We’re continuing to discuss the Howard S. Davis article in the New York Law Journal on April 17, 2009.  How does the written attorney retainer agreement relate to an attorney malpractice case?  Is the attorney responsible for handling an appeal, a wrongful death proceeding in Surrogate’s Court, a supplemental trust?   Is a fee earned when…

A bankruptcy trustee "steps into the shoes of the debtor" and obtains certain benefits from this power.  In Kirschner v. Grant Thornton we see that there are limits to that power. As Mark Hamblett writes in today’s NYLJ: "Southern District Judge Gerard E. Lynch ruled Tuesday that the case brought by liquidation trustee…

In Arkansas Department of Human Services v. Ahlborn, 547 U.S. 268, 126 S. Ct. 1752,  it was "held that from a $550,000 negotiated settlement in a case arising from a car accident, the Arkansas Medicaid authority could recover only $35,581.47 (about one-sixth) of the $215,645.30 it had paid for treatment of Heidi Ahlborn’s injuries, because…

A recent case Carl v. Cohen, Supreme Court, New York County, Justice Edmead 2009 NY Slip OP 30806(U), April 15, 2009 illustrates two distinct principals. The first is privilege and at issue communications which we discussed on April 15.  The second principal  is relation-back and the statute of limitations.

The statute of limitations in…

One of the more interesting memes in legal malpractice is the inevitable turnabout that is played out by the target attorney.  Once the advocate for plaintiff, the target attorney immediately turns around to show the holes in, and deficiencies of plaintiff’s position.  The attorney, chameleonlike, turns into plaintiff’s earlier opponent; at least the target attorney…

A recent case Carl v. Cohen, Supreme Court, New York County, Justice Edmead 2009 NY Slip OP 30806(U), April 15, 2009 illustrates two distinct principals. The first is privilege and at issue communications.  The second principal, to be discussed on Friday, is relation-back and the statute of limitations.

Plaintiff in this case was an employee at…

A NYC fact pattern in legal malpractice:  Plaintiff, a MD wishes to buy a co-op for use as a physician’s office.  She finds a prior doctor’s office and hires attorney and engineering company to do the deal. Plaintiff buys the unit only to find out that the certificate of occupancy is for residential use…

This recent appellate case McCluskey v Gabor & Gabor,  2009 NY Slip Op 02757 Decided on April 7, 2009 Appellate Division, Second Department illustrates the difference between malpractice at the trial level and at the appellate level. 
 

At the trial level one must prove the usual :"a plaintiff must demonstrate that the attorney failed…