The matter of Steinberg v. Schnapp, 2010 NY SlipOp 02991 relates the story of three lawyers, all of whom labored over a decedent’s estate, and how the triumvirate fell apart. Steinberg and Schnapp were retained to handle the estate by the executor who in this case was the third attorney. Things fell apart rapidly, and, although unsaid, some mistakes were made. Attorney 1 sues attorney 2 over fees, but does not sue the estate. Why is this?

Judge Nardelli seems to have hit it on the head when he wrote "Inchoate in his complaint and the averments in support is a veiled concern that he might face a legal malpractice action for actions for which he was not responsible. Why a claim in quantum meruit against co-counsel would forestall such an action is left unsaid, but, in any event, the only issue before us with regard to the quantum meruit claim is whether Steinberg has raised any questions of fact as to Schnapp’s argument that he has failed to state a cause of action.

At issue is the propriety of the motion court’s dismissal of an attorney’s claims under the theories of quantum meruit, as well as tortious interference with advantageous economic relationships. Both plaintiff Robert Steinberg and defendant Stanley Schnapp are attorneys admitted to practice in New York. Non-party Leon Baer Borstein also is an attorney, and was the preliminary executor of the estate of Isi Fischzang.

In the claim for tortious interference Steinberg alleges that he was fired because the "underlying client" (Borstein) had become dissatisfied with the delays in the probate of the estate, but that Schnapp fired Steinberg to shift the blame for the delays to Steinberg. Notably, Steinberg acknowledges that the "underlying client" could have requested his discharge "whimsically or capriciously or for any reason or for no reason, but the discharge would remain without cause.’" His concern that there is an intimation that his termination was "for cause" apparently provides much of the impetus for this litigation.

"[W]e are required to adjudicate [parties’] rights according to the unambiguous terms of the contract and therefore must give the words and phrases employed their plain meaning (Laba v. Carey, 29 NY2d 302, 308 [1971]). The plain language of all the written documents presented in this record evidences that Steinberg’s client was the estate, and not Schnapp. Certainly, "[i]f a client exercises the right to discharge an attorney after some services are performed but prior to the completion of the services for which the fee was agreed upon, the discharged attorney is entitled to recover compensation from the client measured by the fair and reasonable value of the completed services" (Matter of Cooperman, 83 NY2d 465, 473 [1994] [emphasis added]). In this case Steinberg has sought to recover compensation for his services from a party who did not have any obligation to compensate him – his co-counsel – with whom he was clearly not in privity. There is not even a suggestion that the estate is an undisclosed principal, in which case liability might attach to Schnapp, under time-honored principles (see e.g. Ell Dee Clothing Co. v. Marsh, 247 NY 392, 397 [1928])."
 

Pre-judgment attachment is disfavored in litigation.  Generally one must show that "the subject property was in imminent danger of irreparable loss or waste ."  Beyond that showing, there are rules when the request for an attachment might be sought.  Here is an example.

Breslin Realty Dev. Corp. v Shaw ; 2012 NY Slip Op 00478 ; Decided on January 24, 2012 ; Appllate Division, Second Department . 
 

"In an action to recover damages for legal malpractice, the plaintiffs appeal from so much of an order of the Supreme Court, Nassau County (Warshawsky, J.), entered November 20, 2009, as granted the motion of Ronald Pecunies for leave to intervene in this action as a party plaintiff to the extent of directing the plaintiffs’ counsel to hold in escrow the sum of $117,120, purportedly representing the share of the proceeds of the settlement of this action claimed by Ronald Pecunies, for 30 days.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the motion for leave to intervene is denied in its entirety.

We agree with the plaintiffs’ contention that the motion of Ronald Pecunies for leave to intervene in this action as a party plaintiff should have been denied in its entirety. By the time Pecunies filed the motion, the litigating parties had already entered into a stipulation of settlement and this action was discontinued. Further, Pecunies was aware of this action from its inception, yet chose not to participate. Under these circumstances, there was no pending action in which to intervene, and the motion should have been denied in its entirety by the Supreme Court (see CPLR 1012, 1013; Carnrike v Youngs, 70 AD3d 1146; Rectory Realty Assoc. v Town of Southampton, 151 AD2d 737; 176 E. 123rd St. Corp. v Frangen, 67 Misc 2d 281).

In any event, the relief granted by the Supreme Court, in the nature of establishing a temporary receivership, was improper because the settlement proceeds at issue here were not the subject of any action, and there was no clear evidentiary showing that the subject property was in imminent danger of irreparable loss or waste (see CPLR 6401[a]; Vardaris Tech, Inc. v Paleros Inc., 49 AD3d 631, 632; Singh v Brunswick Hosp. Ctr., 2 AD3d 433; Matter of Armienti & Brooks, 309 AD2d 659, 661; Schachner v Sikowitz, 94 AD2d 709). [*2]"

We’ve often noted that stating the mistake made by an attorney is not the difficult part of legal malpractice analysis.  Judges, lay persons and attorneys all readily point to this mistake or that mistake. Stating a departure from good and accepted practice is the easy part of the triumvirate.  What is way more difficult is analysis of the "but for" and the "damage" aspects of a case.  Here, in Meimeteas v Carter Ledyard & Milburn LLP ;2012 NY Slip Op 30134(U) ;January 12, 2012
Supreme Court, New York County; Docket Number: 100857/11 ;Judge: Eileen A. Rakower we see that plaintiff fails to convince the judge that there is merit to the underlying claim, regardless of mistakes his attorney may have made.

"According to the complaint, plaintiff was employed as Vice President in the Global Commercial Real Estate Group at Lehman Brothers (“Lehman”) from September 1997 until November 2004, when he was “abruptly terminated” from his position. Plaintiff alleges that he was fired for
voicing his objections to engaging in “certain illegal and or unethical business practices”in which his Lehman colleagues participated. Plaintiff claims that he was told that if he “went quietly” he would be paid his full bonus for 2004, in the amount of $290,000. Plaintiff did not receive his bonus.

Thereafter, plaintiff engaged defendant Carter Legyard & Milburn LLP (“CLM”). Defendant Janet Lockhart handled plaintiffs case for the firm. Plaintiff claims that Lockhart assured him that “a quick and favorable settlement” could be had, and, if not, she would file either an arbitration proceeding pursuant to plaintiffs “Series 7 License,” a lawsuit for wrongful termination, or seek redress for plaintiff as a “whistle blower.”

In early 2006, Lockhart advised plaintiff to appear for a deposition in an unrelated case involving Lehman and one of its clients, Laureate, and to sign a “stand still” agreement until August 2006. Lockhart apparently told plaintiff that if he cooperated, it would result in a quicker and more favorable settlement of plaintiffs claims. Lehman agreed to pay for CLM’s preparation and  representation of plaintiff at the deposition, Plaintiff stopped receiving bills from CLM entirely.
Plaintiff signed the stand still agreement and appeared for the deposition in April 2006, but CLM did not appear on his behalf. Plaintiff, later in his complaint, alludes to other representation at the deposition. Thereafter, plaintiff made efforts to get a firm response on the status of his case and settlement, but repeated calls by plaintiff and his wife were not returned. Eventually, Lockhart and other CLM partners advised plaintiff that they had nothing to report, because nothing could be done while the unrelated lawsuit involving Lehman remained unresolved. In April 2007, Lockhart encouraged plaintiff to extend the stand still agreement, which plaintiff refused to do. However, CLM and Lehman allegedly extended the agreement without plaintiff’s knowledge or consent.
CLM took no action against Lehman, and in 2008, plaintiff learned from Lehman’s counsel that Lehman. had settled the unrelated matter in the fall of 2007. In March 2008, plaintiff started calling Lockhart with increasing frequency because he was becoming concerned about the financial condition of Lehman, but his calls were not returned. Plaintiff alleges that CLM still took no action in furtherance of his claims, but Lockhart assured him that “Lehman was not in serious
danger of bankruptcy or sale.”
 

In September 2008, Lehman filed for bankruptcy, and plaintiff called Lockhart that day to seek legal guidance as to how his interests could be protected. Lockhart  advised plaintiff that, despite the bankruptcy, the claims could still be advanced because they were evidenced by the stand still agreements and the ongoing discussions with Lehman since 2004. Plaintiff heard nothing else from CLM or Lockhart, and ultimately filed a proof of claim online without assistance from CLM
on the last date that he was permitted to do so.

The complaint, in a veiled attempt to show that defendants’ negligent representation was the proximate cause of his losses, suggests plaintiff possessed proof of unethical practices, and suggests he was wrongfully terminated by Lehman. Proof of unethical practices is vaguely referred to in his allegations that he testified truthfully at a deposition regarding these practices and disclosed them. Nevertheless, the precise information plaintiff possessed for purposes of his whistle blower claim is never delineated. (compare with; Hayes v. Bello, 23 Misc.3d 534[Sup. Crt.
Richmond Cnty. 20091, where the court found that plaintiff satisfied the causation element by alleging “sufficient detailed facts regarding the circumstances and activities surrounding her termination,” including the specific alleged illegal activity, whom she reported the illegal activity to, and that such report resulted in her retaliatory termination.)
Further, the employment relationship between plaintiff and Lehman is never explained. For example, whether such relationship was subject to any written agreement. Indeed, plaintiff mentions Lehman practices when revealing that his bonus was not payable once he had left employment, but does not reveal whether his  employment and compensation was subject to an employee handbook or other agreement. He simply denies the documented reason for his termination, which was stated to be non productive "

Were we able to predict the future, we would be betting on further proceedings after the decision in CRP/Extell Parcel I, L.P. v Cuomo; 2012 NY Slip Op 50073(U) ; Decided on January 19, 2012
Supreme Court, New York County; Singh, J.  Here are the facts as set forth by Justice Singh.
 

"Petitioner CRP/Extell Parcel I, L.P. ("CRP/Extell") challenges the determinations issued by respondent, the Attorney General of the State of New York, ordering petitioner to return $16 million dollars in down payments to the purchasers of forty condominium units in a new [*2]construction on the West Side of Manhattan.

Petitioner is the developer of The Rushmore, a newly constructed luxury condominium located at 80 Riverside Boulevard. The condominium development offering plan was made in 2006 and 2007. The co-respondents are individual condominium purchasers ("purchasers") who entered into agreements with petitioner to buy condos.  CRP/Extell submitted its proposed plan to the Attorney General’s Office on November 29, 2005. Thereafter, the Attorney General issued deficiency comments to the sponsor’s outside counsel which is also the escrow agent in this matter, the law firm of Stroock & Stroock & Lavan LLP (hereinafter "Stroock"). The ongoing review process began, sets of revisions were submitted by petitioner’s attorneys and the Attorney General reviewed and commented on such revisions.

On August 11, 2006, petitioner’s plan was accepted for filing by the Attorney General’s Office. CRP/Extell then began offering condominium units for sale.

Between 2006 and 2008, the forty individuals named as co-respondents in this proceeding entered into purchase agreements with petitioner. The purchase agreements incorporated by reference CRP/Extell’s offering plan. The offering plan identified the commencement date for the first year of operations in the building. The projected first closing date was September 1, 2008.

In accordance with the agreements, purchasers tendered down payments to CRP/Extell. [*3]The down payments were all placed in escrow subject to 13 NYCRR section 20.3(o) in accordance with the offering plan.

The aggregate amount of the down payments paid by the purchasers is $16 million dollars. The properties are valued collectively at over $110 million dollars.

Section 20.3(o)(12) of the regulations required CRP/Extell to offer purchasers a right to rescind if the first closing in the building was delayed twelve (12) months beyond the anticipated commencement of the first year of operations. CRP/Extell was required, therefore, to offer purchasers a right to rescind if the first closing did not occur by September 1, 2009.

The offering plan contains a provision stating as follows:

It is anticipated that the First Closing will occur by the commencement date for the First Year of Condominium Operation as set forth in Schedule B which is September 1, 2008. If the First Closing does not occur by September 1, 2008, as such date may be extended by duly filed amendment to the Plan, Sponsor will amend the Plan to update the budget and to offer Purchasers the right to rescind their Agreements within fifteen (15) days after the presentation of the amendment disclosing the updated budget, and any Purchaser electing rescission will have their Deposits and any interest earned thereon returned.

It is undisputed that the offering plan was drafted by CRP/Extell’s counsel. Petitioner contends that the attorney who drafted the offering plan erroneously typed an "8" (September 1, 2008) instead of a "9" (September 1, 2009) in the above provision.

There is a heavy presumption that a deliberately prepared and executed written instrument accurately reflects the true intention of the parties. To overcome this presumption and warrant a trial on a claim for reformation, the plaintiff must come forth with a high level of proof, free of contradiction or equivocation, that the instrument is not written as intended by both parties. The party seeking reformation bears the burden of proving by clear and convincing evidence that the instrument is not correct due to an error in the reduction of the agreement to writing, or that it was executed under mutual mistake or unilateral mistake coupled with fraud. This means that the plaintiff must show, in no uncertain terms, not only that mistake or fraud exists, but also exactly what the parties agreed upon, particularly if the negotiations were conducted by sophisticated, counseled people.
 

For the above reasons, the application to vacate the determination of the Attorney General’s Office is denied, and the Article 78 proceeding is dismissed, and it is further
 

ORDERED that petitioner CRP/Extell Parcel I, L.P., and Stroock & Stroock & Lavan LLP, the escrow agent, are directed to release and return the down payments, together with any accumulated interest, to the individual purchasers within 30 days of receipt of this decision and order; and it is further

ORDERED that the respondent individual purchasers are awarded their costs and expenses in defending this proceeding.

Plaintiff is involved in an assault and battery, and then spends the next umpteen years litigating the case, suing his attorney, relitigating the case, suing the police department, suing his attorney once again.  It all ends in his being enjoined from suing again without court approval.  Only in a pro-se world could this happen.

InBanushi v Epstein ;2012 NY Slip Op 30123(U); ; January 11, 2012; Sup Ct, NY County; Docket Number: 402693/10; Judge: Doris Ling-Cohan

"In May, 1998, Banushi hired Epstein to litigate a case that was already in progress.  The case was based on Banushi’s allegations that he had been assaulted and battered ("the assault case").  At least six (6) cases have been commenced by Banushi related to such alleged assault/battery, including his claims based upon the alleged lack of effective legal representation that he received in litigating the assault case and not including a disciplinary complaint filed against defendants which was dismissed.

Epstein proceeded to represent Banushi in the assault case.  the relationship between client and attorney did not fare well, resulting in Epstein filing a motion to withdraw as counsel, which was granted, prior to the case going to trial.

Epstein alleges that the assault case was ready for trial when he withdrew and that he believes Banushi did not retain new counsel and tried the assault case pro se. After trial, a verdict was rendered in favor of the defendants. Banushi appealed the verdict, which was affirmed and he was denied leave to appeal that decision  Court of Appeals. In 2001, Banushi brought an action for legal malpractice against Epstein in Civil Court Kings County (“the 2001 case”), which resulted in a trial and a judgment in Epstein’s favor.  In 2003, Banushi lodged a complaint against Epstein with the Disciplinary Committee, First Department which, according to Epstein, was summarily dismissed. In 2006, in the United States District Court, Eastern District of New York, Banushi! the City of New York and a New York City police officer alleging that the New York City  Police Department
(NYPD) failed to provide him with a proper report of the assault, thus ability to litigate the assault case. The court determined that the federal and state were time barred and granted summary judgment dismissing the claims.

Thus, defendants’ motion to dismiss is granted and the cross motion to further amend the complaint is denied. The balance of Epstein’s motion is denied, except that Banushi is enjoined from commencing any further lawsuits or making any motions, unless he is represented by counsel if unrepresented, without prior court approval and a copy of this decision shall be provide
such application (see Sibersky v Winters, 42 AD3d 402,404 [lst’ Dept 2007).

Attorneys automatically obtain a charging lien by commencing an action. There are several ways to lose that lien. One is to be terminated "for cause" and another is to withdraw voluntarily. This is different from being "consented out" or by withdrawing with mutual consent. In Nassour v Lutheran Med. Ctr. ;2010 NY Slip Op 07906 ; ;Appellate Division, Second Department we see the difference:
 

"Pursuant to Judiciary Law § 475, "[w]hen an action is commenced, the attorney appearing for a party obtains a lien upon his or her client’s causes of action . . . This lien attaches to any final order [*2]or settlement in the client’s favor" (Matter of Wingate, Russotti & Shapiro, LLP v Friedman, Khafif & Assoc., 41 AD3d 367, 370). "Where an attorney’s representation terminates upon mutual consent, and there has been no misconduct, no discharge for just cause, and no unjustified abandonment by the attorney, the attorney maintains his or her right to enforce the statutory lien" (Lansky v Easow, 304 AD2d 533, 534; see Klein v Eubank, 87 NY2d 459; cf. Matter of Winston, 214 AD2d 677). Where, however, an attorney withdraws without sufficient cause, his or her lien is automatically forfeited (see Hae Sook Moon v City of New York, 255 AD2d 292; Winters v Rise Steel Erection Corp., 231 AD2d 626). Here, Freedhand was not discharged by the plaintiff, but instead voluntarily withdrew. Since Freedhand failed to establish that there was just cause for his withdrawal, the Supreme Court should have vacated that portion of the judicial hearing officer’s determination that Freedhand was entitled to a fee (cf. Robinson v Friedman Mgt. Corp., 49 AD3d 436; Winters v Rise Steel Erection Corp., 231 AD2d 626). "
 

The attorney-client privilege, known to almost all, is a wide-ranging, often applied stricture.  An attorney is not required to disclose communications with a client concerning the representation…almost ever.  There are exceptions, and the one most likely to pop up comes in legal malpractice litigation.  Communications between plaintiff and defendant is (almost) never privileged.  What of communication between plaintiff and subsequent attorneys, who are not sued by plaintiff?

In Soussis v Lazer, Aptheker, Rosella & Yedid, P.C. ;  2012 NY Slip Op 00357 ;  Decided on January 17, 2012 ;  Appellate Division, Second Department we see one such situation.  Here, third-party defendant was not sued by plaintiff and is asked to disclose communications.

 "A waiver of the attorney-client privilege may be found where the client places the subject matter of the privileged communication in issue or where invasion of the privilege is required to determine the validity of the client’s claim or defense and application of the privilege would deprive the adversary of vital information (see Hurrell-Harring v State of New York, 75 AD3d 667, 668; 601 Realty Corp. v Conway, Farrell, Curtin & Kelly, P.C., 74 AD3d 1179, 1179; Raphael v Clune White & Nelson, 146 AD2d 762, 763; Jakobleff v Cerrato, Sweeney & Cohn, 97 AD2d 834, 835). Moreover, a waiver may be found where a party engages in selective disclosure, "as a party may not rely on the protection of the privilege regarding damaging communications while disclosing other self-serving communications" (Village Bd. of Vil. of Pleasantville v Rattner, 130 AD2d 654, 655).

Contrary to the contention of the defendants third-party plaintiffs, under the circumstances presented, the plaintiff did not place the subject matter of the subject e-mail communications in issue and application of the privilege will not deprive them of vital information in defense of her claims. Nor is disclosure of the subject e-mails required under the doctrine of selective disclosure (cf. Orco Bank v Proteinas Del Pacifico, 179 AD2d 390, 390; Village Bd. of Vil. [*2]of Pleasantville v Rattner, 130 AD2d at 655). Accordingly, the Supreme Court properly denied the motion of the defendants third-party plaintiffs to compel the third-party defendant to produce certain e-mail communications withheld from disclosure on the ground that they were protected by the attorney-client privilege.

Attorneys make mistakes.  Sometimes mistakes are fixes, sometimes not.  Rarely do attorneys go to the length of fabricating complaints, making up stories of ongoing litigation and then running away from the disciplinary committee.  We don’t know what defense the attorney might offer, but this tale is both sad and shocking. The attorney in Matter of Gold; Grievance Committee for the Tenth Judicial District ; Motion No: 2011-06543  ;  Slip Opinion No: 2012 NY Slip Op 61346(U)
Decided on January 17, 2012 ; Appellate Division, Second Department, Motion Decision  is now suspended.
 

"We find, prima facie, that the respondent is guilty of professional misconduct immediately threatening the public interest based upon his failure to cooperate with the lawful demands of the Grievance Committee for the Tenth Judicial District (hereinafter the Grievance Committee), with respect to its investigation of one complaint of professional misconduct.

On or about December 6, 2010, the Grievance Committee received a complaint against the respondent submitted by Paul Niehaus, on behalf of his client, David Goldstein. The complaint alleged that the respondent represented Mr. Goldstein in a matter entitled Goldstein v Massachusetts Mutual Insurance Company, commenced in the Supreme Court, New York County, under Index No. 113804/99. Mr. Goldstein, the plaintiff, sought, inter alia, declaratory relief that "the requirement in his disability policy that he be under a doctor’s care and that monthly reports be submitted be deemed waived by defendant." By order dated May 3, 2000, the Supreme Court dismissed the complaint.

On or about February 2, 2005, the respondent commenced another action entitled Goldstein v. Massachusetts Mutual Insurance Company, in the Supreme Court, New York County, under Index No. 2515/05. The verified complaint, dated February 1, 2005, sought a declaratory judgment based, in sum and substance, on the same allegations previously alleged. By order dated August 22, 2005, the court found that the action was barred based on res judicata, as well as the applicable statute of limitations, and the matter was dismissed.

From in or about 2001 through in or about 2006, the respondent allegedly engaged in misleading and deceitful conduct by permitting his client, David Goldstein, to believe that the respondent had commenced a new action on Mr. Goldstein’s behalf in 2001 (hereinafter the purported 2001 action) when, in fact, no new action had been commenced after dismissal of the first action until the commencement of the 2005 action. In response to an inquiry from David Goldstein regarding the purported 2001 action, the respondent, on or about October 29, 2004, forwarded to him copies of a purported amended summons and a purported amended verified complaint, dated November 3, 2003, and on or about January 6, 2006, forwarded to him copies of a purported summons and a purported verified complaint, dated February 12, 2001. None of those pleadings were filed. In response to another inquiry from David Goldstein regarding the purported 2001 action, the respondent, on or about May 3, 2006, forward to him copies of a purported notice of deposition and a purported verified answer, dated April 27, 2001, allegedly submitted by Michael Yoelli, of, Assail & Yoelli, LLP, on behalf of Massachusetts Mutual Insurance Company. Neither the purported notice of deposition, nor the purported verified answer, had been created, prepared or served by Michael Yoelli.

Based on the foregoing, David Goldstein commenced an action against the respondent, on or about December 20, 2006, entitled Goldstein v Gold, in the United States District Court for the Eastern District of New York, under Index No. CV-06-6707, alleging, inter alia, that the respondent had engaged in fraud and legal malpractice. In a Final Judgment by Consent dated November 4, 2010, the respondent consented to the entry of a judgment against him in the amount of $250,000.

By letter dated December 13, 2010, mailed to 5535 42nd Terrace, Vero Beach, Florida 32967 (the business address listed for the respondent with the Office of Court Administration at that time), the Grievance Committee asked the respondent to submit a written answer to the Goldstein complaint. By letter dated December 27, 2010, the respondent submitted an answer and response to a background questionaire. The answer contained another address for the respondent, to wit, P.O. Box 700148, Wabasso, Florida 32970, and the background questionnaire stated that the respondent’s home address was 5535 42nd Terrace, Vero Beach, Florida 32970.

The respondent has neither opposed the Grievance Committee’s motion nor submitted a any response relative thereto."

Based upon the foregoing, the motion is granted, the respondent is immediately suspended from the practice of law, pursuant to 22 NYCRR 691.4(l)(1)(i), pending further order of this Court, the Grievance Committee is authorized to institute and prosecute a disciplinary proceeding against him, and the matter is referred to a Special Referee to hear and report.