Hindsight reasoning, roundly disliked by the judiciary is at the heart of legal malpractice.  Legal malpractice always comes down to a backwards comparison of the hypothetical better outcome v. the actual outcome.  This is the essence of the “but for” question.  Would there have been a better economic outcome “but for” the mistakes (or acts) of the attorneys?  Was this a mistake or a reasonable trial strategy?  In the end it all comes down to “reasonable doubt” (a criminal law standard of proof).  We see this in Brookwood Cos., Inc. v Alston & Bird LLP  2017 NY Slip Op 00535  Decided on January 26, 2017  Appellate Division, First Department.

“A focal point of this appeal is Brookwood’s claim that A & B, in the patent action, negligently litigated defenses that were available to Brookwood pursuant to 28 USC § 1498. 28 USC § 1498 provides that when a patent is infringed for the benefit of the United States government, the patent holder’s remedy is against the United States in the United States Court of Federal Claims. Brookwood alleges that had A & B not been negligent, the motions that A & B eventually brought based on 28 USC § 1498 would have been granted and Brookwood would have avoided the approximately $10 million it expended on defending itself at trial and on appeal. Important in this analysis is the fact that Brookwood ultimately prevailed in the underlying patent action, achieving a judgment of noninfringement. The theory of Brookwood’s malpractice case is not that but for A & B’s negligence it would have prevailed in the patent action; rather Brookwood’s claim is that but for the manner in which A & B interposed the defenses available to Brookwood under 28 USC § 1498, Brookwood would have prevailed without incurring the additional legal fees it expended. In other words, but for A & B’s negligence, Brookwood could have achieved the same result more expeditiously and economically. The Supreme Court granted A & B’s motion and dismissed the complaint in its entirety, holding, among other things, that the allegations did not support a finding of attorney negligence or of proximate cause. We now affirm.”

“Decisions regarding the evidentiary support for a motion or the legal theory of a case are commonly strategic decisions and a client’s disagreement with its attorney’s strategy does not support a malpractice claim, even if the strategy had its flaws. “[A]n attorney is not held to the rule of infallibility and is not liable for an honest mistake of judgment where the proper course is [*4]open to reasonable doubt” (Bernstein v Oppenheim & Co., 160 AD2d 428, 430 [1st Dept 1990]). Moreover, an attorney’s selection of one among several reasonable courses of action does not constitute malpractice (see Rosner v Paley, 65 NY2d 736, 738 [1985]; Rodriguez v Lipsig, Shapey, Manus & Moverman, P.C., 81 AD3d 551, 552 [1st Dept 2011]). Brookwood has not alleged facts supporting its claim that A & B’s evidentiary decision, to rely on Nextec’s expert, rather than compromise the merits of Brookwood’s position on other arguments, was an unreasonable course of action.”

Just as in the N.Y. Workers’ Compensation Board v. Wang case, so Accredited Aides Plus, Inc. v Program Risk Mgt., Inc. 2017 NY Slip Op 00058 Decided on January 5, 2017 Appellate Division, Third Department Garry, J.P., J. deals with groups that have failed to make sure that their Workers’ Compensation programs actually follow generally accepted accounting and insurance procedures, and have gone belly-up.  As to the attorney: “The cause of action for common-law indemnification against Hodes as counsel was properly dismissed because plaintiffs failed to allege that Hodes violated a shared duty to ensure the trust’s solvency; instead, the complaint alleged that Hodes owed and breached duties to the trust to provide various professional legal services (see State of N.Y. Workers’ Compensation Bd. [*8]v Madden, 119 AD3d at 1024; see also Lovino, Inc. v Lavallee Law Offs., 96 AD3d 909, 909-910 [2012]; Jakobleff v Cerrato, Sweeney & Cohn, 97 AD2d 786, 786 [1983]). Further, the causes of action against Hodes for fraud, fraud in the inducement and negligent misrepresentation, unlike the similar claims against the PRM defendants, impermissibly intermingle derivative claims that allege harm to the trust’s management and financial condition. These claims against Hodes are almost wholly addressed to harm caused to the trust by Hodes’ alleged improper selection of trustees, knowledge of improper use of member premiums, failure to monitor the trust’s affairs and other alleged acts and omissions. While a direct allegation is included that Hodes induced plaintiffs to join the trust by, among other things, providing false and misleading information about the trust’s resulting financial condition, this claim is “inextricably embedded in the derivative claim[s]” against the trust (Serino v Lipper, 123 AD3d at 41; compare Craven v Rigas, 85 AD3d 1524, 1527 [2011], appeal dismissed 17 NY3d 932 [2011])^[FN3]. Accordingly, these claims were properly dismissed.”

Brookwood Cos., Inc. v Alston & Bird LLP   2017 NY Slip Op 00535 Decided on January 26, 2017 Appellate Division, First Department teaches us a number of lessons. Contracting for the government can be big business, and can lead to expensive litigation.  Reliance on specific US statutes can resolve a case, but over-reliance may be rejected by the Courts.  A Judiciary Law § 487 Claim will be rejected unless it is overwhelming.

“In support of its Judiciary Law § 487(1) claim, Brookwood alleges that A & B was deceitful by inducing Brookwood to retain it as its litigation counsel. Brookwood claims such deceit was perpetuated a number of ways. One way was by A & B failing to disclose that the Nextec-related patent noninfringement opinions A & B had prepared could not be used in the patent action to defend Brookwood against claims that it had acted willfully. Brookwood maintains that the reason A & B did not use them was that it would have resulted in the waiver of the attorney-client privilege. Brookwood also claims that the reason A & B litigated the patent action in the manner it did was to ensure that the case would continue, essentially “churning” the case for A & B’s own pecuniary gain. The motion court properly dismissed the Judiciary Law§ 487 claim because there are insufficient facts from which to conclude that A & B intentionally deceived Brookwood, or that A & B otherwise acted so egregiously that Judiciary Law § 487 was violated (Agostini v Sobol, 304 AD2d 395, 396 [1st Dept 2003]; Kaminsky v Herrick, Feinstein LLP, 59 AD3d 1, 13 [1st Dept 2008], lv denied 12 NY3d 715 [2009]). Brookwood’s arguments that A & B could not use its noninfringement opinions in the patent litigation because it would have waived the attorney-client privilege is incorrect as a matter of law. In re Seagate Tech., LLC (497 F3d 1360, 1374 [Fed Cir 2007], cert denied 552 US 1230 [2008])^[FN3] held that the assertion of an advice of counsel defense in a patent infringement action does not automatically constitute a waiver of the attorney-client privilege. We recognize that the opinion of counsel “may be relevant to the issue of willful infringement, for timely consultation with counsel may be evidence that an infringer did not engage in objectively reckless behavior” (Aspex Eyewear, Inc. v Clariti Eyewear, Inc., 605 F 3d 1305, 1313 [Fed Cir 2010]). Even if the issue of attorney-client [*5]waiver was open to dispute, it had no bearing in the patent action because willfulness was never reached. Thus, the facts alleged do not support a finding of an intent to deceive or a chronic and extreme pattern of legal delinquency causing damages to Brookwood (Wailes v Tel Networks USA, LLC, 116 AD3d 625, 625-626 [1st Dept 2014]).”

We continue the year 2016 survey of Judiciary Law § 487 cases.  Be sure to see Prof. Anita Bernstein’s article in today’s NYLJ on vicarious liability and JL § 487.

18.  TSR Group, LLC v Levitin 2016 NY Slip Op 31322(U) July 13, 2016 Supreme Court, New York County Docket Number: 651356/2015 Judge: Eileen A. Rakower    JL § 487 is dismissed without any discussion in this escrow-real estate-failure to file mortgages case.

19. Lewis, Brisbois, Bisgaard & Smith, LLP v Law Firm of Howard Mann  2016 NY Slip Op 05487 [141 AD3d 574]  July 13, 2016  Appellate Division, Second Department   “The ninth counterclaim and the fourth cause of action in the third-party complaint, alleging a violation of Judiciary Law § 487, stated cognizable claims and, thus, the Supreme Court did not err in declining to direct that they be dismissed pursuant to CPLR 3211 (a) (7) (see Palmieri v Biggiani, 108 AD3d 604 [2013]; Sabalza v Salgado, 85 AD3d 436 [2011]; Izko Sportswear Co., Inc. v Flaum, 25 AD3d 534 [2006]; cf. Schiller v Bender, Burrows & Rosenthal, LLP, 116 AD3d 756 [2014]). For the same reason, the court also properly denied dismissal of the seventh counterclaim and the second cause of action in the third-party complaint, which alleged that the plaintiff and the third-party defendants improperly withheld portions of the defendants’ litigation file in the underlying action (see Matter of Sage Realty Corp. v Proskauer Rose Goetz & Mendelsohn, 91 NY2d 30 [1997]).”

20.  Kaplan v Valley Natl. Bank  2016 NY Slip Op 51108(U) [52 Misc 3d 1210(A)]  Decided on July 20, 2016  Supreme Court, Suffolk County  Emerson, J.  “The plaintiff’s theory of the case is as follows: Marilyn’s will created two trusts, i.e, the Family Part Sum Trust, consisting of cash and securities worth approximately $250,00, and the House Trust, consisting of the marital home in Jericho, New York, worth approximately $325,000. Upon Marilyn’s death, title to the marital home passed to the House Trust, and Donald was granted a life-estate in the home. Marilyn’s will directed that the Family Part Sum Trust be used for Donald’s benefit. By the time of Donald and Elaine’s wedding in 2005, there was no principal remaining in the Family Part Sum Trust. In mid-2008, Martin Bodian approached the plaintiff about taking out a reverse mortgage on the Altessa property in order to obtain cash for Donald from the House Trust. The plaintiff contends that, when he rejected Bodian’s plan, the Bodian defendants began a campaign on Donald’s behalf to siphon equity from the Altessa property for Donald’s personal use, culminating in the undisclosed sale of the property and diversion of the proceeds of the sale to Bank of America (to pay off the mortgage) and to the Valley National account. That account was opened by Donald and Daniel as the “Family Part Sum Trust under Will of Marilyn Kaplan” without naming the plaintiff as either a trustee or a beneficiary, putting the proceeds of the sale of the Altessa property beyond the reach of the House Trust. The plaintiff seeks to recover an additional $203,702.33 from the sale, which he calculates as follows: $844,404.67 for the trust’s two-thirds share of the proceeds of the sale of the Altessa property, half of which is $422,202.33, minus the $218,500 that he received.”

“Absent a showing of fraud or collusion or of a malicious or tortious act, an attorney is not liable to third parties for purported injuries caused by services performed on behalf of a client or advice offered to that client (Four Finger Art Factory, Inc. v Dinicola, US Dist Ct, SDNY, Jan. 9, 2001, Koeltl, J. [2001 WL 21248] at *7 [and cases cited therein]). Liberally construing the complaint, accepting the alleged facts as true, and giving the plaintiff the benefit of every possible favorable inference (Leon v Martinez, 84 NY2d 83, 87-88), the court finds that the plaintiff’s allegations do not support an inference that the Bodian defendants acted in bad faith, committed fraud, or acted in an otherwise tortious or malicious way. The plaintiff’s allegations that the Bodian defendants colluded with Donald and Daniel to divert the proceeds of the sale of the Altessa property are conclusory and unsupported by the evidence. The record does not support an inference that the Bodian defendants acted other than in their capacity as attorneys for the trust and the Britvan estate. As previously discussed, Donald and Daniel, as two of the three trustees, had the power act on behalf of the trust and to sell its two-thirds share of the Altessa property. Moreover, the documentary evidence reflects that the proceeds of the sale were used to pay the expenses of the sale, the mortgage on the property, and the Britvan estate. The remaining funds were deposited into the Valley National trust account. There is no evidence in the record to suggest that the Bodian defendants retained any of the proceeds of the sale. When, as here, an attorney acts within the scope of an agency relationship and is not motivated by personal gain, the attorney is not liable to third parties (Four Finger Art Factory, supra, citing Kartiganer Assoc. v Town of New Windsor, 108 AD2d 898; see also Pancake v Franzoni, 149 AD2d 575). Accordingly, the eighth cause of action for malpractice is dismissed.

In view of the foregoing, the plaintiff’s remaining claims against the Bodian defendants, which arise from the same facts and allege the same damages, are also dismissed. Accordingly, the ninth cause of action is dismissed, and the fourth through seventh causes of action are dismissed insofar as they are asserted against the Bodian defendants.”

Our survey of all the 2016 Judiciary Law cases continues with:

15.  M.T. Packaging, Inc. v Fung Kai Hoo    2016 NY Slip Op 31189(U)  June 23, 2016
Supreme Court, New York County  Docket Number: 652579/2014  Judge: Cynthia S. Kern  A contract case concerning bags and packaging sales was based on a claim that the bags had levels of lead and chromium that exceeded legal limits, despite provision of certificates attesting to their safety.  Plaintiff was allowed to bring in an attorney from a related case: “In the present case, the portion of M.T.’s motion for leave to amend its complaint to add a cause of action for the violation of Judiciary Law § 487(1) against Maidenbaum is granted as defendants have shown that no prejudice or surprise would result from the proposed amendment and that the proposed amendment is not palpably insufficient or clearly .devoid of merit. M. T. ‘s cause of action for the violation of Judiciary Law § 487(1) is not palpably insufficient or clearly devoid of merit as it alleges in its proposed amended complaint that Maidenbaum engaged in deceitful conduct in violation of Judiciary Law§ 487(1) by withholding documents, including I documents that allegedly controverted its client’s claims, during discovery in the related action and submitting penurious affidavits wherein Hoo stated that he was only .in New York to attend the deposition in the instant action. Taking M.T.’s allegations as true for the purpose of deciding the instant motion, M.T. has stated a cause of action for the violation of Judiciary Law§ 487(1). ”

16.  Charles Deng Acupuncture, P.C. v Titan Ins. Co.  2016 NY Slip Op 26211 [53 Misc 3d 216]  June 30, 2016  Montelione, J.  This case mentions JL § 487, but only in a passing reference which says that attorneys are subject to penalties if they lie.

17. Stock v Schnader Harrison Segal & Lewis LLP  2016 NY Slip Op 05247 [142 AD3d 210]  June 30, 2016  Friedman, J.  Appellate Division, First Department   “The primary issue on this appeal is whether attorneys who have sought the advice of their law firm’s in-house general counsel on their ethical obligations in representing a firm client may successfully invoke attorney-client privilege to resist the client’s demand for the disclosure of communications seeking or giving such advice. We hold that such communications are not subject to disclosure to the client under the fiduciary exception to the attorney-client privilege (recognized in Hoopes v Carota, 142 AD2d 906 [3d Dept 1988], affd 74 NY2d 716 [1989]) because, for purposes of the in-firm consultation on the ethical issue, the attorneys seeking the general counsel’s advice, as well as the firm itself, were the general counsel’s “ ’real clients’ ” (United States v Jicarilla Apache Nation, 564 US 162, 172 [2011] [Apache Nation], quoting Riggs Natl. Bank of Washington, D.C. v Zimmer, 355 A2d 709, 711-712 [Del Ch 1976]). Further, we decline to adopt the “current client exception,” under which a number of courts of other jurisdictions (see e.g. Bank Brussels Lambert v Credit Lyonnais [Suisse], 220 F Supp 2d 283 [SD NY 2002]) have held a former client entitled to disclosure by a law firm of any in-firm communications relating to the client that took place while the firm was representing{**142 AD3d at 213} that client. Because we also find unavailing the former client’s remaining arguments for compelling the law firm and one of its attorneys to disclose the in-firm attorney-client communications in question, we reverse the order appealed from and deny the motion to compel.”  There is a passing reference to a claim of JL 487 for “attempting to cover up the malpractice .”  Nothing more is said of the statute.

State of N.Y. Workers’ Compensation Bd. v Wang  2017 NY Slip Op 00057  Decided on January 5, 2017  Appellate Division, Third Department  Egan Jr., J., is the story of a trust gone bad.  “The Health Care Providers Self-Insurance Trust, a group self-insured trust, was formed in 1992 to provide mandated workers’ compensation coverage to employees of the trust’s members (see Workers’ Compensation Law § 50 [3-a]; 12 NYCRR 317.2 [i]; 317.3). The trust contracted with defendant Program Risk Management, Inc. (hereinafter PRM) to serve as its program administrator, which, in turn, employed defendants Thomas Arney, Colleen Bardascini, John M. Conroy, Gail Farrell and Edward Sorenson (hereinafter collectively referred to as the PRM individual defendants). Additionally, the trust contracted with defendant PRM Claims Services, Inc. (hereinafter PRMCS) to serve as its claims administrator (see 12 NYCRR 317.2 [d]). Arney and defendants Judy Balaban-Krause, Robert Callaghan, Nelson Carpentar, Laura Donaldson, Ronald Field, Thomas Gosdeck, Joel Hodes, Albert Johansmeyer ^[FN1] and Michael Reda (hereinafter collectively referred to as the trustee defendants), among others, served as trustees.”

“In 2009, plaintiff determined that the trust was insolvent and assumed the administration thereof (see 12 NYCRR 317.20). Thereafter, plaintiff obtained a forensic audit, which allegedly revealed that the trust had an accumulated deficit of over $188 million. On July 8, 2011, plaintiff commenced this action, later amended in January 2012, in its capacity as the governmental entity charged with the administration of the Workers’ Compensation Law and attendant regulations, and as successor in interest to the trust. Plaintiff alleged 32 causes of action against certain defendants sounding in, among other things, breach of contract, breach of good faith and fair dealing, breach of fiduciary duty, fraud, fraud in the inducement, negligent misrepresentation, [*2]gross negligence, alter ego liability and indemnification ^[FN3]. The complaint asserts that, as a result of defendants’ failures and wrongdoings, plaintiff has incurred liability for, among other things, “certain [t]rust [m]embers’ assessments,” “significant additional administrative expenses of the [t]rust” and “the amount of the total deficit of the [t]rust.”

“Beginning with plaintiff’s first cause of action for breach of contract, as well as its second and third causes of action for breach of good faith and fair dealing, we agree with Supreme Court that such claims are time-barred by the applicable six-year statute of limitations to the extent that the alleged breaches occurred before July 8, 2005 (see CPLR 203 [a]; 213 [2]; see also Town of Oyster Bay v Lizza Indus., Inc., 22 NY3d 1024, 1030 [2013]; Kosowsky v Willard Mtn., Inc., 90 AD3d 1127, 1131 [2011]; Liberman v Worden, 268 AD2d 337, 339 [2000]). Turning to plaintiff’s fourth and fifth causes of action for breach of fiduciary duty, each [*4]is subject to a three-year statute of limitations as “the remedy sought is purely monetary in nature and it cannot be said that an allegation of fraud is essential to [these] claim[s]” (Weight v Day, 134 AD3d 806, 808 [2015]; see CPLR 214 [4]; see generally IDT Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d 132, 139 [2009]; compare New York State Workers’ Compensation Bd. v Consolidated Risk Servs., Inc., 125 AD3d 1250, 1253-1254 [2015]). Furthermore, the statute of limitations for breach of fiduciary duty claims begins to run on the date that the fiduciary’s relationship with or administration of a trust ceases (see Tydings v Greenfield, Stein & Senior, LLP, 11 NY3d 195, 201 [2008]; Matter of Therm, Inc., 132 AD3d 1137, 1138 [2015]; New York State Workers’ Compensation Bd. v Consolidated Risk Servs., Inc., 125 AD3d at 1253).”

“To prevail on a claim for aiding and abetting a breach of fiduciary duty, the cause of action must allege “(1) a breach by a fiduciary of obligations to another, (2) that the defendant knowingly induced or participated in the breach, and (3) that the plaintiff suffered damage as a result of the breach” (Kaufman v Cohen, 307 AD2d 113, 125 [2003]; see Torrance Constr., Inc. v Jaques, 127 AD3d 1261, 1264 [2015]). “A defendant knowingly participates in the breach of fiduciary duty when he or she provides substantial assistance to the fiduciary, which occurs when a defendant affirmatively assists, helps conceal or fails to act when required to do so, thereby enabling the breach to occur” (Schroeder v Pinterest Inc., 133 AD3d 12, 25 [2015] [internal quotation marks and citation omitted]; see Monaghan v Ford Motor Co., 71 AD3d 848, 850 [2010]).”

We started the discussion of attorney-client privilege on Friday.  In this case, plaintiff  loaned money to corporation, and eventually, the corporation stops paying it back.  From there, the UCC-1, Security Agreements and Transfers are simply too complicated for a blog entry such as this.  Suffice it to say, there are multiple law firms, making multiple claims against the parties and eachother, and a huge question of attorney-client privilege.  Justice O’Neill Levy sorts it all out in a primer on attorney -client privilege in Priestley v Panmedix Inc. 2017 NY Slip Op 30054(U)  January 12, 2017 Supreme Court, New York County, Docket Number: 114874/10.  Today we examine the crime-fraud exception to attorney-client privilege.

“Crime Fraud Exception

“A party may not invoke the attorney-client privilege where ‘it involves client communications that may have been in furtherance of a fraudulent scheme, an alleged breach of fiduciary duty or an accusation of some other wrongful conduct.'” Art Capital Group LLC v Rose, 54 AD3d 27 6 I 277 (1st Dept 2008) I quoting Ulico Cas. Co. v Wilson, Elser, Mo-skowitz, Edelman & Dicker, 1 AD3d 223, 224 (1st Dept 2003). “A party seeking ‘to invoke the crime-fraud exception must demonstrate that there is a factual basis for a showing of probable cause to believe that a fraud or crime has been committed and that the communications in question were in furtherance of the fraud or crime.'” Matter of New York City Asbestos Litig., 109 AD3d 7, 10-11 · (lst Dept 2013), quoting United States v Jacobs, 117 F3d 82, 87 (2d Cir 1997) (other citations omitted). The crime-fraud exception also applies· to the attorney work product privilege. See Meyer v Kalanick, F Supp 3d, 2016 WL 3981369 , * 5 , * 6 n 5 , 2016 US Dist LEXIS 96583, *16, *22 n 5 (SD NY 2016) .