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). "

Assume the following:  Plaintiff has a medical malpractice case and retains Defendant law firm to handle it.  Defendant law firm works on the case for a while, and as the statute of limitations nears, tells the client that it’s not going to go forward, and that the client should seek other counsel.  Client, who does not have other attorneys ready to go, is unable to bring the action within the statute of limitations.  Is the first attorney liable in legal malpractice, or is the client (in effect) responsible because no new attorney was found. 

in Alden v Brindisi, Murad, Brindisi, Pearlman, Julian & Pertz ("the People’s Lawyer")  ; 2012 NY Slip Op 00580 ; Decided on January 31, 2012 ; Appellate Division, Fourth Department  we see one answer.  
 "Supreme Court properly granted defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) in this legal malpractice action. Accepting as true the facts set forth in the complaint and according plaintiff the benefit of all favorable inferences arising therefrom, as we must in the context of the instant motion (see generally Leon v Martinez, 84 NY2d 83, 87-88), we conclude that the complaint fails to plead a cognizable theory for legal malpractice because it does not permit the inference that any alleged negligence by defendant was a proximate cause of plaintiff’s damages (see Pyne v Block & Assoc., 305 AD2d 213). The proximate cause of any damages sustained by plaintiff was not the alleged legal malpractice of defendant but, rather, the proximate cause of plaintiff’s damages was either "the intervening and superseding failure" of plaintiff to retain successor counsel in a timely manner or the failure of successor counsel to commence a timely medical malpractice action on plaintiff’s behalf (Pyne, 305 AD2d 213). Indeed, we note that the record establishes that defendant afforded plaintiff and her successor counsel "sufficient time and opportunity to adequately protect plaintiff’s rights" (Somma v Dansker & Aspromonte Assoc., 44 AD3d 376, 377; see Maksimiak v Schwartzapfel Novick Truhowsky Marcus, P.C., 82 AD3d 652; Katz v Herzfeld & Rubin, P.C., 48 AD3d 640, 641; cf. Wilk v Lewis & Lewis, P.C., 75 AD3d 1063, 1066-1067)."

Here is a short decision with deep reaching consequences. In Kurman v Schnapp ;2010 NY Slip Op 03786 ;Decided on May 4, 2010 ;Appellate Division, First Department we see the deceitful act of an attorney, and the Appellate Division substituting its finding for that of Supreme Court. We have commented on the natural inclination of attorneys, applying rules of attorney behavior to other attorneys, to minimize and overlook. How, one asks, could Supreme Court have come to such a different conclusion from the Appellate Division?
 

"Plaintiff stated a cause of action under Judiciary Law § 487 by alleging that defendant deceived or attempted to deceive the court with a fictitious letter addressed to him from the former licensing director of the City’s Taxi and Limousine Commission (TLC) that stated, inter alia, that plaintiff was under a lifetime ban on owning any licenses with the TLC (see Amalfitano v Rosenberg, 12 NY3d 8, 14 [2009]). Plaintiff further sufficiently alleged specific damages that could not have occurred in the absence of defendant’s conduct (see id. at 15). The 2008 affidavit by the TLC’s former licensing director offered by defendant in support of his motion fails to demonstrate conclusively that plaintiff has no cause of action (see Lawrence v Graubard Miller, 11 NY3d 588, 595 [2008]).

Plaintiff’s breach of fiduciary duty cause of action is not duplicative of his legal malpractice cause of action, since it is premised on separate facts that support a different theory (see Ulico Cas. Co. v Wilson, Elser, Moskowitz, Edelman & Dicker, 58 AD3d 1, 9-10 [2008]; Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc., 10 AD3d 267, 271 [2004]. As alleged, plaintiff’s breach of fiduciary duty claim arose in December 2006, when defendant commenced his litigation activities against plaintiff in the Westchester County Supreme Court action, and continued through defendant’s 2007 disqualification from representing the Queens Medallion Leasing Inc. defendants, and thereafter. In contrast, plaintiff’s legal malpractice claim is based upon defendant’s alleged 2005 and 2006 "communications with the TLC that may have left the impression that [defendant] was still representing [plaintiff] at that time."
 

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]"