Attorney represents client in a divorce case and then after a period of time (more than three years) represents client in a life insurance matter.  In Verkowitz v Ursprung ;2012 NY Slip Op 30284(U);
February 2, 2012; Sup Ct, Nassau County; Docket Number: 665/11; Judge: Anthony L. Parga we see the back and forth between an attorney’s suit for fees and the client’s legal malpractice case.  Three cases are started, and at the end of the decision, only one remains, with serious questions over whether there was a retainer agreement, whether there were objections to the billing, and whether the attorney had been hired to do the appeal, or agreed to do it pro-bono.

Here, there are many allegations of wrongdoing.  There is the allegation of failing to disclose the existence of malpractice, failing to advise client of her legal position in the insurance matter, failing to advise the client of how to settle the case, improperly billing the client in order to increase the legal fees, failing to distinguish between the rights and obligations of the client as either a trustee or a beneficiary of a life insurance policy, and failing to advise of a conflict of interest. 

Each suffers, determined the court, from a logical or stated connection with a specific outcome, or in other words, the "but for" portion of the case.  "An attorney’s failure to disclose a conflict of interest and advise her clients to consult with an independent attorney as a result of a purported conflict of interest does not by itself state a legal malpractice cause of action."

At the end of this case, most of the brush cut back, two of three cases dismissed, summary judgment denied, and all are warned of sanctions.

Sometimes a legal malpractice case goes to the jury on the real question of whether plaintiff could have prevailed in the underlying case (the "but for" issue) and sometimes the legal malpractice case is ended at the motion stage.  Here is one that was ended early.

Magidson v Badash ; 2012 NY Slip Op 00935 ; Decided on February 7, 2012 ; Appellate Division, Second Department  is a legal malpractice case in which the underlying matter remains undescribed.  The legal malpractice suffered from infirmities in the underlying case, and failed the "but for" problem. 
 

"The complaint failed to state a cause of action to recover damages for legal malpractice because the plaintiff neglected to plead that she would have prevailed in the underlying action, commenced in the Supreme Court, New York County, but for the defendants’ alleged malpractice in failing to file certain motions and appeal from certain orders issued in that action (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442; Kuzmin v Nevsky, 74 AD3d 896, 898; see also Weiner v Hershman & Leicher, 248 AD2d 193).

Moreover, the Supreme Court providently exercised its discretion in denying the plaintiff’s cross motion for leave to amend the complaint, as the proposed amendment was patently devoid of merit. The Appellate Division, First Department, concluded that the complaint in the underlying action was properly dismissed because the plaintiff commenced that action after the applicable statute of limitations had expired (see Magidson v Otterman, 57 AD3d 264, 264), and the proposed amendment, which did not include allegations that the defendants committed malpractice by failing to timely commence the underlying action, would not alter that result (see Matter of New York County DES Litig., 89 NY2d 506, 514; Byrd v Manor, 82 AD3d 813, 815).
 

Legal representation in even simple matters can lead to unintended consequences. As an Example  H & J Restaurant v, A & J Grand Enterprises and Leigh, 2009 Slip OP 31544, authored by Justice Edmead, demonstrates how a simple ministerial mistake can end up with a potential $ 400,000 loss, with later judgment against the attorney.

It’s a simple transaction, A buys a restaurant from B. As might be expected, Seller exaggerates the sales, or hides underpayment of taxes. Since these commercial transactions have taken place since time immemorial, there are safeguards and protections. Buyer can take the business free of personal liability if it notifies the tax authorities 10 days prior to the sale, in which case the tax authorities have 5 days to assert tax liability. Should it happen, buyer can then back out.

Here, the notification was not made within 10 days, and several months later the tax authorities asserted personal liability to buyer in the neighborhood of $ 400,000. Seller is in default, and no where to be found.

What is the lesson here? Lesson 1: Legal malpractice is everywhere lawyers represent clients. Lesson 2: Know the subject matter of your area of law and don’t make simple transactions difficult. Lesson
 

Insurers tell insureds that legal fee cases are the surest way of starting a legal malpractice case.  In Blank Rome, LLP v Parrish ;2012 NY Slip Op 00820 ;Decided on February 7, 2012 ;Appellate Division, First Department we see how this develops. 

 "Order, Supreme Court, New York County (Jeffrey K. Oing, J.), entered on or about March 25, 2011, which, in an action to recover unpaid legal fees, denied the motion of third-party defendants Bouchard Margules & Friedlander, P.A. and David Margules (collectively BMF) to dismiss the third-party complaint for indemnification and contribution, and granted plaintiff/third-party plaintiff Blank Rome LLP leave to amend the third-party complaint, unanimously modified, on the law, to dismiss Blank Rome, LLP’s cause of action for indemnification and to allow amendment of the third-party complaint to the extent of asserting additional allegations in furtherance of its cause of action for contribution, and otherwise affirmed, without costs.

"Insofar as the third-party and proposed amended third-party complaints allege that BMF represented defendant, agreed to represent him with respect to the issues giving rise to the legal malpractice alleged in defendant’s counterclaims, and that BMF was negligent with respect to such representation, the motion court properly declined to dismiss Blank Rome’s third-party claims for contribution since this cause of action was sufficiently pleaded (see Schauer v Joyce, 54 NY2d 1, 5 [1981] ["two or more persons who are subject to liability for damages for the same personal injury, injury to property or wrongful death, may claim contribution among them"] [internal quotation marks omitted]). However, the motion court erred when it denied BMF’s [*2]motion to the extent it sought to dismiss the third-party cause of action for indemnification. In order to recover on a claim for common law indemnification, "the one seeking indemnity must prove not only that it was not guilty of any negligence beyond the statutory liability but must also prove that the proposed indemnitor was guilty of some negligence that contributed to the causation of the accident for which the indemnitee was held liable to the injured party by virtue of some obligation imposed by law" (Correia v Professional Data Mgt., Inc., 259 AD2d 60, 65 [1999]). Here, insofar as neither the third-party nor proposed amended third-party complaint assert that Blank Rome, LLP’s liability is solely statutory and not based upon its own negligence, they fail to state a cause of action for common law indemnification. Blank Rome also fails to state a cause of action for contractual indemnification since "[a] party is entitled to full contractual indemnification provided that the intention to indemnify can be clearly implied from the language and purposes of the entire agreement and the surrounding facts and circumstances" (Drzewinski v Atlantic Scaffold & Ladder Co., 70 NY2d 774, 777 [1987] [internal quotation marks omitted]; Masciotta v Morse Diesel Intl., Inc., 303 AD2d 309, 310 [2003]). Here, neither the third-party nor the proposed amended third-party complaint identifies any agreement, let alone alleges that BMF ever agreed to indemnify Blank Rome, LLP for any legal malpractice committed in the course of its representation of the defendant.
 

Schneider v. Finmann, 15 NY3d 306 (2010) was a sea-change in the law of legal malpractice.  For the first time, an estate had standing to litigate over negligence in the representation of the estate and of decedent.  Naturally, the usual rules of limitation still apply.  Here, in Allmen v Fox Rothschild LLP; 2012 NY Slip Op 30244(U); January 31, 2012; Sup Ct, NY County; Docket Number: 101964/11; Judge: Manuel J. Mendez we see that some of the claims are too old, and some are timely.

"In or around 2005, defendant formulated Decedent‘s estate plan, and drafted Decedent‘s Last Will and Testament (the “Wlll”), which was executed on July 27,2005. Plaintiff alleges that certain provisions of the Will, including certain tax allocation clauses drafted by defendant, needlessly and negligently exposed the Estate to a danger of a significantly Increased tax burden upon Decedent’s death. None of the parties allege that any additional services were provided to Decedent by defendant after the Will was executed. 

Decedent died on June 16, 2006. On June 27, 2006, plaintiff retained defendant to represent her as executor of the Estate through the execution of a letter of engagement (the “Letter of Engagement”). The Letter of Engagement, which set forth the terms of the representation, was signed by both parties. On or about September 17, 2007, defendant prepared and filed on behalf of plaintiff, as executor, the Federal Estate tax return and the New York State tax return (collectively, the “Tax Returns”) for Decedent’s Estate. On or about June of 2008, the IRS selected the Estate for a tax audit (the “Audit”). Defendant represented the Estate in connection with the Audit. Plaintiff alleges that defendant was negligent In their preparation of the Tax Returns which resulted In an Increased tax burden, interest, and tax penalties for the Estate.

Plaintiff Initiated an action for legal malpractice and excessive billing In connection with   defendant’s rendering of legal services to Decedent and in connection with defendant’s rendering of legal services to the plaintiff directly. Plaintiff has standing to Initiate the action on behalf of the Estate under EPTL section II -3 .2(b) due to her designation as executor for the Estate. Estate of
Schneider v. Finmann, 15 N.Y.3d 306,907 N.Y.S.2d I 19, (2010). A claim for attorney malpractice accrues when the malpractice Is committed, and must be Interposed within three years thereafter. Shumsky v Elsensteln, 96 N.Y.2d 164,750 N.E.2d 67,726 N.Y.S.2d 365 (2001). The date at
which the client discovers the malpractice Is Irrelevant. Ackerman v. Prlce Waterhouse, 84 N.Y.2d 535,620 N.Y.S.2d 318, (1994). In this motion, defendant [* 2] is seeking to dismiss under CPLR 321I (a )(5) all allegations In plaintiff s amended complaint that are based on any conduct or omission alleged to have taken place In 2005, that is, defendant’s representation of Decedent in the drafting of the Will. Defendant Is asserting that the statute of limitations has expired.

The execution of the Letter of Engagement Is objective proof that none of the parties had an  understanding of continuous representation. In the Engagement Letter, plaintiff retained defendant to represent her as executor of the Estate. The titles outlined In the Engagement Letter are distinct from the defendant’s duties In drafting the Will. It was not until the Audit, two years after
Decedent’s death and the execution of the Engagement Letter, that there was any Indication that there might be a problem with the Will. “Given [the Estate’s] lack of awareness of a condition or problem warranting further representation and the fact that no course of representation was alleged, the purpose underlying the continuous representation doctrine would not be sewed by Its application here.” Wllliamson ex re/. Llpper Convertlbles, L. P. v. Pr/Waterhouse Coopers
LLP, supra. “the nature and scope of the parties’ retainer agreement (engagement) play a key role In determining whether ‘continuous representation’ was contemplated by the parties. Id. The act of executing the Engagement Letter, and the terms of representation contained therein, contradict the bare legal assertion that the doctrine of continuous representation would toll the statute of limitations following Decedent’s death. Without the application of the doctrine of continuous representation to toll the statute of limitations beyond Decedent’s death, the statute of limitations on malpractice claims on any conduct or omission alleged to have taken place In
2006, that is, defendant’s representation of Decedent in the drafting of the Wlll would have expired In June of 2009, prior to the execution of the Tolling Agreement."

A guy owns a business (a club?) called Good Time Charlies, and wants to sell it.  He hires an attorney who drafts the business sale documents, which include a note for $ 80,000.  Unfortunately, no "acceleration" clause is included.  The transaction goes sour, and plaintiff sues the buyer.  It’s then he learns that he cannot obtain the entire amount.  Is it legal malpractice?

Defendant raises a series of defenses, including res judicata and collateral estoppel.  They all fail and the case continues. Leschinski v Bailey;  2012 NY Slip Op 30202(U);  January 11, 2012
Supreme Court, Nassau County; Docket Number: 1934/10; Judge: R. Bruce Cozzens tells us:

"An action for legal malpractice requires proof of three elements: 1) the negligence of the
attorney; 2) that the negligence was the proximate cause of the loss sustained; and 3) proof of
actual damages. In order to show proximate cause, the plaintiff-client must establish that "but
for" the attorney s negligence, the plaintiff would have prevailed in the matter at issue or would
not have sustained any damages (Levine v. Lacher Lovell-Taylor 256 AD2d 147(lst Dep l998)). In applying the foregoing legal standard and the elements for a claim of legal malpractice to the case at bar, this Court has determined that plaintiff sufficiently alleges that Bailey, an attorney, undertook to memorialize the terms of the transfer of his business interests to a third party, Bortone, and that Bailey and the plaintiff had a relationship that required Bailey to exercise the degree of skill commonly exercised by an ordinary member of the legal community. The pleadings also allege damages resulting from this Court’ s limiting of the plaintiff s award to the months of non payment as opposed to an accelerated judgment for the full value of the Note. Accordingly, the pleadings state a cognizable cause of action for legal malpractice.
As to defendants’ proffered arguments for dismissal under CPLR ~321l (a) 5 , a review of
the doctrine of res judicata and collateral estoppel is in order. Generally, under res judicata, a
final judgment precludes reconsideration of all claims which could have or should have been
litigated in the prior proceedings against the same party (emphasis added) ( see Wisell Indo-
Med Commodities, Inc. 74 AD3d 1059 (2nd Dept. 2010)). The doctrine of collateral estoppel
precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised
in the prior action or proceeding, and decided against that party or those in privity, (emphasis added) whether or not the tribunals or causes of action are the same (see Altegra Credit Co. Tin Chu 29 AD3d 718 (2nd Dept. 2006)). Where the prior adjudication involved the same parties and the same cause of action, res judicata applies. Under res judicata, or claim preclusion, a valid final judgment bars future actions between the parties on the same cause of action. Generally, once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy ( see Breslin Realty Development. Corp. Shaw 72 AD3d 258 (2nd Dept. 2010)). Based on the foregoing, the doctrine of res judicata and collateral estoppel is wholly inapplicable to instant matter. The parties in the prior action, captioned Nothin’ But The Blues d/b/a Good Time (Charlies) v. Bortone under Index No. 7979/08, are not identical to the parties in the case at bar. Further, the issues litigated in that matter concerned Bortone s default under the Note. The claim of legal malpractice was not at issue nor was the defendant counsel a party to that action.

Psychologists and Forensic experts are routinely appointed by the Court to examine and produce evidence for the Court; attorneys similarly are used as guardians ad litem, as Court examiners and the like.  Are they subject to suit, especially legal malpractice for their activities?

Probably not, and in most cases, no.  Ashmore v Lewis, 2012 NY Slip Op 30189(U), January 23, 2012; Supreme Court, New York County; Docket Number: 108248/11 ; Judge: Alice Schlesinger is an example of a psychologist. Similar reasoning holds true for attorneys.

"As defendant correctly argues, the cases are legion that hold that a court- appointed forensic expert, such as Dr. Cohen Lewis here, is entitled to judicial immunity from suit in connection with the work performed pursuant to court order. For example, in Bridget M. V Billick, 36 AD3d 489, 490 (1st Dept, 2007), a case directly on point, the appellate court affirmed the trial court’s dismissal of an action against a psychiatrist appointed by the court as the neutral forensic evaluator in a Family Court custody proceeding, finding that the evaluator had “judicial immunity from suit for malpractice
regarding the work he performed … “ (citations omitted). Similarly, in Braverman v Halpern, 259 AD2d 306 (1st Dept 1999), the court found that allegedly defamatory statements made by an expert witness in a judicial proceeding involving child custody and visitation were not actionable, as the plaintiffs mental state was pertinent to a determination of the issues in the case. See also, Alvarez v Snyder, 264 AD2d 27 (1st Dept 2000), Iv denied 95 NY2d 759, cert denied sub nom Dim v Snyder, 531 US 1158 (2001); Finkelstein v. Bodek, 131 AD2d 337 (1st Dept’1987)’ app denied 70 NY2d 612  (statements made by a certified social worker cannot be the basis of suit, as the court appointed expert enjoyed immunity when acting pursuant to court order). The principle is not only firmly established in this judicial department, but it is well-recognized in the Second Department where the underlying divorce action was heard in this case. As recently as last year, the Appellate Division affirmed the trial court’s dismissal of a malpractice suit against psychologists and social workers who had been appointed as neutral experts either in the plaintiffs divorce action or in the Family Court proceeding involving custody and visitation with the children. In support of their motion to dismiss, the defendants employed by Family Psychological Services, P. C., had submitted their orders of appointment and evidence that they had acted pursuant to those orders. In affirming the dismissal of the negligence and malpractice claims, the court held: Here, the evidentiary material submitted by the defendants on their respective motions established conclusively that judicial immunity precludes the plaintiff from recovering damages for negligence or malpractice against them . Young v Campbell, 87 AD3d 692,693 (2nd Dept 2011)  lv denied 201 1 WL 61 55561
(citations omitted); see also, Horn v Reubins, 268 AD2d 461 (2nd Dept’ 2000), app dismissed 95 NY2d 886 (defendant has judicial immunity from suit regarding the work he performed as a court-appointed forensic psychiatric expert in connection with the plaintiffs child custody litigation); Colombo v Schwartz, 15 AD3d 522, 523 (2d Dept 2005)(affirming dismissal based on immunity of lawsuit against court-appointed psychiatric expert who had served in connection with the plaintiffs spousal support I it litigation ion). Public policy supports the protection afforded a court-appointed expert based on immunity from suit. Oftentimes a court needs to hear the opinions of experts to fully and fairly determine the issues raised in litigation. Judicial immunity protects judges in the  performance of their judicial functions so as to allow them to exercise independent judgment without the threat of legal reprisal, which is “critical to our judicial system.” Mosher-Simons v County of Allegany, 99 NY2d 214, 219 (2002), quoting Tarfer v State oflVew York, 68 NY2d 511, 518 (1986). “A logical extension of this premise is that ‘other neutrally positioned [individuals], regardless of title, who are delegated judicial or quasi-judicial functions should also not be shackled with the fear of civil retribution for their acts.’.” Mosher-Simons, 99 NY2d at 220, quoting Tarter, supra. Here, because Dr. Cohen Lewis was a court-appointed neutral forensic evaluator serving a quasi-judicial function, she is entitled to immunity from suit. "

The statute of limitations is three years in legal malpractice.  It may be extended by the principal of continuous representation.  Mere representation is not enough.  There has to be a continuing relationship of trust and confidence and the work within the three year period must be on the same issue as is now being sued upon.  It cannot simply be general representation or work on another issue.

In R. Brooks Assoc., Inc. v Harter Secrest & Emery LLP ; 2012 NY Slip Op 00602 ; Decided on January 31, 2012 ; Appellate Division, Fourth Department  plaintiff loses because it cannot be demonstrated that the latest work was on the same issue being sued upon.  "Pursuant to CPLR 214 (6), an action to recover damages for legal malpractice must be commenced within three years of accrual. A legal "malpractice claim accrues when all the facts necessary to the cause of action have occurred and an injured party can obtain relief in court’ " (Guerra Press, Inc. v Campbell & Parlato, LLP, 17 AD3d 1031, 1032, quoting Ackerman v Price Waterhouse, 84 NY2d 535, 541). Here, defendant met its initial burden on the motion by submitting evidence establishing that the alleged malpractice occurred, at the latest, on August 3, 1999 and thus that the action was time-barred when commenced on May 4, 2004.

In opposition to the motion, plaintiff failed to raise a triable issue of fact whether the continuous representation doctrine applied to toll the statute of limitations (see generally Zuckerman v City of New York, 49 NY2d 557, 562). Pursuant to that doctrine, the running of the limitations period is tolled during the time that an attorney continues to represent a client on the matter that is the subject of the malpractice action because the client must be able "to repose confidence in the professional’s ability and good faith, and realistically cannot be expected to question and assess the techniques employed or the manner in which the services are rendered" (Williamson v PricewaterhouseCoopers LLP, 9 NY3d 1, 9 [internal quotation marks omitted]). The doctrine tolls the limitations period "where there is a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim" (McCoy v Feinman, 99 NY2d 295, 306), and " where the continuing representation pertains specifically to [*2][that] matter’ " (International Electron Devices [USA] LLC v Menter, Rudin & Trivelpiece, P.C., 71 AD3d 1512, 1513, quoting Shumsky v Eisenstein, 96 NY2d 164, 168; see Chicago Tit. Ins. Co. v Mazula, 47 AD3d 999, 1000).

Here, although plaintiff submitted bills from defendant for legal work performed within three years of the commencement of the action, it failed to establish that the bills were for work on the matter that was the subject of the alleged malpractice. Indeed, the evidence submitted by defendant established that the last work that it performed for plaintiff with respect to the subject of the alleged malpractice occurred in January or February 2001, and plaintiff failed to submit evidence raising a triable issue of fact whether the work performed after that time was related to the alleged malpractice. We therefore conclude that the evidence submitted by plaintiff established no "more than simply an extended general relationship between the [parties]" (Zaref v Berk & Michaels, 192 AD2d 346, 348). Such evidence is insufficient to raise a triable issue of fact whether "(1) plaintiff[] and defendant . . . were acutely aware of the need for further representation[ concerning the subject of the alleged malpractice,] i.e., they had a mutual understanding to that effect[], and (2) plaintiff[ was] under the impression that defendant . . . was actively addressing [its] legal needs" with respect to the subject of the alleged malpractice (Williamson, 9 NY3d at 10). Consequently, the doctrine of continuous representation does not apply, and Supreme Court erred in denying the motion (see Gotay v Brietbart, 12 NY3d 894; see generally Young v New York City Health & Hosps. Corp., 91 NY2d 291, 295-297). "