"The lawsuit was brought by 40-year-old Shawna Jimenez of Colorado Springs, who says she was injured in a car crash in 2004. She says she was pressured take a settlement of $25,000. El Paso County jurors acquitted Azar's firm and one of his attorneys of theft and false advertising but found them guilty of negligence and misrepresentation. Azar says he will appeal."

"While Texas lawyers aren't keen on having a rule that would require them to disclose whether they carry legal malpractice insurance, the public favors such a requirement, recent surveys conducted by the State Bar of Texas show.

In an early April telephone survey of 500 Texas residents, 70 percent of the respondents said lawyers should be required to inform potential clients whether the lawyers carry, or do not carry, professional liability insurance that could cover the costs of claims arising out of their law practice.

In contrast, only about 23 percent of the 6,160 attorneys who responded to the State Bar's online survey in February and 29 percent of the 500 attorneys contacted in a telephone survey in early April favored an insurance-disclosure rule. "

A 13-member task force appointed by State Bar President Gib Walton in the fall of 2007 is reviewing the survey results as well as data collected from other states that require lawyers to disclose their insurance status. David Beck, the task force's chairman, says he is hopeful the task force will vote on whether to recommend a disclosure rule during a May 21 meeting in Houston.

"MORGANTOWN - E-mails in state Supreme Court candidate Bob Bastress' West Virginia University College of Law account show he and others speculating on the race.

"As for the campaign, it has heated up," Bastress, a WVU law professor, wrote to a former colleague in a Feb. 8 e-mail. "The stuff on Spike (Chief Justice Maynard) has made it interesting, and the rumors are heavy (some from apparently knowledgeable sources) that a lot more is coming."

The exchange was with Emily Spieler, dean of the Northeastern University College of Law in Boston. She is a former WVU law professor. The subject line of the e-mail was "Dean search," and part of it was redacted by WVU.

The West Virginia Record had requested phone and fax records for Bastress since Nov. 1, and e-mail records since Nov. 1 of campaign-related correspondence.

The e-mails show that Bastress has talked to other WVU faculty members, students and others about helping on his campaign, had official campaign literature sent to his law school e-mail account, sought donations and communicated with the media about the election and discussed the campaign with current state Supreme Court Justice Larry Starcher. State law prohibits the use of public resources to run a political campaign.

Phone and fax records, according to WVU's FOIA reply, only are kept for long-distance calls and faxes. Bastress had no long-distance calls or faxes, according to WVU. Bastress also does not have a state-issued cell phone, WVU said.

"The feds have moved in, apparently," Bastress continued in his e-mail to Spieler. "I've also been informed another development is coming in the next week. We'll see. Spike could implode at any time, and he is certainly wounded enough already to have made a race of it. ...

"Responses are positive (which means next to nothing), but raising money continues to be a struggle."

Spieler replied asking about the other candidates.

"The other two candidates are Margaret Workman and Menis Ketchum," Bastress replied. "Menis, as you might recall, is a very successful trial lawyer in Huntington and will dump a lot of money into the campaign."

Spieler again replied.

"Bad news about Ketchum," she wrote. "Sorry."

Another exchange that was forwarded to Bastress was between filmmaker Wayne Ewing and Michael C. Farber, a Sutton attorney who currently is suspended for failure to pay dues and to disclose whether he carries malpractice insurance as well as an ethics violation. "

The difference flows logically from the question of damages. In malpractice there is a positive claim for damages, over and above fee considerations from the attorneys; in the question of termination for cause, there can be but a reduction of the fees paid, but no positive claim for damages. As one might expect, the burden of proof for malpractice requires much more than the burden of proof to decide between "good cause" and "no cause."

SUPREME COURT OF NEW YORK,
APPELLATE DIVISION, FIRST DEPARTMENT

2008 NY Slip Op 4141
May 1, 2008, Decided
May 1, 2008, Entered

Clients are often asked at an allocution, settling a matrimonial action whether they are satisfied with their attorney’s work. It is highly questionable whether they, at that time, knew whether the work is satisfactory or not, but the practice goes on.

Here is a legal malpractice case, arising from a matrimonial action which, at least in part, depends on this practice.

“While "[a] claim for legal malpractice is viable, despite settlement of the underlying action, if it is alleged that settlement of the action was effectively compelled by the mistakes of counsel" (Bernstein v Oppenheim & Co., 160 AD2d 428, 430, 554 N.Y.S.2d 487 [1990]), here, the complaint is contradicted by the evidentiary material submitted on the motion to dismiss (see Guggenheimer v Ginzburg, 43 NY2d 268, 275, 372 N.E.2d 17, 401 N.Y.S.2d 182 [1977]). Plaintiff testified that she did not wish to proceed with the trial of the matrimonial action, that she decided instead to enter into the stipulation of settlement because she wanted no further connection with her husband, that she understood that by settling the action before the completion of the trial she was foregoing the right to pursue [**2] the funds allegedly dissipated by him, and that she was satisfied with the services provided by her attorney.

We have considered plaintiff's remaining contentions and find them unavailing.

596 CA 07-02311

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT

2008 NY Slip Op 4167; 2008
May 2, 2008, Decided
May 2, 2008, Entered

When are attorneys treated the same as their clients? Here is an example of attorneys getting the benefit of the client’s release.

“Memorandum: Plaintiffs commenced this action seeking damages for breach of fiduciary duty and legal malpractice arising out of defendants' representation of plaintiffs and two other individuals and their respective limited liability companies in the formation of Aurora Healthcare LLC (Aurora). When Aurora terminated the employment of Joseph G. Hugar (plaintiff), defendants continued to represent Aurora and its remaining principals in negotiations with plaintiff to resolve his claims against Aurora and its two remaining principals and their respective limited [**2] liability companies. Plaintiff and his own limited liability company, plaintiff LKC, LLC, retained new counsel during the negotiations, and their claims were eventually resolved. Plaintiff then, on behalf of both plaintiffs, executed a settlement agreement that included a general release (Settlement Agreement). Defendants moved to dismiss the complaint pursuant to CPLR 3211 (a) (1), (5) and (7), contending that the action is barred by the covenants and general release in the Settlement Agreement. We conclude that Supreme Court properly granted the motion.

We agree with plaintiffs that the terms of the general release do not apply to defendants because they were not "Grantees and their respective successors and assigns," and those were the only parties encompassed by the general release. We conclude, however, that the complaint was properly dismissed because the action is barred by the covenant not to sue in the Settlement Agreement. Pursuant to that covenant, plaintiffs agreed not to institute any action at law or equity or to assert any claim against various entities relating to any "Company Matters." The term "various entities" includes "Company Affiliates," and the Settlement Agreement [**3] defines [*2] Company Affiliates as, inter alia, the parties to the agreement, as well as "all agents and employees thereof."

"Few plaintiffs have gone after companies' outside lawyers in backdating lawsuits. But a new derivative case against directors and officers at Brocade Communications Systems Inc. also targets the company's law firm, Wilson Sonsini Goodrich & Rosati. Filed April 18 in Northern District federal court by a small San Diego firm, Johnson Bottini, the suit accuses Wilson Sonsini of legal malpractice for allegedly blessing backdating at Brocade, a company that saw two of its former executives convicted of criminal charges.

In particular, the plaintiff alleges that the firm signed off on a part-time program for new Brocade hires that was really set up to grant stock options for the new employees at low points. The complaint also claims that Wilson Sonsini gave bad legal advice on a settlement proposal that didn't give enough to Brocade in another derivative case.

Although firm Chairman Larry Sonsini has been named in backdating suits in his role as a director, as in this case with Brocade, the firm hasn't (aside from a case brought by a pro se Rambus investor).

"The obvious reason that people don't sue them is because they're going to have a lot of cases with Wilson Sonsini in the future," said Francis Bottini Jr., the lead lawyer on the case. "But if there's a valid claim, it's our duty as lawyers to bring them for the company."

The defendant attorney's CPLR 3211 motion was converted to a CPLR 3212 motion.  Plaintiff demonstrated that the defendant attorney represented both husband and wife, and was therefore burdened by a conflict of interest.  The AD determined that the case must be tried.

"Citing 'Stoneridge,' Judge Releases Law Firm From Securities Suit

A federal judge in Philadelphia has dropped Clifford Chance from a securities class action, citing the U.S. Supreme Court's recent decision in Stoneridge Investment Partners v. Scientific-Atlantic Inc. The London-based Clifford Chance firm had been facing suit by shareholders of DVI Inc., a health care finance company the law firm had represented in the months leading up to its 2003 bankruptcy filing. The shareholders had accused the firm of participating in a scheme with DVI's executives to engage in sham transactions designed to conceal the company's true financial health. In its January decision in the closely watched Stoneridge case, the Supreme Court rejected such "scheme liability" claims against third parties because the alleged schemes generally did not result in public statements on which investors could claim reliance. Applying this reasoning to the DVI class action, Judge Legrome Davis of the U.S. District Court for the District of Pennsylvania said: "Though Lead Plaintiffs allege that Clifford Chance knew of the scheme, and at times took a more active part in assisting DVI in the scheme, the fact remains that none of this alleged conduct was publicly disclosed such that it affected the market for DVI's securities." Though he declined to certify a class against Clifford Chance, the judge did allow the case to proceed against other defendants, including Merrill Lynch and Deloitte. The case is one of the first to cite Stoneridge, and Clifford Chance's lawyer, William J. Schwartz of Cooley Godward Kronish, said Judge Davis' decision would satisfy law firms that "hoped there would be meaning in the Supreme Court's decision." Clifford Chance continues to face a suit by DVI's bankruptcy trustee."

2007-05158

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT

2008 NY Slip Op 3187
April 8, 2008, Decided

“In an action to recover damages for legal malpractice, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Kerins, J.), dated May 10, 2007, as granted the motion of the defendants Garguilo & Orzechowski, LLP, and Stanley E. Orzechowski to dismiss the complaint insofar as asserted against them pursuant to CPLR 3211(a)(5) as time-barred and that branch of the separate motion of the defendant Jerry Garguilo which was to dismiss the complaint insofar as asserted against him pursuant to CPLR 3211(a)(5) as time-barred.

In support of their respective motions pursuant to CPLR 3211(a)(5), each of the defendants demonstrated, prima facie, that the time in which to sue had expired and that the complaint was time-barred as against them (see McCoy v Feinman, 99 NY2d 295, 785 N.E.2d 714, 755 N.Y.S.2d 693; Sabadie v Burke, 47 AD3d 913, 849 N.Y.S.2d 440; Matter of Schwartz, 44 AD3d 779, 843 N.Y.S.2d 403; Savarese v Shatz, 273 AD2d 219, 708 N.Y.S.2d 642; CPLR 214[6]). However, in opposition, the plaintiff raised a triable issue of fact as to whether the statute of limitations was tolled by the [**3] continuous representation doctrine (see Town of Wallkill v Rosenstein, 40 AD3d 972, 837 N.Y.S.2d 212; Tropp v Lumer, 23 AD3d 550, 806 N.Y.S.2d 599; Savarese v Shatz, 273 AD2d 219, 708 N.Y.S.2d 642). Thus, the complaint should not have been dismissed as time-barred.”

“After settling with the executrix their objections to the probate of their father's will and trust, plaintiffs commenced this action against the attorneys for alleged fraudulent misrepresentation, fraudulent concealment, legal malpractice, breach of contract and for treble damages, in the preparation of those instruments. Not only does HN1 New York not recognize a right of action for tortious interference with prospective inheritance (see Vogt v Witmeyer, 87 NY2d 998, 665 N.E.2d 189, 642 N.Y.S.2d 619 [1996]), but having earlier settled their objections, plaintiffs may not now seek, in effect, to challenge indirectly the validity of the will and trust by suing these defendants with whom they had absolutely no privity.

Absent a contractual relationship between the professional and the party claiming injury, the potential for liability "is carefully circumscribed" (William Iselin & Co. v Mann Judd Landau, 71 NY2d 420, 425, 522 N.E.2d 21, 527 N.Y.S.2d 176 [1988]). [**2] A viable tort claim against a professional requires that the underlying relationship between the parties be one of contract or the bond between them so close as to be the functional equivalent of contractual privity (Ossining Union Free School Dist. v Anderson LaRocca Anderson, 73 NY2d 417, 539 N.E.2d 91, 541 N.Y.S.2d 335 [1989]). However, plaintiffs have not pleaded any facts setting forth the existence of a contractual relationship or the functional equivalent thereof between themselves and defendants. Moreover, they have no viable cause of action for treble [*2] damages under Judiciary Law § 487, since defendants' purported deceit did not occur during the course of a pending judicial proceeding (see Costalas v Amalfitano, 305 AD2d 202, 203-204, 760 N.Y.S.2d 422 [2003].”

John Randolph Hearst, Jr., appellant, v Barbara Hearst, et al., respondents. (Index No. 06-01959)
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
2008 NY Slip Op 3590; 2008 N.Y. App. Div. LEXIS 3495
April 22, 2008, Decided

“The Supreme Court also improperly dismissed the cause of action alleging legal malpractice insofar as asserted against the Ackerman defendants. A prima facie case of legal malpractice requires proof that the attorney failed to exercise the ordinary and reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the attorney's breach of that duty proximately caused the plaintiff to sustain actual and ascertainable [**10] damages (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442, 867 N.E.2d 385, 835 N.Y.S.2d 534; Bauza v Livington, 40 AD3d 791, 792-793, 836 N.Y.S.2d 645; Magnacoustics, Inc. v Ostrolenk, Faber, Gerb & Soffen, 303 AD2d 561, 562, 755 N.Y.S.2d 726). Here, the plaintiff alleges that Ackerman represented both Barbara and himself, and was thereby burdened by a conflict of interest, that Ackerman aided Barbara's misappropriation of his assets, and concealed these activities from him. Consequently, there are triable issues of fact with respect to the cause of action alleging legal malpractice (see Tabner v Drake, 9 AD3d 606, 610, 780 N.Y.S.2d 85), as well as the cause of action alleging the aiding and abetting of fraud, insofar as asserted against the Ackerman defendants.”

"Minnesota Lawyer has an interesting story this week about a local attorney who found himself being sued for malpractice in Kentucky by a woman who claimed that she was his client.  The woman was mulling filing a medical-malpractice suit against the decedent's health-care providers, and for reasons that are unclear contacted the Minnesota attorney. She filed out his retainer agreement and returned it, but the two had no further contact. The attorney officially declined the case in a letter sent several months later, shortly after the expiration of the applicable Kentucky statute of limitations on the estate's med-mal claim.

Minnesota Lawyer Blog's take on the case is puzzlement.  "In the meantime, you may want to be careful about whom you give a copy of your retainer agreement to ... "

A different take?  Attorney is retained to handle a medical malpractice case, and a written retainer is signed by the client.  Attorney holds onto the case until the statue of limitations has passed and then tells the client that he is not interested in the case.  Attorney may not have know of Kentucky's statute of limitations, but he has allowed the statute to pass.

From Wilmer Cutler Pickering Hale and Dorr LLP :

"The Southern District of California ordered the deposition of Plaintiff’s attorney after finding that he had information crucial to Defendant’s statute of limitations defense, and that the information could not be otherwise obtained. Pastrana v. Local 9509 Commc’ns Workers of Am., No. 06cv1779 W (AJB), 2007 U.S. Dist. LEXIS 73219 (S.D. Cal. Sept. 28, 2007).

Plaintiff brought suit against Local 9509 after he was fired from his job with AT&T, and the union declined to appeal his grievance to arbitration. Id. at *3. Local 9509 raised the six-month statute of limitations as a defense to Plaintiff’s claim that it had breached its duty of fair representation. Thus the date by which the union notified Plaintiff and his attorney that it would not appeal was significant. Id. at *3-4.

If Plaintiff had been given notice by the union prior to February 28, 2006, his claim, brought on September 1, would be untimely. Id. at *4. Defendant claimed that a union employee had informed Plaintiff and his attorney via several teleconferences in February 2006 that it would not pursue his grievance to arbitration; Plaintiff disputed this account and offered a Declaration of his counsel that these teleconferences had not occurred until March 2006. Id. at *4. Defendant filed a motion to compel the deposition of Plaintiff’s counsel on the grounds that he was the only person besides Plaintiff and a union employee to participate in those conversations. Id. at *4-5. Defendant also moved to compel the production of any notes Plaintiff’s attorney took during those conversations. Plaintiff opposed the motion and moved for a protective order on the grounds that the testimony and documents sought were protected by the attorney-client privilege and work product doctrine. Id."

YAMIRA SANTIELI, Plaintiff, v. LAWRENCE M. LAPINE, Defendant.
3:05cv1712(WWE)
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT
2008 U.S. Dist. LEXIS 28251
March 26, 2008, Decided

"To recover on a claim of legal malpractice, plaintiff must establish (1) the existence of an attorney-client relationship; (2) the attorney's wrongful act or omission; (3) causation; and (4) damages. Plaintiff must produce expert testimony that a breach of the professional standard of care has occurred, and that the breach was a proximate cause of the injuries suffered by the plaintiff. Dixon v. Bromson and Reiner, 95 Conn.App. 294, 297-98, 898 A.2d 193 (2006); Solomon v. Levett, 30 Conn.App. 125, 128, 618 A.2d 1389 (1993). In malpractice cases, expert testimony serves to assist lay people, such as members of the jury and [*4] the presiding judge, to understand the applicable standard of care and to evaluate the defendant's action in light of that standard. Vona v. Lerner, 72 Conn.App. 179, 187, 804 A.2d 1018 (2002).

Plaintiff makes no representation that she intends to disclose an expert witness and she has filed no motion to do so. Rather, she argues that this case falls within the exception to the expert witness requirement where there is "such an obvious and gross want of care or skill that the neglect is clear even to a layperson." Davis v. Margolis, 215 Conn. 408, 416 n. 6, 576 A.2d 489 (1990).

An expert may not be necessary when the legal malpractice involved a failure to follow rules of procedure, such as filing motions or attending hearings. See Dubreuil v. Witt, 80 Conn.App. 410, 422, 835 A.2d 477 (2003). However, the instant case does not involve an obvious and gross want of care that would be clear to a lay person. Here, assessment of whether defendant breached the standard of care requires expert testimony as to the division of marital assets and the advice provided by defendant. Accordingly, summary judgment is appropriate."

EDWARD H. ARNOLD, Plaintiff, -against- KPMG LLP, and SIDLEY AUSTIN BROWN & WOOD LLP, Defendants.

05 Civ. 7349 (PAC)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2008 U.S. Dist. LEXIS 25855
March 28, 2008, Decided
March 28, 2008, Filed
Plaintiff Edward H. Arnold ("Arnold") brings this action against Defendants KPMG ("KPMG"), an accounting firm, and Sidley Austin Brown & Wood ("Brown & Wood"), a law firm, for damages allegedly suffered when he bought tax shelters from KPMG with Brown & Wood's endorsement. The tax shelters, which were effectuated through the purchase and sale of securities, were designed to offset Arnold's income but were determined to be unlawful tax-avoidance schemes.

The Court held oral argument on the matter on March 6, 2008. [*3] (Transcript of Oral Argument, March 6, 2008 ("Tr.").) The Court ruled that: (1) Arnold's federal securities claims are time-barred by operation of the relevant statute of limitations (Tr. at 7-11); and (2) Arnold's numerous state law claims merge into single claims for professional malpractice against each defendant (Tr. at 11-12). In light of these holdings, the Court heard oral argument as to: (1) whether the Court should exercise supplemental jurisdiction over the state law malpractice claims in light of the dismissal of the federal claims, and (2) whether the state law malpractice claims are time-barred under the statute of limitations. The Court now exercises its supplemental jurisdiction over the state law malpractice claims and dismisses them as time-barred.

In this case, Defendants argue that the three-year statute of limitations accrued when the opinion letters were issued. Arnold contends that because the fraudulent scheme was continuous, the claim did not accrue against either Defendant until KPMG revealed its fraudulent conduct by entering into a deferred prosecution agreement with the Department of Justice in August 2005. In the alternative, Arnold argues that the statute of limitations was tolled.

The Court rejects the argument that the appropriate date of accrual was August 2005; the claim for malpractice accrued when each Defendant issued its opinion letter.