Slip Op 06794  Decided on October 18, 2016  Appellate Division, First Department brings up the inexplicable question of why plaintiffs wait so long to bring an action.  A trust dissolves, and plaintiffs don’t get their money.  They have either 3 or 6 years in which to sue.  However, nine years… Continue Reading

The Emotion of Attorney Fees

Posted in Legal Malpractice Basics
It is almost universally said at Legal Malpractice (or Professional Responsibility) CLEs that suing your clients for legal fees not paid is the surest source of a legal malpractice counterclaim.  Legal fee billing appears, anecdotally, to be the largest category of litigation involving attorneys. Exeter Law Group LLP v Immortalana Inc.  2016 NY Slip Op 31913(U)… Continue Reading

The Exercise of Ordinary Intelligence

Posted in Legal Malpractice Basics
The Appellate Division was shockingly clear in its enunciation of this standard, with which we were not familiar.  Plaintiffs created a unique investment strategy, and marketed it.  The IRS found fault, and assessed promoter penalty fines in excess of $7 Million.  Defendant law firm filed a bankruptcy petition, and the litigation started.  Unfortunately for Plaintiffs,… Continue Reading

The Difference Between Malpractice and Negligence

Posted in Legal Malpractice Basics
They’re the same, no?  Well, no.  Malpractice is the negligence of professionals, and simple negligence is the failure to use reasonable means.  However, Judge Mendez does a much better job of explaining in All Craft Fabricators, Inc. v Syska Hennessy Group, Inc.  2015 NY Slip Op 32239(U)  November 23, 2015  Supreme Court, New York County  Docket Number:… Continue Reading

A Small Case Bears Many Lessons

Posted in Legal Malpractice Basics
Sometimes short and concisely written opinions contain much information.  The basics of  Jefferson Apts., Inc. v Mauceri  2016 NY Slip Op 26230  Decided on July 25, 2016  Supreme Court, Queens County  Ritholtz, J. are simple.  An accounting firm is hired to oversee the basic accounting needs of a corporation.  Lots of money is missing.  It… Continue Reading

Escrow Agents, Attorneys and Breach of Fiduciary Duty

Posted in Legal Malpractice Basics
The conduct is not easily explainable.  A law firm is hired to become escrow agent for a real estate venture, and to earn fees while preparing and filing mortgages.  Inexplicably, the law firm simply stops filing the mortgages.  The result is predictable. TSR Group, LLC v Levitin  2016 NY Slip Op 31322(U)  July 13, 2016… Continue Reading

A Lot of Really Unhappy Clients Left Behind

Posted in Legal Malpractice Basics
Attorney licensed in NY and California forms a partnership with a non-attorney to represent home owners under water across the country.  Around 2011 the attorney goes to Hawaii to change his name from Sean Alan Rutledge to Alan Frank.  During this period of time his legal practice in California is unraveling. "Respondent’s disciplinary proceedings in… Continue Reading

Strong Suspicion But No Legal Malpractice

Posted in Legal Malpractice Basics
Wo Yee Hing Realty, Corp. v Stern  ;  2012 NY Slip Op 05792   Decided on July 31, 2012 Appellate Division, First Department   is an example of just how minutely the AD will examine an "underlying case" when deciding a case of legal malpractice.  Here, plaintiffs hired an attorney to do the closing on a commercial… Continue Reading

An Overly Generous Decision is Pruned Back, Plaintiff Still Loses in Legal Malpractice

Posted in Legal Malpractice Basics
Relentlessly applying analysis to the "but for" portion of a legal malpractice claim, the 2d Department modified a CPLR 3211 decision by Supreme Court.  Here, it reversed dismissal under CPLR 3211(a)(1) yet the case remains dismissed under CPLR 3211(a)(7) because the client could not pay the mortgage. in Cervini v Zanoni ;  2012 NY Slip… Continue Reading

Its a Digital World, but Uncertainty Remains

Posted in Legal Malpractice Basics
Today, litigants are able to access so much more than in the past.  When we started out, one read the NYLJ small print decisions from the AD, and there was no more modern way to get the news.  Later, digital reporting has taken over.  Yet, Supreme Courts do not regularly scan and publish decisions.  This… Continue Reading

A Divorce Legal Malpractice Case in the 4th Department

Posted in Legal Malpractice Basics
Malachowski v Daly ; 2011 NY Slip Op 06720 ; Decided on September 30, 2011 ; Appellate Division, Fourth Department  is a divorce legal malpractice case from Utica, and it demonstrates two things.  Plaintiff must, early on, set the tone and state the claims in bills of particular and during early discovery, and once having… Continue Reading

Retired Attorneys, Legal Malpractice and Professional Responsibility

Posted in Legal Malpractice Basics
Anthony E. Davis of Hinshaw & Culbertson LLPm is a well known practitioner in the Professional Responsibility field. He is the past president of the Association of Professional Responsibility Lawyers, a columnist in the New York Law Journal and an expert witness. He writes today on the question of retired attorneys in New York who… Continue Reading

60 Day Motion Rule

Posted in Legal Malpractice Basics
OCA issued this rule over the new years vacation, but no one should miss the significance of movant’s obligation to comply. New York Civil Law Blog reports it, and includes an OCA press release. It is also mentioned in Sui Generis… Continue Reading

Unexpected Circumstances

Posted in Legal Malpractice Basics
In a recent successful case, plaintiff was a large real estate management company. Plaintiff was involved in a 500 million dollar financing involving 3 NYC downtown buildings. The general counsel asked one of the multiple large firms whether “mortgage spreading” could be used to avoid payment of new mortgage tax. When told “no”, the financing… Continue Reading

Charging and Retaining Liens

Posted in Legal Malpractice Basics
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… Continue Reading
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