Evedentaily, defendants made a well-intentioned but insufficient motion for summary judgment.  In this wrongful eviction case, the landlord turned to its attorney and made a legal malpractice claim.  Defendants moved to dismiss, but in Morad Assoc., LLC v Jay Sung Lee 2013 NY Slip Op 08204 [112 AD3d 463] December 10, 2013 Appellate Division, First Department  they could not convince the AD that all damages flowed from the landlord and none from the attorney.

"The evidence submitted by defendant attorney, while showing that he may not be liable for a large measure of the damages assessed against plaintiff, failed to establish as a matter of law that his alleged negligence was not the cause of at least some of those damages. In addition to the damage to the property of plaintiff’s tenant, plaintiff was also assessed damages for wrongful eviction for which defendant may be held liable. We find no basis for holding defendant liable for any damages plaintiff incurred when its agents destroyed the tenant’s property. Concur—Tom, J.P., Friedman, Acosta and Moskowitz, JJ."

The typical triumvirate of claims in a legal malpractice setting is Legal Malpractice, Breach of Contract and Breach of Fiduciary Duty.  Defendants almost always move to dismiss the second and third claims on the basis that they duplicate the legal malpractice claim and must be dismissed as "duplicitive."

in Chowaiki & Co. Fine Art Ltd. v Lacher  2014 NY Slip Op 01992 [115 AD3d 600]  March 25, 2014
Appellate Division, First Department  we see the First Department noting that plaintiffs need not "elect their remedies."   As might be surmised, the two principals, duplication and election of remedies stand in stark contract to each other.

"In this action arising from defendant attorney and his law firm’s representation of plaintiffs in an action brought against them by a former employee, plaintiffs allege that they were excessively billed for services rendered, and that they were harassed, threatened and coerced into paying the excessive and overinflated fees. The motion court properly dismissed plaintiffs’ claim for breach of fiduciary duty as duplicative of the breach of contract claim, since the claims are premised upon the same facts and seek identical damages, return of the excessive fees paid (see CMMF, LLC v J.P. Morgan Inv. Mgt. Inc., 78 AD3d 562 [1st Dept 2010]; cf. Ulico Cas. Co. v Wilson, Elser, Moskowitz, Edelman & Dicker, 56 AD3d 1 [1st Dept 2008]). Although plaintiffs sufficiently allege an independent duty owed to them, arising from the attorney-client relationship, the fraud claim is similarly redundant of the breach of contract claim, since it also seeks the same damages (see Coppola v Applied Elec. Corp., 288 AD2d 41, 42 [1st Dept 2001]; Makastchian v Oxford Health Plans, 270 AD2d 25, 27 [1st Dept 2000]).

However, we find that, as a dispute exists as to the application of the retainer agreement as to defendant, plaintiffs need not elect their remedies and may pursue a quasi-contractual claim for unjust enrichment, as an alternative claim (see Wilmoth v Sandor, 259 AD2d 252, 254 [1st Dept 1999]).

Plaintiffs’ claims of excessive billing and related conduct, which actions are not alleged to have adversely affected their claims or defenses in the underlying action, do not state a claim for legal malpractice (see e.g. AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 434 [2007])."

Judiciary Law 487 is a ancient attorney deceit statute which says, in essence, that it is a violation (and a misdemeanor) for an attorney to engage in deceit.  The statute is subject to the requirement to prove proximate cause as well as ascertainable damages. 

in Mizuno v Nunberg  2014 NY Slip Op 07481  Decided on November 5, 2014  Appellate Division, Second Department  the AD affirmed Supreme Court’s dismissal of the case.

"In 1994, a nonparty bank commenced a mortgage foreclosure action against the plaintiff. The plaintiff thereafter filed several bankruptcy petitions in the United States Bankruptcy Court for the Eastern District of New York, which were ultimately unsuccessful in preventing the foreclosure sale of the plaintiff’s real property, which was conducted in 2002. The plaintiff then commenced a legal malpractice action (hereinafter the first legal malpractice action) against the attorney and the law firm who represented him in his third bankruptcy proceeding. The plaintiff prevailed in the first legal malpractice action, and was awarded the relief he sought in the complaint, entitling him to recover the value of the equity he lost in the real property as a consequence of the foreclosure sale, as well as the legal fees he incurred in securing that recovery (see Mizuno v Fischoff & Assoc., 82 AD3d 849).

In August 2011, the plaintiff commenced an action against Shari Barak, the attorney who represented the bank in the foreclosure proceedings, who testified at the nonjury trial of the first legal malpractice action, as well as the law firm in which Barak is a partner (hereinafter the second legal malpractice action). The plaintiff alleged that Barak and her law firm violated Judiciary Law § 487 and committed fraud and legal malpractice in filing an allegedly false and misleading notice of default and an affidavit of noncompliance in the third bankruptcy proceeding, and in giving false testimony in the first legal malpractice action as to the plaintiff’s default on mortgage payments. The defendants moved pursuant to CPLR 3211(a) to dismiss the complaint in the second legal malpractice action, and the Supreme Court granted the motion. We affirmed, determining, inter alia, that the plaintiff failed to state a cause of action (see Mizuno v Barak, 113 AD3d 825).

While the appeal in the second legal malpractice action was pending, the plaintiff commenced the instant action against Noah Nunberg, the attorney who represented the defendants in the first legal malpractice action, as well as Nunberg’s law firm (hereinafter together the defendants). The plaintiff alleged that the defendants likewise violated Judiciary Law § 487 and [*2]committed fraud and legal malpractice in allowing Barak to give what they knew was false testimony during the first legal malpractice action, thereby suborning perjury. The defendants moved pursuant to CPLR 3211(a) to dismiss the complaint, and requested that a letter from the Grievance Committee for the Tenth Judicial District to the plaintiff, dated June 21, 2012 (hereinafter the Grievance Committee letter), responding to a complaint made by the plaintiff, be removed from the court’s file. The Supreme Court granted the motion.

The plaintiff failed to state a cause of action against the defendants to recover damages for violation of Judiciary Law § 487, fraud, or legal malpractice. Accepting as true the facts alleged in the complaint, and according the plaintiff the benefit of every favorable inference (see Leon v Martinez, 84 NY2d 83, 87-88), he failed to " plead allegations from which damages attributable to the [defendants’ conduct] might be reasonably inferred’" (Mizuno v Barak, 113 AD3d at 827, quoting Rock City Sound, Inc. v Bashian & Farber, LLP, 74 AD3d 1168, 1171; see Markel Ins. Co. v American Guar. & Liab. Ins. Co., 111 AD3d 678; Regina v Marotta, 67 AD3d 766). As we determined in Mizuno v Barak, the plaintiff obtained the relief to which he was entitled in the first legal malpractice action, despite Barak’s alleged false testimony (see id. at 827). Moreover, the litigation costs associated with the first legal malpractice action cannot reasonably be attributed to any alleged false trial testimony given by Barak, or, by extension, by the defendants’ conduct as counsel to the plaintiff’s adversaries (see id.). Accordingly, the Supreme Court properly directed the dismissal of the complaint in the instant action."

We’ve noted that more legal malpractice cases seem to be dismissed on CPLR 3211 grounds than those in other fields of the law.  Endless Ocean, LLC v Twomey, Latham, Shea, Kelley, Dubin & Quartararo  2014 NY Slip Op 00087 [113 AD3d 587]  January 8, 2014  Appellate Division, Second Department looks like on of them. 

In this straightforward claim, plaintiffs retained attorneys to manage a 1031 Like-Kind exchange of real property, which would defer capital gain taxes.  One must arrange for an uninvolved 3d party to receive the sale proceeds and withhold them until a purchase of new property.  This did not happen.  Instead, Plaintiffs were drawn into an unrelated bankruptcy and lost significant amounts of money.

"The plaintiff commenced this action to recover damages allegedly sustained as a result of the defendants’ legal malpractice. As alleged in the complaint, the plaintiff retained the defendants to represent it in connection with the sale of certain real property and a related exchange of "like-kind property" pursuant to the Internal Revenue Code (see 26 USC § 1031). According to the allegations in the complaint, the plaintiff, based upon the defendants’ advice, selected LandAmerica 1031 Exchange Services, Inc. (hereinafter LandAmerica), as the qualified intermediary to hold a portion of the sale proceeds, totaling $5.5 million, for the exchange of like-kind property pursuant to 26 USC § 1031. The complaint alleged, inter alia, that the defendants negligently represented the plaintiff inasmuch as they reviewed, and advised the plaintiff to execute, an agreement with LandAmerica, under which the exchange funds were to be held in a commingled [*2]account and not a qualified escrow account or trust. Soon after the sale proceeds were transferred to LandAmerica, its parent corporation, LandAmerica Financial Group, Inc., declared bankruptcy. According to the complaint, the plaintiff’s funds were frozen for several years during the bankruptcy proceedings, and the plaintiff lost a portion of the funds because they were not held in a qualified escrow account or trust. The complaint further alleged that the plaintiff could not defer the taxes on the capital gains from the initial sale, as it did not have access to its funds to purchase a replacement property within the required 180-day period.

Prior to answering, the defendants moved to dismiss the complaint pursuant to CPLR 3211 (a) (1) based on documentary evidence, and pursuant to CPLR 3211 (a) (7) for failure to state a cause of action. The Supreme Court granted the defendants’ motion to dismiss the complaint on both grounds.

The Supreme Court improperly granted the defendants’ motion to dismiss the complaint based on documentary evidence. A motion to dismiss a complaint pursuant to CPLR 3211 (a) (1) may be granted only if the documentary evidence submitted by the moving party utterly refutes the factual allegations of the complaint, "conclusively establishing a defense as a matter of law" (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]). Here, the retainer agreement submitted by the defendants did not conclusively establish a defense as a matter of law (see Harris v Barbera, 96 AD3d 904, 905-906 [2012]; Rietschel v Maimonides Med. Ctr., 83 AD3d 810, 811 [2011]; Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 38-39 [2006])."

We’ve said that legal malpractice issues are ubiquitous, and omnipresent.  That’s just another way of saying that where there are lawyers, and where they practice their human crafts, there will be mistakes and shortcomings.  This was true before the Magna Carta and is true today. 

One example of the evolving nature of legal malpractice issues is the Internet. Predictable only in science fiction, the Internet has come to color every part of our lives.  Use of the Internet in the age-old practice of trial law has set new standards.  So reports Anthony E. Davis in the New York Law Journal.  While he discusses the ethical issue of how one might correctly research jurors now sitting at a trial, he raises the point that failure to investigate may be legal malpractice.

"Duty to Investigate
The first question to be addressed is whether lawyers are under any duty to conduct any investigation of jurors. City Bar 2012-2 looked at this in the second segment of the opinion, including the following observation:
Lawyers have even been chastised for not conducting such research on potential jurors. For example, in a recent Missouri case, a juror failed to disclose her prior litigation history in response to a voir dire question. After a verdict was rendered, plaintiff’s counsel investigated the juror’s civil litigation history using Missouri’s automated case record service and found that the juror had failed to disclose that she was previously a defendant in several debt collection cases and a personal injury action. (Footnote omitted). Although the court upheld plaintiff’s request for a new trial based on juror nondisclosure, the court noted that "in light of advances in technology allowing greater access to information that can inform a trial court about the past litigation history of venire members, it is appropriate to place a greater burden on the parties to bring such matters to the court’s attention at an earlier stage." Johnson v. McCullough, 306 S.W.3d 551, 558-59 (Mo. 2010). The court also stated that "litigants should endeavour to prevent retrials by completing an early investigation." Id. at 559.
Earlier, in the introduction to the opinion, the city bar went even further, stating that: "Indeed, standards of competence and diligence may require doing everything reasonably possible to learn about the jurors who will sit in judgment on a case."
Notably, ABA 466 is in agreement with this proposition. In footnote 3, ABA 466 cites to this statement in City Bar 2012-2 and to other sources, including Comment [8] to Model Rule 1.1, to the Johnson v. McCullough decision (supra), and to N. H. Bar Ass’n, Op. 2012-13/05, which, in common with Comment 8 to Model Rule 1.1, addresses attorneys’ obligation "to be aware of social media as a source of potentially useful information in litigation, to be competent to obtain that information directly or through an agent, and to know how to make effective use of that information in litigation."

Doctor is sued for medical malpractice, along with fellow doctor.  MLMIC, the largest insurer in the field settles the case for $ 3.2 Million.  Doctor’s liability is covered by the Carrier.  She sues the carrier and its attorney, Carter Conboy in Kaufman v Medical Liab. Mut. Ins. Co. 2014 NY Slip Op 07398  Decided on October 30, 2014  Appellate Division, Third Department.

Doctor sues because of a "united front" defense, in which one law firm defends all the doctors, and minimizes any "finger-pointing."  Doctor loses the legal malpractice case.

"Elements that plaintiff must prove in a legal malpractice action include that her attorney was negligent, she would have succeeded on the merits "but for" her attorney’s negligence and she sustained actual and ascertainable damages (see Dombrowski v Bulson, 19 NY3d 347, 350 [2012]; AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 434 [2007]; Country Club Partners, LLC v Goldman, 79 AD3d 1389, 1391 [2010]). On a motion for summary judgment, defendant has the initial burden of presenting evidence "establishing that plaintiff is unable to prove at least one of these elements" (Geraci v Munnelly, 85 AD3d 1361, 1362 [2011] [internal quotation marks and citation omitted]; see Guiles v Simser, 35 AD3d 1054, 1055 [2006]). "[I]f the movant is successful the opposing party must then submit proof in admissible form sufficient to create a question of fact requiring a trial" (Parmisani v Grasso, 218 AD2d 870, 871 [1995] [internal quotation marks and citation omitted]; see Country Club Partners, LLC v Goldman, 79 AD3d at 1391-1392). Supreme Court determined that defendant met its burden as to each of the elements of negligence, proximate cause and damages, and that plaintiff failed to submit sufficient proof to raise a triable issue as to all those elements.

Considering first the element of damages, the undisputed proof established that plaintiff did not have to pay any part of the verdict, which was covered in full by the insurer and hospital. Plaintiff’s contention that she sustained non-pecuniary damages, such as a taint on her reputation resulting from media and other coverage of the Norton verdict, is unavailing since "the established rule limit[s] recovery in legal malpractice actions to pecuniary damages" (Dombrowski v Bulson, 19 NY3d at 352; see Guiles v Simser, 35 AD3d at 1056; Wilson v City of New York, 294 AD2d 290, 292 [2002]). Plaintiff continued working at the hospital after the Norton verdict and, as her contract was coming to an end about a year later, plaintiff was offered a new contract. Indeed, Nguyen, who had been assigned more culpability than plaintiff, had her contract renewed. Although plaintiff did not like some of the changes in the terms of the new contract, those same terms were also made mandatory for other physicians and plaintiff was not singled out in such regard because of the Norton verdict. Defendant produced proof that plaintiff took the position during contract negotiations that she desired to significantly scale back or eliminate the obstetrics part of her practice at the hospital, a move that was opposed by the hospital’s other physicians. Plaintiff eventually elected to resign from the hospital rather than renew her contract. Her arguments that her difficulty in obtaining employment with comparable compensation and that subsequent potential increases in her malpractice premiums resulted directly from the Norton verdict are speculative and unsupported in this record (see generally Brodeur v Hayes, 18 AD3d 979, 981 [2005], lv dismissed and denied 5 NY3d 871 [2005]).

Defendant met its burden of establishing the absence of actual and ascertainable damages, and plaintiff failed to raise a triable issue on such element. Therefore, the legal malpractice claim was properly dismissed. It is not necessary to discuss the other elements of the legal malpractice claim found lacking by Supreme Court.

"

The statute of limitations is an extraordinarily powerful concept.  After a specific period of time, it’s just too late to sue, even though the defendant was totally and wholly wrong.  It’s just too late!  Its a completely arbitrary period of time, too.

So, courts have ameliorated the hardship from time to time.  One way of mitigating the harsh rule is that of "continuous representation" in legal malpractice.  It basically says that the S/L does not start to run until the attorney has completed the work for the client.  Of course there are many intricacies, too. 

This week, Matter of Lawrence  2014 NY Slip Op 07291   was decided on October 28, 2014
by the New York Court of Appeals, with a decision by Read, J.  It is very, very important for the contingent fee world, and has much to say about continuous representation.

"There is a difference between an attorney’s alleged malfeasance in the provision of professional services on his client’s behalf, and a dispute between an attorney and his client over a financial transaction, such as legal fees or, in this case, a gift. Simply put, when an attorney engages in a financial transaction with a client, by charging a fee or, as in this case, accepting a gift, the attorney is not representing the client in that transaction at all, much less representing [*11]the client continuously with respect to "the particular problems (conditions) that gave rise to plaintiff’s malpractice claims" against the attorney (id. at 11). The attorney and client are engaging in a transaction that is separate and distinct from the attorney’s rendition of professional services on the client’s behalf (see e.g. Woyciesjes, 151 AD2d at 1014-1015 [rejecting applicability of the continuous representation doctrine to the plaintiff’s claim that his former attorney improperly charged him a fee of 50% rather than one-third]).

We have never endorsed continuous representation tolling for disputes between professionals and their clients over fees and the like, as opposed to claims of deficient performance where the professional continues to render services to the client with respect to the objected-to matter or transaction. Nor do the rationales underlying continuous representation tolling support its extension beyond current limits.

Two rationales inform the rule. First, a lay person "realistically cannot be expected to question and assess the techniques employed or the manner in which [professional] services are rendered"; specifically, a client cannot "be expected, in the normal course, to oversee or supervise the attorney’s handling of the matter" (Greene v Greene, 56 NY2d 86, 94 [1982]). Thus, the client should not be burdened with the obligation to identify the professional’s errors in the midst of the representation as "[t]he client is hardly in a position to know the intricacies of the practice or whether the necessary steps in the action have been taken" (Siegel v Kranis, 29 AD2d 477, 480 [2d Dept 1968]). Relatedly, a client cannot be "expected to jeopardize his pending case or his relationship with the attorney handling that case during the period that the attorney continues to represent the person" as to the matter giving rise to the malpractice claim (Glamm, 57 NY2d at 94). Second, a client who becomes aware of an error should not be required to sue immediately since that would only "interrupt corrective efforts" (Borgia v City of New York, 12 NY2d 151, 156 [1962] [establishing the continuous treatment rule for medical malpractice]).

When a client pays a lawyer or gives the lawyer a gift, the lawyer is not — in that transaction — "perform[ing] legal services on the [client’s] behalf" (Greene, 56 NY2d at 95). As a result, requiring the client to dispute the payment or seek return of the gift within the ordinary limitations period does not force a lay person to undertake actions that he is ill-equipped to carry out; i.e., to "question and assess the techniques employed" by the professional, or evaluate "the manner in which the services are rendered" or "oversee or supervise the attorney’s handling of the matter" (id. at 94). Notably, clients are obligated to review attorney’s invoices on a timely basis, rather than wait until the representation ends before raising objections (see Whiteman, Osterman & Hanna, LLP v Oppitz, 105 AD3d 1162, 1163 [2013] [an attorney or law firm may recover on a cause of action for an account stated "with proof that a bill, even if unitemized, was issued to a client and held by the client without objection for an unreasonable period of time(, and) need not establish the reasonableness of the fee since the client’s act of holding the statement without [*12]objection will be construed as acquiescence as to its correctness"] [internal quotation marks omitted])."

Client hires attorney and, let’s say, the relationship sours.  Client moves on to attorney 2 and there is a bad outcome to the litigation.  Who is responsible (if anyone)?  Is it attorney 1 or attorney 2 or both?

Tooma v Grossbarth   2014 NY Slip Op 07347  Decided on October 29, 2014  Appellate Division, Second Department is the exploration of this question, from the opposite persepctive.  Can attorney 1 successfully dismiss the case on the theory that Attorney 2 should/could have fixed the problem, but didn’t.  In this case attorney 1 fails, but others have succeeded.

"The defendants are an attorney and his law firm who represented the plaintiff in an underlying medical malpractice action that was commenced in December 2006. In the underlying action, the plaintiff alleged that he was injured as a result of medical malpractice arising from certain spinal surgery that he underwent on May 21, 2004, and the continuous "care and treatment" that he received until "at least June 18, 2004." In January 2012, while the underlying action was pending, it was brought to the attention of the Supreme Court in that action that the defendant Joel A. Grossbarth, the only practicing attorney associated with the defendant law firm Tognino & Grossbarth, LLP, was suspended from the practice of law. The Supreme Court stayed the underlying action until March 30, 2012, so that the plaintiff could retain new counsel. Thereafter, upon the motion of the defendants in the underlying action, the Supreme Court, in an order dated August 20, 2012, directed the dismissal of the complaint in the underlying action, based on the plaintiff’s failure to proceed to trial."

"The plaintiff contends that the defendants failed to timely join proper parties in the underlying action. Accordingly, the fact that the Supreme Court dismissed the complaint in the underlying action, which was asserted solely against parties that were allegedly not culpable to the plaintiff for improper medical treatment, and was based solely on the failure to proceed to trial, does not dispose of the plaintiff’s claim sounding in legal malpractice, since the order directing the dismissal of the complaint in the underlying action did not address the merits of the underlying action or the causes of action that the plaintiff may have had against the persons who were not joined as defendants in that action. Thus, the Supreme Court properly denied that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(1) to dismiss the complaint in this action."

"The defendants argue that, had the plaintiff retained successor counsel in the underlying action, that counsel could have remedied any alleged negligence that the defendants might have committed in their capacity as initial counsel, thus breaking any causal link between the negligence of initial counsel and the plaintiff’s damages. We reject the defendants’ contention. Unlike the instant action, the cases upon which the defendants rely arise from matters where the relief sought by a party was an absolute right, or where control of the outcome of litigation was wholly in the hands of successor counsel (see DiGiacomo v Levine, 76 AD3d 946; Volpe v Canfield, 237 AD2d 282; see also Katz v Herzfeld & Rubin, P.C., 48 AD3d 640, 641; Ramcharan v Pariser, 20 AD3d 556, 557; Perks v Lauto & Garabedian, 306 AD2d 261; Albin v Pearson, 289 AD2d 272; Kozmol v Law Firm of Allen L. Rothenberg, 241 AD2d 484). In order to remedy the negligence allegedly committed by the defendants in their capacity as the plaintiff’s initial counsel in the underlying action, any subsequent counsel in that action would have needed far more than a [*3]reasonably sufficient period of time in which to litigate the issue of the nonjoinder of proper parties (see Grant v LaTrace, 119 AD3d 646). Rather, to remedy that alleged negligence, a substituted counsel, or the plaintiff pro se, would have had to successfully litigate a motion to join allegedly culpable parties as additional defendants in the underlying action approximately five years after the statute of limitations on the medical malpractice cause of action had expired (see CPLR 214-a, 203[b]). The record before us provides no evidence to support the defendants’ contention that such a motion would have been successful (see Stevens v Winthrop S. Nassau Univ. Health Sys., Inc., 89 AD3d 835, 836; Matter of Murphy v Kirkland, 88 AD3d 267; Shapiro v Good Samaritan Regional Hosp. Med. Ctr., 42 AD3d 443, 444)."