Irony has little place in litigation, yet it abounds. In Perez-Faringer v Heilman ; 2010 NY Slip Op 09238 ; Decided on December 14, 2010 ; Appellate Division, Second Department plaintiff, pro-se in the action below, and in the appeal, has had the action dismissed, for the mere and easily avoidable failure to serve a complaint after demand.
 

The unfortunate juxtaposition of a case within a case within a case is unique to legal malpractice litigation. In a meta- sort of way it is symmetric. "The plaintiffs purchased a parcel of real property located in Scarsdale (hereinafter the subject property), from the defendant Lila Lambert Carloni. In this real estate transaction, the plaintiffs were represented by the defendant Julia Heilman and Carloni was represented by the defendant Sue Freedman. Subsequent to the closing of title, the plaintiffs discovered that the property upon which an easement which they needed to park their cars would not be maintained or repaired by the Village of Scarsdale, as represented by Carloni in the contract. In addition, they found out that the third floor of the home on the property, which had been converted into living space, and the front deck, did not have certificates of occupancy.

On September 29, 2008, the plaintiffs pro se filed a summons with notice at the Westchester County Clerk commencing an action against, among others, Heilman, Carloni, and Freedman, inter alia, to recover damages for legal malpractice, fraud, and breach of fiduciary duty. "

"On February 9, 2009, Freedman served a demand for a complaint on the plaintiffs. Since Freedman mailed this demand to the plaintiffs, the plaintiffs had until March 6, 2009, to serve their complaint. The plaintiffs failed to serve a complaint upon Freedman by that date. [*2]

In an order entered July 14, 2009, the Supreme Court granted Freedman’s motion to dismiss the action pursuant to CPLR 3012(b) insofar as asserted against her. In a second order also issued the same day, the Supreme Court denied the plaintiffs’ motion, inter alia, to extend their time to serve their complaint. We affirm. "
 

In what may be her last published decision before retirement Justice Emily Jane Goodman enters a field that has not been touched for years, and for which there seemed to be certainty on what damages were permitted.  In legal malpractice, a claim by a criminal defendant for legal malpractice  is almost never successful, and when it is, damages are generally (as in all legal malpractice) limited to pecuniary loss.  In D’Alessandro v Carro ;2012 NY Slip Op 30529(U); February 29, 2012; Supreme Court, New York County ;Docket Number: 100135/2011 ; Judge: Emily Jane Goodman finds to the contrary.

Plaintiff was tried in New York County for kidnapping, and when convicted, sentenced to the max.  He had a good CPL 30.30 claim for speedy trial violations.  The 30.30 claim was not raised prior to trial, and when plaintiff hired an attorney to appeal, the 30.30 claim was once more not raised.  It should have been, as eventually, the 1st Department granted a writ of Corum Nobis.

From the Decision:  "Plaintiff served 14 and a half years of his term and was released on parole. He then moved for a writ of error coram nobis’ on the ground that the trial court improperly determined that the speedy trial provision was not violated, and noted his
attorney’s failure to appeal the issue in the direct appeal. The appellate court granted the writ (People v. D‘Alessandro, 2010 WL 2652447 [Ist Dept 20101). It found that ’ The statute creates a time frame wherein the People must be ready for trial, and if the People are not “effectively” ready
for trial, the defendant can be released from custody or the case can be dismissed. Generally, a writ of error coram nobis is the remedy for setting aside an erroneous judgment ‘that resulted from an error of fact in the proceeding. 

"the speedy trial argument was "clearly meritorious" and determined that, notwithstanding Defendants’ otherwise effective assistance, its failure to raise that "clear cut and dispositive"
argument warranted the grant of the writ. The court held: Because it is "clear-cut" that defendant would have prevailed on the speedy trial issue had his appellate counsel raised it, he is entitled to a writ of error coram nobis.

Next, Defendants argue that plaintiff does not, and cannot, make a colorable claim of innocence.
[TI0 state a cause of action for legal malpractice arising from negligent representation in a criminal
proceeding, plaintiff must allege his innocence or a colorable claim of innocence of the underlying offense . . . for so long as the determination of his guilt of that offense remains undisturbed, no cause of action will lie . . . This requirement is central to the determination of causation in a cause of action for legal malpractice arising from a criminal proceeding . . .
***
We require that the criminal client bear the unique burden to plead and prove that the client’s conviction was due to the attorney’s actions alone and not due to some consequence of his guilt
(Britt v Legal Aid SOC., Inc., 95 NY2d 443, 446 [200O][citations omitted]). Where an individual cannot assert his innocence, public policy ”prevent maintenance of a malpractice action
against his attorney” (Carmel v Lunney, 70 NY2d 169, 173 (1987)

In other words, an otherwise guilty individual should not be able to profit from his criminal acts due to the procedural mistakes of his attorney. Defendants argue that plaintiff cannot prove that the
conviction was due to his attorney’s actions alone because “the plaintiff is factually guilty.” In support, Defendants cite to several items of documentary evidence to prove guilt, including
the 1993 judgment of conviction, which was reversed, and the 1996 appeal decision, which was recalled and vacated. Defendants also cite to the 1993 jury verdict, which was not explicitly vacated;
however, the indictment from which that verdict followed was dismissed (People v D‘Alessandro, 2010 WL 2652447 [lst Dept 2010). plaintiff, dated September of 1996, wherein he stated ‘ [ i l f I was told or knew that kidnapping in the first degree carried a mandatory fifteen year sentence . . . I would have sought a plea disposition in this case, regardless of my guilt or innocence” (Hyland Aff., Ex. E). Defendants claim this unsigned, unsworn affidavit is an acknowledgment of guilt.
Finally, Defendants provide an unsigned affidavit of It is not.
 

While to a casual reader, rather than a legal scholar, it may be sufficient to rely -on the conviction as proof of guilt, but for the denial of the 30.30 motion, it would not have gone to a jury. And if not for the failure to raise the 30.30 decision on appeal, the duration of plaintiff’s incarceration would have been dramatically reduced.

.The ten year old Wilson theory of damages was not adopted by the Fourth Department in the recent case of Dombrowski, supra. In that matter, plaintiff was convicted of two felonies.
assistance of counsel. The motion was denied. Plaintiff then commenced a habeas corpus proceeding contending ineffective assistance of counsel. The petition was granted and the
indictment dismissed; however, plaintiff had served five years in He moved to vacate the conviction for ineffective assistance of counsel.  The petition was granted and the indictment dismissed; however, plaintiff had served five years in jail. Plaintiff then sued his defense attorney for legal
malpractice for, inter alia, loss of liberty. The Supreme Court granted summary judgment dismissing the complaint on the ground that he had no right to recover non-pecuniary damages.
Fourth Department reversed the decision. The It noted that the trend amongst many other states is to allow recovery for loss of liberty in criminal legal malpractice cases, and held that [A] plaintiff who establishes that he or she was wrongfully convicted due to the malpractice of his or her
attorney in a criminal case may recover compensatory damages for the actual injury sustained, i . e . , loss of liberty (Dombrowski, 79 AD3d, at 1590). Placed in the current context, if the Appellate
Division, First Department had the occasion to revisit the instant case, or a similar one where malpractice has been established and the issue of damages is central, perhaps it would be viewed differently."

After a trial, All Town Real Estate Associates has won a two part legal malpractice judgment, now affirmed by the Appellate Division.  In Island Props. & Equities, LLC v Cox ;2012 NY Slip Op 01656 ; Decided on March 6, 2012; Appellate Division, Second Department  we see that the attorney failed to handle two different aspects of real estate practice.  In the first, he failed to correct a motion seeking distribution of funds and in the second failed timely to file a mortgage. 
 

"In connection with the third cause of action, the plaintiff All Town Real Estate Associates, Inc. (hereinafter All Town), established that, but for the defendant’s negligence in failing to correct a motion in a foreclosure action to confirm a referee’s report and for distribution of surplus [*2]funds, where the motion had been rejected by the Supreme Court after the defendant filed it, All Town would have received the surplus funds deposited with a county treasurer after the real property in question had been foreclosed upon. However, since the evidence established that the amount of the surplus funds was $12,334.76, as opposed to $14,000, we modify the judgment accordingly.

With respect to the fifth cause of action, the evidence established that the defendant negligently delayed recording a mortgage on certain real property which secured a $50,000 loan from the plaintiff Island Properties & Equities, LLC (hereinafter Island). This delay allowed the borrower to refinance a first mortgage on the property without satisfying Island’s mortgage, and ultimately rendered Island’s mortgage worthless. We reject the defendant’s contention that the damages sustained by Island were speculative.

The defendant’s remaining contention is without merit. "

Spanish company is in the business of exporting and selling olive oil.  While in bankruptcy it arranges for ongoing sales to the US.  US Company hires CPAs to do routine monthly billing and reconciliations which go wrong.  How long does the representation go on, and does it comprise "continuous representation"?  Is the commencement date for purposes of the statute of limitations the date of the first mistake or of its discovery?

Since at this juncture the intended scope of defendants’ services cannot be determined, it also cannot be determined whether plaintiffs instituted this action within the requisite statute of limitations. Pursuant to CPLR 214(6), an action for professional malpractice must be commenced within three years of the date of accrual. A claim for professional malpractice accrues when the malpractice is committed, not when it is discovered  (see Williamson v Pricewaterhousecoopers LLP, 9 NY3d 1, 7-8 [2007]), Under the continuous representation doctrine, if the accountant whose professional work is being questioned engages in continuous work for the client with respect to the particular transaction that is the subject of the action, the statutory period is tolled (see Mitschele v Schulfz, 36 AD3d 249, 253 [Ist Dept 20061). “The mere recurrence of professional services does not constitute continuous representation where the later services performed were not related to the original services” ( id ) . In the case at bar, the evidence presented indicates that monthly reports were sent to Spain until March of 2004 and that between March and June of 2004, defendants assisted in  the preparation of a revised reconciliation statement to be sent to Fedeoliva. The scope of defendants’ services is undetermined at this time, thus it cannot be stated with certainty when the statute of limitations began to run. Specifically, it is unclear whether the reports and revised reconciliation were part of continuous work for which defendants were engaged, which would make the continuous representation doctrine applicable and toll the statute of limitations. similarly, in order to establish privity between plaintiffs and defendants, it must be shown that: (1) defendants were aware that their reports were to be used for a particular purpose; (2) in the furtherance of which a known party was intended to rely; and (3) some conduct on the part of defendants evincing their understanding that plaintiffs were going to rely on their accounting work (see Security Pac. Bus, Credit v Peat Marnick Main & Co., 79 NY2d 695, 702 [I 9921; Credit Alliance Corp. v Arthur Andersen & Co., 65 NY2d 536 [ISSS]). Since issues of material fact remain as to what service5 defendants agreed to provide and defendants’ knowledge of the relationship between plaintiffs and Fedeoliva USA, defendants’ privity argument cannot be resolved at the present time.

Moreover, the Court is not persuaded by defendants’ in pari delicto argument because, at this time, there is no e-evidence of Fedeoliva USA’s wrongdoing and, even if that doctrine were to apply, it does not exclude a cause of action for contribution among joint tortfeasors (Rpsenbach v The Diversified Group, Inc., 85 AD3d 569 [Ist Dept 201 11).

There are some attorney specialists in NY.  There is board certification in DWI litigation, in Legal Malpractice, in Medical malpractice and there are Board certified civil trial specialists.  Until a few days ago, if one who was board certified used that title in any letterhead or ad, the following disclaimer was necessary:  ""[1] The [name of the private certifying organization] is not affiliated with any governmental authority [,] [2] Certification is not a requirement for the practice of law in the State of New York and [3] does not necessarily indicate greater competence than other attorneys experience in this field of law.""

Now, the 2d Circuit has ruled the rule unconstitutional  in Hayes v. State of New York Attorney Grievance Committee of the Eighth Judicial District, 10-1587-cv, reversing Western District Judge John T. Elfvin’s grant of summary judgment to the grievance committee and the decision of Magistrate Judge H. Kenneth Schroeder, who rejected Mr. Hayes’ void-for-vagueness claim following a bench trial in 2010. 

In today’s New York Law Journal, Mark Hamblett writes "Parts of a New York rule requiring that attorneys who claim to be certified specialists make prescribed disclosure statements violates the First Amendment, the U.S. Court of Appeals for the Second Circuit ruled yesterday.

Buffalo personal injury lawyer J. Michael Hayes convinced the Second Circuit that there was a lack of clear standards for enforcing Rule 7.4 of the New York Rules of Professional Conduct on attorney specializations.

Mr. Hayes had drawn the attention of the Attorney Grievance Committee in the Eighth Judicial District for inadequate disclosures on his letterhead and on one of two billboards advertising his services in 1999.

Although he was never formally disciplined for running afoul of Rule 7.4, "Identification of Practice and Specialty," Mr. Hayes was facing potential discipline for his letterhead when he filed an action in the Western District seeking a declaration that the rule was unconstitutional both on its face and as applied.

On March 5, the Second Circuit agreed in Hayes v. State of New York Attorney Grievance Committee of the Eighth Judicial District, 10-1587-cv, reversing Western District Judge John T. Elfvin’s grant of summary judgment to the grievance committee and the decision of Magistrate Judge H. Kenneth Schroeder, who rejected Mr. Hayes’ void-for-vagueness claim following a bench trial in 2010"
 

"The best defense is a strong offense"…"Tyranny shall not go unopposed!" which of these two opposing story lines will succeed in a legal fee / legal malpractice case. Here is one example where the fee side wins out. Duane Morris LLP v Astor Holdings Inc. , 2009 NY Slip Op 02544
Decided on April 2, 2009 Appellate Division, First Department permits the attorneys to collect their fee, and the malpractice claims to die.
 

"The record shows that in December 2003, each defendant signed an agreement with plaintiff, acknowledging that it owed plaintiff a certain sum of money for their legal representation and agreeing to pay it within a certain amount of time. Although defendants contend that there is a triable issue of fact as to whether these agreements were signed under duress, "[r]epudiation of an agreement on the ground that it was procured by duress requires a showing of both (1) a wrongful threat, and (2) the preclusion of the exercise of free will" (Fred Ehrlich, P.C. v Tullo, 274 AD2d 303, 304 [2000]). The affidavit of defendants’ principal, which claimed that he orally protested plaintiff’s services, does not serve to defeat plaintiff’s motion. A client’s "self-serving, bald allegations of oral protests [a]re insufficient to raise a triable issue of fact as to the existence of an account stated" (Darby & Darby v VSI Intl., 95 NY2d 308, 315 [2000])

The part of defendants’ malpractice counterclaim that dealt with the action against Edward Roski III was properly dismissed. "A legal malpractice action is unlikely to succeed when the attorney erred because an issue of law was unsettled or debatable" (Darby, 95 NY2d at 315 [internal quotation marks and citation omitted]). When the Southern District of New York found that some of Astor’s claims in the Roski Action were barred, it noted that "there appears to be no federal authority directly on point" (Astor Holdings, Inc. v Roski, 325 F Supp 2d 251, 262 [SD NY 2003]), and relied on a California state case that was decided in 2002 (see id.), which was after the Roski action was filed…."
 

Attorneys hold funds for clients, and many attorneys get in trouble because of it.  Just this week two disciplinary cases were published.  In one the brother of an attorney converted a large sum from the escrow account.  The attorney was suspended for failing to supervise his brother.  Here, the attorney resigns in the face of two claims that he took a large sum of money that should have been in escrow. In the second of the two complaints he was sued for, and admitted legal malpractice,

Matter of Weiner ;2012 NY Slip Op 01580 ;Decided on March 1, 2012 ;Appellate Division, First Department ;Per Curiam. 
 

"Respondent acknowledges that in August 2011, a complaint was filed against him by an individual alleging that he wrongfully was in possession of her $10,000 down payment, wired to him as seller’s attorney, for the purpose of purchasing real property. When the mortgage application was denied, the individual was entitled to the return of her down payment which respondent had kept in his business account since he did not have an escrow account related to his practice of law. In June 2011, he gave the individual a check for $10,000, but, it was returned for insufficient funds. It is further alleged that respondent used the down payment funds for a purpose other than what it was intended.

In September 2011, respondent received a copy of a complaint filed against him by two individuals alleging that he converted escrow funds for his personal use without their authority during the course of his representation as their attorney in the sale of their apartment. Earlier, on or about August 2, 2011, the two individuals had commenced a civil suit in New York Supreme Court against respondent alleging, conversion, breach of contract, legal malpractice, breach of fiduciary duty or negligence. On or about August 15, 2011, respondent entered into a stipulation with them wherein he admitted that he had no defense to the claims asserted in the civil lawsuit and a judgment was entered against him for $116,812.19, which included prejudgment interest and attorney’s fees. "

Litigants faced with the 3 year statute of limitations often turn to a fraud cause of action.  Fraud has a 6 year statute of limitations, and in some instances an even longer discovery statute, which would be 2 years after discovery of the fraud.  It’s inviting and promises a cause of action when the legal malpractice time has passed.  It does not always work, and when it is clumsily pled, it is generally a failure.

Coleman v Korn ;2012 NY Slip Op 01374 ;Decided on February 23, 2012 ;Appellate Division, First Department  was dismissed because the fraud was not pled, and raised only late in motion practice.  "Plaintiff was required to commence this legal malpractice action within three years of defendant’s withdrawal as his counsel, but failed to do so (see CPLR 214[6]; cf. Gonzalez v Ellenberg, 300 AD2d 173, 174 [2002]). Plaintiff’s fraud and Judiciary Law § 487 claims were raised for the first time in a surreply, which Supreme Court properly refused to consider (see CPLR 2214[b],[c]; Garced v Clinton Arms Assoc., 58 AD3d 506, 509 [2009]). "