Barely submerged below the decisions of trial and appellate courts is the fear that if legal malpractice litigation is given full rein, there will be a legal malpractice case which immediately follows every trial of any nature.  After all, the one thing that legal malpractice always has are claims of attorney misrepresentation, and every trial has one or more attorneys.  So, in Kleinser v Astarita 2012 NY Slip Op 01130 ;Decided on February 14, 2012 ; Appellate Division, First Department  we see such a situation.  Plaintiff sues and loses a case, and then sues and loses a legal malpractice.
 

"We need not decide the statute of limitations issue, because even if timely commenced, plaintiff failed to raise an issue of fact as to his claims of legal malpractice and breach of contract. Plaintiff’s contention that defendants did not place before the trial court in the underlying action the evidence of his ownership interest in the "47BH Account" is unsupported in the record. The trial court in the underlying action expressly found that plaintiff had a 1/3 interest in the 47BH Account. Moreover, the court explained, in detail, that that 1/3 interest entitled plaintiff to recover only $37,108, not the much greater sums he sought. Plaintiff does not argue that the court’s calculation of damages was erroneous or a result of defendants’ negligence. Hence, he failed to show that any negligence on defendants’ part proximately caused him to recover less than he was otherwise entitled to (see Brooks v Lewin, 21 AD3d 731, 734 [2005], lv denied 6 NY3d 713 [2006]). To the extent plaintiff argues that defendants did not sufficiently emphasize his ownership in the 47BH account, the argument is unavailing, since an insufficient emphasis would be, "at most, a mere error in professional judgment not rising to the level of legal malpractice" (see Geller v Harris, 258 AD2d 421, 421 [1999]; Rubinberg v Walker, 252 AD2d 466, 467 [1998]).
As to his breach of contract claims, plaintiff failed to present evidence establishing the term of his alleged oral agreement with defendant Martin Kaplan whereby Kaplan agreed that defendant Gusrae Kaplan & Bruno would prosecute all appeals from the underlying judgment for no more than $50,000. "
 

Client hires law firm, law firm is said to have made mistakes, law firm is said to have made corrective motions based upon its own mistakes, and then charged client. Law firm sues client, and client answers without filing a counterclaim.

Its not evident from the decision but we guess that client then hired an attorney who seeks to change an affirmative defense to a counterclaim for legal malpractice. in addition, attorney seeks to add an employee of the law firm as a "third party" defendant, and asks for a copy of the file and discovery responses. How does Judge Gische of Supreme Court, New York County decide?

In Wagner Divs, P.C. v Gargano ; 2010 NYSlipOp 30156(U) Justice Gische decides:

a. In a regular case, retaining lien trumps need for file

b. In a case with a legal malpractice counterclaim, need for file trumps law firm’s retaining lien

c. Law firm has to allow photocopying

d. Defendant must pay for the copies

e. Amendment should be, and is, freely granted here.

We’ve noted in the past that legal malpractice cases sometimes have a history of legal malpractice within them. As an example, Moray v Koven & Krause, Esqs. 2010 NY Slip Op 07573 ;Decided on October 26, 2010 ;Court of Appeals ;Read, J. serves well. it involves a legal malpractice case levied against a former attorney who was involved in a real estate transaction gone bad. This case fared badly too, until Judge Read delivered the unanimous decision,
 

"On December 31, 2007, plaintiff Joseph Moray commenced this action for legal malpractice, breach of contract and professional negligence against defendant Koven & Krause, Esqs. by filing a summons with notice, which identified Warren Goodman, Esq. as plaintiff’s attorney. The summons with notice was apparently served on defendant on February 5, 2008.

On February 25, 2008, defendant served Goodman with a notice of appearance [*2]and a demand for a complaint. When the demand did not prompt a response, defendant on April 22, 2008 moved to dismiss the action pursuant to CPLR 3012 (b).

By letter dated May 6, 2008, attorney Preston Leschins informed defendant’s professional liability insurance carrier that his office had been "consulted" by plaintiff "in connection with" plaintiff’s claim "with a view towards substituting for" Goodman. The letter characterized Goodman as plaintiff’s "former counsel" who was "no longer practicing law." Leschins asked for "the opportunity to speak with" the carrier about "resolution [of the matter] in an amicable fashion," and at the carrier’s "earliest convenience." Plaintiff was copied on this letter.

On May 23, 2008 — the motion’s return date — defendant’s counsel had a conversation with Goodman, "who advised that he had been suspended from the practice of law months earlier"; at Goodman’s request, defendant’s counsel agreed to adjourn the motion to dismiss until June 13, 2008. Later that day, he spoke to Leschins, "who confirmed that he had consulted with plaintiff weeks earlier," but "refused to state whether he would be appearing as attorney for plaintiff" in the lawsuit.

On or near the adjourned return date, Goodman — indicating that he was mindful that his license had been "suspended on or about January 24, 2008" and was therefore "being careful not to practice law" — submitted a "factual" affidavit in opposition to the motion to dismiss. Styling himself as plaintiff’s "former attorney," Goodman stated that he had "advised [his] former client in writing of [his] situation and told him to get new counsel"; however, he did not say when he did this. Goodman further represented that he "[understood] that [plaintiff had] been diligently pursuing new counsel," but had "not yet retained a new attorney" and was "still continuing to look for a new lawyer."

"On appeal, plaintiff was represented by counsel. His new attorney invoked CPLR 321 (c), which mandates that"[i]f an attorney dies, becomes physically or mentally incapacitated, or is removed, suspended or otherwise becomes disabled at any time before judgment, no further proceeding shall be taken in the action against the party for whom he appeared, without leave of the court, until thirty days after notice to appoint another attorney has been served upon that party either personally or in such manner as the court directs."

On May 12, 2009, the Appellate Division affirmed Supreme Court’s order, concluding that the trial court "did not improvidently exercise its discretion in granting the defendant’s motion to dismiss the action" (62 AD3d 765, 765 [2d Dept 2009]). The court observed that because "plaintiff’s contention that the action was stayed pursuant to CPLR 321 (c) [was] raised for the first time on appeal," it "[was] not properly before [the Appellate Division]." We subsequently granted plaintiff permission to appeal, and now reverse.

The command of CPLR 321 (c) is straightforward: if an attorney becomes disabled, "no further proceeding shall be taken in the action against the party for whom he appeared, without leave of the court, until thirty days after notice to appoint another attorney has been served upon that party either personally or in such manner as the court directs" (emphasis added). As the Practice Commentaries explain, CPLR 321 (c) brings about "an automatic stay of the action," which "goes into effect with respect to the party for whom the [disabled] attorney appeared" (Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR [*4]C321:3, at 183)[FN2]. As a result,

"[d]uring the stay imposed by CPLR 321 (c), no proceedings against the party will have any adverse effect. It lies within the power of the other side to bring the stay to an end by serving a notice on the affected party to appoint new counsel within 30 days . . . If, at the end of the period, the party has failed to obtain new counsel (or elected to proceed pro se), the proceedings may continue against the party" (id.).

The stay is meant to "afford a litigant, who has, through no act or fault of his own, been deprived of the services of his counsel, a reasonable opportunity to obtain new counsel before further proceedings are taken against him in the action" (Hendry v Hilton, 283 App Div 168, 171 [2d Dept 1953] [discussing Civil Practice Act § 240, the predecessor statute to CPLR 321 (c)]).
This lawsuit was automatically stayed by operation of CPLR 321 (c) on January 24, 2008, the date when plaintiff’s attorney was suspended from the practice of law. Defendant never acted to lift the stay by serving a notice upon plaintiff to appoint new counsel within 30 days. Thus, Supreme Court’s order dismissing the action must be vacated (see e.g. Galletta v Siu-Mei Yip, 271 AD2d 486, 486 [2d Dept 2000] ["Since the judgment entered upon the defendants’ default in appearing at trial was obtained without the plaintiff’s compliance with CPLR 321 (c), it must be vacated"]; McGregor v McGregor, 212 AD2d 955, 956 [3d Dept 1995] ["The record reveals no compliance with the leave or notice requirements of CPLR 321 (c). The appropriate remedy for a violation of CPLR 321 (c) is vacatur of the judgment"]). "
 

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."