Continuing the trend towards a combination of bankruptcy and legal malpractice, we note that bankruptcy follows, and rarely precedes legal malpractice situations, hence, we expect a swell of the intersection following the financial down-trends of the past year. Here, Tabner v Drake
2009 NY Slip Op 10006; ; Appellate Division, Third Department is an example of how settlement of an underlying case is handled in Bankruptcy Court, even when the attorneys seeking their fee have nothing to do with the bankruptcy. Apparently, individual Drake had carved out a portion of the settlement that was then taken away from him by the Bankruptcy Court, and as a result he would not sign a stipulation and release so that the law firm which had produced the settlement sums might get paid.
 

"In 1998, plaintiffs commenced an action to recover legal fees for services allegedly rendered to defendant Ralph H. Drake Jr.’s residential and commercial real estate business — defendant RHD Construction Corporation. In response, Drake and RHD asserted negligence and malpractice counterclaims against plaintiffs. Multiple pretrial proceedings ensued (see e.g. Tabner v Drake, 9 AD3d 606 [2004]) and, in 2001, Drake filed for bankruptcy under chapter 7 of the Bankruptcy Code.

Shortly after the start of trial, the parties entered into a stipulation of settlement in open court which, among other things, contemplated the exchange of general releases from the parties with respect to all aspects of the litigation. The parties acknowledged that the Bankruptcy Court’s approval of the settlement was required and, in November 2007, the Bankruptcy Court issued an order approving the settlement and authorizing the bankruptcy estate’s trustee to execute general releases in accordance therewith, specifically authorizing the payment of $50,000 to plaintiffs by the trustee. Nevertheless, citing purported inconsistencies between the actual [*2]terms of the settlement and the "Bankruptcy Court approval relative to the amounts to be paid to each defendant," Drake and RHD refused to execute their respective releases. Consequently, plaintiffs moved in Supreme Court for an order directing that defendants execute the releases called for within the agreement and enforcing the stipulation of settlement. Supreme Court granted the motion, prompting this appeal. "

"Accordingly, although the parties agreed to a total settlement of $350,000, with $50,000 going to plaintiffs, $295,000 to RHD and $5,000 to Drake, the Bankruptcy Court properly observed that the bankruptcy estate was the "legal and equitable owner of the litigation whether through [Drake] directly or as the sole shareholder of RHD" (see 11 USC § 541). Its resultant order — that $50,000 be tendered to plaintiffs and $300,000 be tendered to the bankruptcy trustee — thus adequately reflects the terms and conditions of the settlement. In view of the foregoing, we find no reason to disturb Supreme Court’s order."

Attorney fees and legal malpractice should have nothing to do with each other. However, the general rule is that no legal fees may be awarded in the face of legal malpractice and its corollary is that if legal fees are awarded by a court or tribunal, then there could have been no legal malpractice, whether the issue is briefed or not.

Here is another example: Liberty Assoc. v Etkin ; 2010 NY Slip Op 00225 ; Decided on January 12, 2010 ;Appellate Division, Second Department :
 

"In January 2003 the Ravin Firm commenced an action against Liberty Associates in the Superior Court of New Jersey to recover fees for the legal services rendered. In 2004, during the pendency of the instant action, Liberty Associates and the Ravin Firm settled the New Jersey fee dispute action (hereinafter the fee dispute action), which was dismissed with prejudice. Upon learning of the settlement, Etkin moved for summary judgment dismissing the complaint in the instant action. The Supreme Court granted the defendant’s motion. We affirm. ""This action to recover damages for legal malpractice against Etkin, as a member of the Ravin Firm, arises out of the same series of transactions as the fee dispute action asserted by the Ravin Firm against the plaintiff herein for legal fees. Upon resolution of the fee dispute action, the parties, by their attorneys, executed a stipulation of dismissal with prejudice and without costs. A stipulation of discontinuance with prejudice without reservation of right or limitation of the claims disposed of is entitled to preclusive effect under the doctrine of res judicata (see Matter of Hofmann, 287 AD2d 119, 123 ["An order of discontinuance effecting settlement on the merits is accorded the same res judicata effect as the entry of judgment on the merits"]; see also Fifty CPW Tenants Corp. v Epstein, 16 AD3d at 294).

Here, Etkin established, prima facie, that the legal services at issue in the instant action and in the fee dispute action were the same and, thus, that Liberty Associates’ settlement of the fee dispute action with the Ravin Firm, of which Etkin was a member, precludes Liberty Associates from maintaining the instant action against Etkin under the doctrine of res judicata (see Izko Sportswear Co, Inc. v Flaum, 25 AD3d 534, 537)."

"The defendants Alisa Schiff and Schiff & Skurnik, PLLC (hereinafter together the Schiff defendants), who served as the plaintiff’s attorney with respect to the drafting, and the execution by the plaintiff, of a contract to sell her home (hereinafter the contract of sale), and the defendant Michael Gross, who served as the plaintiff’s attorney for the related real estate closing, failed to meet this burden. Contrary to the Supreme Court’s conclusion, the Schiff defendants and Gross failed to demonstrate, prima facie, that the plaintiff did not sustain any actual or ascertainable [*3]damages as a result of their alleged negligence. The contract of sale provided that the purchase price of the plaintiff’s home was $615,000, with the plaintiff to credit the purchaser with the sum of $155,000 at the closing. Approximately $241,000 of the proceeds of the sale went to satisfy the plaintiff’s mortgage, and the plaintiff received approximately $216,000. The Schiff defendants and Gross failed to eliminate triable issues of fact as to the propriety of the $155,000 credit to the purchaser and other disbursements made of the proceeds, and thus, as to whether the plaintiff should have obtained more money for the sale of her home than she received. "  So, in Gelobter v Fox ;2011 NY Slip Op 09268 ; Decided on December 20, 2011 ; Appellate Division, Second Department we see that both sets of defendants failed to clear themselves of potential liability. 
 

"The Schiff defendants failed to meet their prima facie burden on the issue of proximate cause, as they merely established, in this respect, that they did not participate in the real estate closing. However, this fact did not negate any negligence on their part in the drafting of the contract of sale, which the plaintiff signed under Schiff’s representation, and in connection with alleged alterations made to the purchase price on the contract prior to the real estate closing. In other words, as the contract of sale had already been signed and altered before the real estate closing, contrary to the Schiff defendants’ contention, they did not establish as a matter of law that Gross had "a sufficient opportunity to protect the plaintiffs’ rights" (Katz v Herzfeld & Rubin, P.C., 48 AD3d 640, 641), such that Schiff’s conduct could not have proximately caused the plaintiff’s damages. "

Broadway investors often take a big chance.  they put up large sums of money in the hope that the show will be a big hit.  Sometimes the show fails, and sometimes the show closes before it opens.  Here plaintiff-investor lost $ 100,000 right off the bat.  Then there was a legal malpractice case over who owned the rights to the Show.  Worse, he loaned $ 100,000 to an attorney, and the attorney was playing with him.

COREY FRIEDMAN, Plaintiff, -against- MARK SCHWARTZ, Defendant.;CV 08-2801 (WDW)  UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK;2011 U.S. Dist. LEXIS 144925December 16, 2011 is an otherwise straight-forward story of a contract and the denouement. 

"Plaintiff was introduced to Defendant by Auslander. Trial Transcript ("Tr.") at 4. Defendant was a Broadway producer who was putting together a show to be named "Harmony [*3] on Broadway." Tr. 4. Auslander thought Plaintiff would be interested in investing. Id. Plaintiff met with Defendant in summer 2003 at Sardi’s restaurant in Manhattan. Tr. 5. Prior to that meeting, Defendant had called Plaintiff to discuss the show, explaining that Barry Manilow had written the music for it, and Barry Sussman had written the book. Tr. 5. Plaintiff and Defendant had another meeting a few weeks later during which Plaintiff introduced Defendant to a colleague who also expressed an interest in investing. Tr. 6.

In late September of 2003, Plaintiff invested $100,000 in Harmony on Broadway LLC. Tr. 6. The funds were wired through Auslander to an account for Harmony on Broadway LLC at JP Morgan Chase, located at 3 Times Square, New York, New York. Tr. 8. He then received a packet in the mail showing him to be a limited partner in the LLC. Tr. 8. Plaintiff’s ultimate return would be determined by the show’s profits and the final number of investors. Tr. 9.

Defendant solicited additional monies from Plaintiff. Tr. 6. According to Plaintiff, Defendant was anticipating funding from Barry Manilow’s record company, Concord Records, and was looking for investors to provide short-term [*4] loans until that money came in. Tr. 9-10.

Plaintiff alleges that, on October 3, 2003, he made a loan of $100,000 to Defendant. Tr. 36. According to Plaintiff, Defendant requested the loan as a short-term, personal loan until other investments were received. Tr. 10. Plaintiff testified that Defendant was willing to provide a lien on his residence in Florida to secure the loan and provide Plaintiff with ten percent interest over the life of the loan. Id. According to Plaintiff, Defendant’s girlfriend, a Florida attorney, would draft the security document for the loan. Tr. 11. Defendant claimed that he had provided a similar security document for a larger investment and would do the same for Plaintiff. Id.

Similar to the money-transfer process for the investment in the play, the funds were wired from Auslander to an account for Harmony on Broadway LLC. Tr. 13. Plaintiff testified that Defendant needed the money right away to keep the show in business and that time was of the essence. Tr. 13, Tr. 15. Auslander testified that the money was wired to an account for Harmony on Broadway LLC in the interests of time, due to the protocols of Charles Schwab and Company requiring three to five business [*5] days to set up wiring instructions for a new account. Tr. 48. According to Auslander, Defendant would not have accepted anything but a personal loan at the time the second investment was made because Defendant did not want to dilute his interest in the production by selling additional units to investors. Tr. 46-47. Furthermore, Auslander stated that Defendant told him that he was "incredibly relieved and very thankful" for the personal loan and admitted to him that Plaintiff "bailed him out and bellied up to the bar." Tr. 49.

On October 27, 2003 Plaintiff emailed Defendant inquiring why he had not yet received the document securing the "$100,000 personal loan that [Defendant] guaranteed with [his] home as collateral." Plaintiff Exhibit ("P. Ex.) 7. Defendant responded to Plaintiff on October 27, 2003 stating, "I agree with you corey [sic], and called you this morning, left a message at yor [sic] home and on your cell, I’ll take care of it, promise and sorry you have been great! and you have my word, which is most important." P. Ex. 8. Plaintiff never received legal documentation securing the loan nor any documentation evidencing that the loan was a corporate debt. Tr. 17-18.

Defendant [*6] failed to secure financing from Concord Records and the show closed before it was opened. Tr. 18. Plaintiff, like the other investors in the production, lost his $100,000 investment in the show without recovering any money. Tr. 18-19. Plaintiff testified that subsequent to the show closure, Barry Manilow and Bruce Sussman commenced litigation to secure their rights to the show and succeeded in securing those rights. Tr. 19. The producers and investors of the show then sued to win those rights back from Manilow and Sussman, but their claims were denied because they were not filed on time. Tr. 19-20. Subsequently, a legal malpractice suit was commenced by the producers against their former attorney, Robert Barandes. Tr. 20. Plaintiff testified that Defendant acted as a "conduit" between the lawyers and the investors throughout the litigation. Id."
 

Plaintiff retained defendant to represent him in a matrimonial action.  In the end, he was just too poor to get divorced.  The divorce action ended in a settlement, and the marriage remained intact.  Now, plaintiff husband sues attorney, and is defeated by documentary evidence that completely contradicts plaintiff’s position and is successful on motion to dismiss.

Faath v Roth ;2011 NY Slip Op 33366(U); December 12, 2011 ;Supreme Court, Nassau County
Docket Number: 003912/11; Judge: Joel K. Asarch.

"The plaintiff in this action seeks to recover damages for legal malpractice. As and for his first cause of action, he alleges that he retained the defendant to represent him "in connection with
a matrimonial matter" and that the defendant "failed to properly represent (him)." He alleges that
as a result of the defendant’s malpractice , he "is still married" and that he "was pressured by the
defendant into executing an agreement with his wife which the defendant failed to explain to him
and which is of doubtful enforceability. " He seeks damages in the minimum amount of $1 00 000.
As and for his second cause of action, he alleges that the defendant’s charges were excessive and that he billed for work not performed. He seeks damages of a minimum of $40 000.

The only damages alleged by the plaintiff is that he is "still married." To baldly equate remaining married" with damages is inappropriate and unacceptable. The plaintiff s failure to plead actual ascertainable damages which were proximately caused by the alleged malpractice requires dismissal of a legal malpractice claim under CPLR 3211 (a)(7). Wald v Berwitz 62 AD3d 786 (2
Dept 2009), citing Rudolf v Shayne. Dachs. Stanisci. Corker & Sauer, 8 NY3d 438 442 (2007);
Cummings v Donovan, 36 AD3d 648 (2 Dept 2007).

In any event, the defendant lawyer cannot be faulted for the plaintiff s continued marred status. The Settlement Agreement which was signed by the plaintiff precludes such a finding. It provides:
Each party has had a full opportunity and has consulted at length with his or her attorney regarding all of the circumstances hereof and acknowledge that this Agreement has not been the result of any fraud, duress or undue influence exercised by either party upon the other or by any other person or persons upon the other.  More importantly, the plaintiff signed a detailed letter by counsel dated June 19 2008 which provides that the terms of the Separation Agreement were negotiated by him and he has required  that  they be included in it; that he realized he will continue to be married; that it is his desire that the divorce action be discontinued so that he could live under the terms of the Agreement; and that he had advised counsel that "it is not economically feasible for (him) to be divorced. " It further notes that the Separation Agreement is very risky as it relies too much on the parties ‘ good faith; that it may not be enforced in court; and, that it is a product of his and his wife s negotiations with little legal input. In sum, the letter by the defendant attorney states:

I have attempted to do my best within the parameters and guidelines you have set. However, you have precluded me from attempting to fully protect you under the terms of this agreement. I have done all possible within those guidelines and parameters. You have limited the amount of negotiation and you are satisfied with the terms of the agreement as they are presently written.
I have given you every opportunity to review this agreement in detail and to ask any questions you desire. You have had the opportunity to review this agreement and ask the questions and had sufficient time to digest the terms of this agreement, it is my understanding from speaking to you, that you have fully read the agreement.  If you have any questions, now is the time to ask prior to executing this agreement, which will be binding upon you and your spouse.  The plaintiff acknowledged as follows: I have read the separation agreement and I am familiar with the terms. I am executing same voluntarily and under no duress and over the advice of my  counsel as set forth in this letter. In a follow-up letter by the defendant lawyer dated December 8, 2008 which was again
signed by the plaintiff, counsel cautions that contract law, not the Domestic Relations Law, would
apply to the agreement and warned that there was no telling what a court would do if called upon to
enforce some of the provisions. In sum, the defendant lawyer warned:  You have expressed your willingness to settle this matter under the terms of the  agreement. Although, I disagree with many of the terms contained therein, you still wish to proceed under the terms of the settlement agreement as written. Settling this matter just to settle is not the right choice. However, based upon
your desire to settle under the terms as written, I will permit you to execute the  agreement over my objection. In combination with the Settlement Agreement, the letters submitted by the defendant
attorney which were signed by the plaintiff flatly refute any claim by him that he remained married
or was otherwise damaged on account of the defendant’ s negligence. See Malarkey v Piel supra

It is said that problems, or bad things, come in threes. In this example, the client lost a contract action, in which he had good counterclaims, because of his attorney’s failures. Plaintiff then sues the attorney, and in Benson Park Assoc., LLC v Herman ; 2010 NY Slip Op 03847 ;Decided on May 6, 2010 ;Appellate Division, First Department the defendant attorney defaulted on an answer. Then, the attorney for defendant apparently defaulted on the motion for partial summary judgment itself.
"In the underlying action, defendant failed timely to file an answer on behalf of plaintiff, and a default judgment was entered against it (Mega Constr. Corp. v Benson Park Assoc. LLC, 60 AD3d 826 [2d Dept 2009]).

A party seeking to vacate a judgment on the basis of excusable default must demonstrate both a reasonable excuse and a meritorious defense (Mutual Mar. Off., Inc. v Joy Const. Corp., 39 AD3d 417, 419 [2007]). The court properly denied defendant’s third request for an adjournment of plaintiff’s motion for
partial summary judgment (see Matter of Desmond K. v Kevin K., 59 AD3d 240 [2009], lv denied 12 NY3d 711 [2009]; Treppeda v Treppeda, 212 AD2d 592 [1995]). While in support of the motion to vacate the default, defendant claimed that he had had a "previously scheduled engagement," he offered nothing to substantiate this claim. Moreover, at no time after the motion for partial summary judgment was submitted did defendant seek leave to submit opposition. In addition, defendant failed to offer a meritorious defense to the malpractice claim, other than to question the amount of damages. "

PROTOSTORM, LLC and PETER FAULISI, Plaintiffs, -against- ANTONELLI, TERRY, STOUT & KRAUS, LLP, DALE HOGUE, FREDERICK D. BAILEY, CARL I. BRUNDIDGE, and ALAN SCHIAVELLI, Defendants/Third-Party Plaintiffs, -against- KATHY WORTHINGTON, Third-Party Defendant/Cross-Claimant, -against- DUVAL & STACHENFELD LLP and JOHN J. GINLEY, III, Third-Party Defendants/Cross-Defendants is the story of attorneys taking on work, and then blithly going about their day, placing payment of bills before working for the client. 
 

Plaintiffs had what they believed to be a very valuable invention, and hired a series of attorneys to file and follow up on the patents.  The process ended in failure.  "Plaintiff Peter Faulisi ("Faulisi") along with non-party Courtland Shakespeare ("Shakespeare") wanted to market and patent an invention they believed would be very valuable through their company Protostorm.com, LLC ("Protostorm").2 They enlisted the help of several lawyers—the Defendants and Third-Party Defendants. As a result of some combination of negligence and miscommunication the patent application was abandoned. Plaintiffs, invoking the court’s diversity jurisdiction, bring claims for legal malpractice and breach of fiduciary duty."

This 25 page opinion is well worth reading, if only for the description of cavalier behavior, refusal to do work until the last bill is paid, and a general sense of entitlement that wafts from the page.  It ends:

"For the reasons stated above, Defendants’ motion for summary judgment is GRANTED as to Plaintiffs’ breach [*57] of fiduciary duty claim but DENIED as to Plaintiffs’ malpractice claim. Plaintiffs’ motion for summary judgment as to certain elements of its malpractice claim is GRANTED, as set forth above. Third-Party Defendants’ motions for summary judgment are GRANTED as to Third-Party Plaintiffs’ indemnification claims, but DENIED as to Third-Party Plaintiffs’ contribution claims. Similarly, D&S’s and Ginley’s motion for summary judgment as to Worthington’s indemnification claims are GRANTED, but summary judgment is DENIED as to Worthington’s contribution claim. In sum, malpractice claims against the Defendants and Third-Party Defendants, in connection with the abandonment of Plaintiffs’ patent application, shall go forward."

This US District Court case explores the boundary between civil and criminal matters, and how representation in both is parsed during a later legal malpractice case.  ALLEN WOLFSON, Plaintiff, -against- CHRISTOPHER BRUNO, Defendant;  08 Civ. 0481 (AJP); UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK; 2011 U.S. Dist. LEXIS 144978;  December 16, 2011.

"Wolfson contacted attorney Bruno3 in October 2002 and formally retained his legal services on October 24, 2002 for his criminal case, United States v. Wolfson, 00 Cr. 0628, known as the "Five Stock Indictment" case. (Bruno Rule 56.1 Stmt. ¶¶ 1-2;4 Bruno Aff. ¶¶ 7-8, 10 & Ex. A: Rep. Agreement.) Wolfson was convicted by a jury on all counts in March 2003. (Bruno Rule 56.1 Stmt. ¶ 3; Bruno Aff. ¶ 11.)

On May 30, 2003, Wolfson and Bruno entered into a second representation agreement "intended for the resolution of these additional matters by way of a global settlement in order to minimize ultimate criminal and civil exposure." (Bruno Rule 56.1 Stmt. ¶¶ 4, 7-10; Bruno Aff. ¶¶ 15-19 & Ex. B: 2d Rep. Agreement.) The "additional matters" were: (1) United States v. Wolfson, 02 Cr. 1588 [*5] ("Freedom Surf Indictment"), an unrelated criminal stock fraud case before Judge Hellerstein in this District; (2) an unrelated criminal stock fraud investigation conducted by the U.S. Department of Justice’s Criminal Fraud Unit in Washington, DC ("DOJ Investigation"); (3) In re Wolfson, Securities Act Release No. 8614, Exchange Act Release No. 52480 (Sept. 21, 2005) ("SEC-AP"), an administrative proceeding, parallel to the Five Stock Indictment case, before the SEC in Washington, DC; and (4) SEC v. Wolfson, 02 CV 1086 ("SEC-Utah"), a civil case in U.S. District Court for the District of Utah, parallel to the Freedom Surf Indictment criminal case. (Bruno Rule 56.1 Stmt. ¶¶ 5, 9; Bruno Aff. ¶¶ 15, 18 & Ex. B.) The second representation agreement stated:
It is agreed and understood that representation by the firm pursuant to this Representation Agreement does not include the trial of any of the above-referenced matters. It is further agreed that, if for some unforseen reason any of these matters were to proceed to trial, a new retainer would have to be agreed upon.
(Bruno Aff. Ex. B: 2d Rep. Agreement.)

In the Freedom Surf Indictment case, in June 2003 Bruno offered that Wolfson would cooperate [*6] with the Government against the remaining defendants. (Bruno Rule 56.1 Stmt. ¶ 15; Bruno Aff. ¶¶ 23-25.) Wolfson and Bruno attended a Kastigar session with Assistant United States Attorneys (AUSA) David Esseks and Robert Holtz and the lead FBI agent, and Wolfson detailed his and others’ involvement. (Bruno Rule 56.1 Stmt. ¶ 15; Bruno Aff. ¶¶ 24-25.) On January 21, 2004, Wolfson formally entered a guilty plea. (Bruno Rule 56.1 Stmt. ¶ 16; Bruno Aff. ¶ 26.) In February 2004, the Freedom Surf Indictment criminal case was consolidated with the Five Stock Indictment case for comprehensive sentencing before Judge Koeltl. (Bruno Rule 56.1 Stmt. ¶¶ 6, 17; Bruno Aff. ¶¶ 14, 27 & Ex. C: Bruno 2/9/04 Letter to Court.)

Throughout 2003 and into 2004, Bruno interceded with the federal prosecutors resulting in the DOJ Investigation being dropped without Wolfson being indicted. (Bruno Rule 56.1 Stmt. ¶ 18; Bruno Aff. ¶ 28.)

In the SEC-AP case, Wolfson agreed to settle with the SEC in June 2005, and the Order was filed on September 21, 2005. (Bruno Rule 56.1 Stmt. ¶¶ 21, 23; Bruno Aff. ¶¶ 31-33, 35-36, 38-39 & Ex. F: SEC Settlement Order.) In the settlement, Wolfson agreed to a consent decree that neither [*7] admitted nor denied the underlying civil allegations, the SEC waived all aspects of a monetary judgment due to Wolfson’s inability to pay, and Wolfson agreed to conduct-related bars with a right to reapply for removal in the future. (Bruno Rule 56.1 Stmt. ¶ 22; Bruno Aff. ¶¶ 33-38 & Ex. F: SEC Settlement Order ¶ IV.)

In the SEC-Utah case, Bruno alleges that he negotiated a settlement similar to that in the SEC-AP case. (Bruno Rule 56.1 Stmt. ¶¶ 29-30; Bruno Aff. ¶¶ 41-42.) Bruno alleges that he kept Wolfson apprised of the settlement discussions and that Wolfson authorized Bruno to accept the settlement offer. (Bruno Rule 56.1 Stmt. ¶ 31; Bruno Aff. ¶¶ 43-44.) Wolfson, however, alleges that Bruno never communicated the SEC’s settlement offer to him. (Dkt. No. 48: Wolfson Opp. Br. at 2, 3.)

Meanwhile, in September 2005, Wolfson sent a letter to Avraham Moskowitz, his former counsel in the Five Stock Indictment case, asserting that Bruno and Moskowitz were conspiring with the prosecutors to secure his convictions in the consolidated criminal cases. (Bruno Rule 56.1 Stmt. ¶ 32; Bruno Aff. ¶¶ 45-46; Wolfson Opp. Br. at 3-4.) Moskowitz forwarded Wolfson’s letter to Bruno and to AUSA Esseks, [*8] who forwarded it to Judge Koeltl. (Bruno Aff. ¶ 45 & Ex. H: Bruno 9/9/05 Letter to Court; Wolfson Opp. Br. at 4.) Judge Koeltl appointed Nancy Ennis to serve as Wolfson’s Curcio counsel; she informed Judge Koeltl that Wolfson maintained his conspiracy theory even though she was unable to discern a basis for the allegations. (Bruno Aff. ¶¶ 47-48; Wolfson Opp. Br. at 4.) Recognizing an inherent conflict of interest in further representation, Judge Koeltl appointed James Cohen to represent Wolfson in the consolidated criminal cases on September 21, 2005 and relieved Bruno as Wolfson’s counsel. (Bruno Rule 56.1 Stmt. ¶ 33; Bruno Aff. ¶¶ 48-49; Wolfson Opp. Br. at 4.) Wolfson asserts that Bruno was dismissed because he was violating his fiduciary duty due to the alleged conspiracy. (Wolfson Opp. Br. at 1.) Moreover, Wolfson alleges that he "never terminated his relationship with [Bruno] when [he] put forth his conspiracy theory to judge [sic] Koeltl." (Wolfson Opp. Br. at 2.)"
 

"Wolfson presents no facts giving rise to an inference that Bruno committed legal malpractice. (See Dkt. No. 48: Wolfson Opp. Br.) The mere fact that Wolfson is unhappy with the results of his civil cases does not mean that Bruno was negligent.11 Wolfson’s belief that Bruno "violate[d] his ethical duty" and deviated from "[]good and accepted legal practice" (Wolfson Opp. Br. at 5) is insufficient to defeat Bruno’s summary judgment motion, absent any facts to support Wolfson’s ipse dixit.

FOOTNOTES

11 Wolfson [*23] reasserts that Bruno committed malpractice with regard to Wolfson’s criminal cases. (E.g., Wolfson Opp. Br. at 1.) The Court does not address these arguments because the claims relating to Bruno’s representation of Wolfson in criminal cases was dismissed. (See page 1 n.1 above.) See also, e.g., Wolfson v. Moskowitz, 08 Civ. 8796, 2009 WL 1515674 at *2, *5 (S.D.N.Y. June 1, 2009) ("[U]nder New York law, a party cannot maintain a cognizable claim for legal malpractice in connection with representation provided in a criminal case when his conviction still stands. Thus, because Wolfson has not had his conviction vacated . . . , he fails to state a claim for malpractice and his complaint must be dismissed." (citations omitted)).

Wolfson also argues that Bruno caused him to suffer economic harm through the seizure of his assets. (Wolfson Opp. Br. at 2-3.) The Court does not address this issue because the seizure was the result of an unrelated case brought against Wolfson’s son David Wolfson, who voluntarily turned over the assets in settlement. (Bruno Reply Br. at 6-7.) In addition, Wolfson asserts that Bruno lied about his previous legal experience and misinterpreted the law (Wolfson Opp. [*24] Br. at 2, 4); however, Wolfson does not show that the result of the SEC-Utah case would have been different absent Bruno’s alleged misconduct.

After Wolfson submitted his conspiracy theory, the only unresolved civil matter was the SEC-Utah case. (See pages 5-6 above.) Wolfson argues that he "never terminated his relationship with [Bruno] when [he] put forth his conspiracy theory to judge [sic] Koeltl." (See page 5 above.) Wolfson argues that he was never informed of any potential settlement in the SEC-Utah case, that he "never terminated defendant in the Utah or Washington case and and [sic] was by contract required to represent Plaintiff," and that Bruno "never put the court on notice that he ws [sic] retained by plaintiff . . . [or] thathe [sic] resigned and ask [sic] to be removed." (Wolfson Opp. Br. at 3.)

First, it is inconceivable that a reasonable client, having accused an attorney of conspiring with the prosecutors against him in a criminal case, would expect that attorney to continue to represent him in a related civil matter. "As between attorney and client, no special formality is required to effect the discharge of the attorney. Any act of the client indicating an unmistakable [*25] purpose to sever relations is enough." Decker v. Nagel Rice LLC, 09 Civ. 9878, 2010 WL 2346608 at *6 (S.D.N.Y. May 28, 2010) (quotations omitted); see, e.g., Pandozy v. Robert J. Gumenick, P.C., 07 Civ. 1242, 2008 WL 2190151 at *3 (S.D.N.Y. May 23, 2008); Quinones v. Miller, 01 Civ. 10752, 2003 WL 21276429 at *29 n.49 (S.D.N.Y. June 3, 2003) (Peck, M.J.) ("'[T]he attorney-client relationship is terminated only by the occurrence of one of a small set of circumstances . . . [including] acts inconsistent with the continuation of the relationship (e.g., the client’s filing a grievance with the local bar association against the attorney) . . . .’") (citation omitted), report & rec. adopted, 2005 WL 730171 (S.D.N.Y. Mar. 31, 2005), aff’d, 224 F. App’x 44 (2d Cir. 2007); Rudow v. Cohen, 85 Civ. 9323, 1988 WL 13746 at *2 (S.D.N.Y. Feb 18, 1988).

Second, Wolfson’s argument — that Bruno was never relieved by the court in the SEC-Utah case — fails because a review of the docket sheet in the SEC-Utah case shows that Bruno had never entered an appearance for Wolfson in that case. (See SEC-Utah Dkt. Sheet, No. 02-CV-01086.)

Third, Wolfson clearly knew that Bruno was no longer representing him in the [*26] SEC-Utah case: Wolfson stated in his pro se filings in that case that he had fired Bruno. (See page 6 above.) Wolfson opposed the SEC’s summary judgment motion with pro se filings. There was no "default" of any sort entered against Wolfson in the SEC-Utah case.

Finally, and most importantly, Wolfson cannot show that the result in the SEC-Utah case would have been any different but for Bruno’s actions (or failure to act). A review of the SEC-Utah docket sheet reveals that because the SEC-Utah case was stayed for a period because of the criminal case in New York, nothing affecting Wolfson in that case occurred until the SEC moved for summary judgment.12 Once the SEC filed its summary judgment motion, Wolfson appeared in the case pro se. Judge Campbell granted summary judgment to the SEC because of Wolfson’s guilty plea in the New York criminal cases (which, as noted above, cannot be challenged in this action). Judge Campbell held that "Mr. Wolfson has already admitted under oath–in the criminal proceeding against him–that he took the actions that form the basis of the SEC’s current, civil complaint against him." SEC v. Wolfson, No. 2:02 CV 1086, 2006 WL 1214994 at *1 (D. Utah May 5, 2006); [*27] see also, id. at *2 ("In his [criminal case] allocution, Mr. Wolfson admitted under oath that he agreed to take steps to artificially inflate the price of Freedom Surf stock. . . . According to Mr. Wolfson’s sworn statement, he ‘agreed to raise the price of the stock in order to defraud investors’ and that ‘[t]he whole purpose of this was to enrich [himself] as well as others.’"); id. at *6 ("[T]he centerpiece of the evidence against Mr. Wolfson is the transcript of Mr. Wolfson’s [guilty plea] allocution, wherein he admits under oath to the salient facts underlying the SEC’s claims . . . . In short, Mr. Wolfson has admitted under oath to all the elements of the fraud allegations alleged in the SEC’s Complaint.")."