is it legal malpractice for an attorney to answer a information subpoena concerning his retainer agreement with a client if the answer does not contain privileged communications?  We will not know the answer to this question from GREGORY P. MORSON, Plaintiff, -against KREINDLER & KREINDLER, LLP, Defendant.09 CV 2994 (DRH)(ARL)UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK, 2011 U.S. Dist. LEXIS 112310;September 28, 2011, Decided because plaintiff waited too long to bring the action.
 

"Plaintiff’s claims arise out of events that occurred during defendant’s legal [*2] representation of plaintiff (or "Morson") and his sister, Vanessa Morson, (collectively, the "Morsons"), who served as the co-administrators of their mother’s estate. The subject representation involved a 1996 case brought in this District alleging wrongful death against the Libyan government for its involvement in the 1988 bombing of Pan American Airlines flight 103 over Lockerbie, Scotland (the "Lockerbie action").2 See Morson v. The Socialist People’s Libyan Arab Jamahirya, No. 96 CV 2077 (TCP) (E.D.N.Y). In October 2002, a conditional settlement agreement was reached between the parties in that action that relied on the occurrence of three "triggering events," the details of which are not relevant for present purposes. (Statement of Undisputed Material Facts, pursuant to Local Civil Rule 56.1 ("56.1 Stmt.") ¶¶ 20-21.) Kreinder & Kreindler LLP represented many of the victims’ families in the Lockerbie action. (Rule 56.1 Statement ¶ 11.)

Prior to this conditional settlement, on December 26, 2001, judgment was entered against Morson for approximately $1.7 million in a separate lawsuit in the Southern District of New York. (56.1 Stmt. ¶¶ 24, 27); See Palazzetti Import/Export, Inc. v. [*3] Morson, No. 98 CV 722 (FM) (S.D.N.Y.)(the "Palazzetti action"). The judgment was later affirmed on appeal at some point in 2002. (56.1 Stmt. ¶ 28.) Kreindler & Kreindler LLP did not represent Morson in that action.

In late 2002, Morson and one Sergio Palazzetti began direct settlement negotiations without the aid of counsel regarding payment of the Palazzetti judgment. (56.1 Stmt. ¶ 34.) During these talks, Palazzetti indicated that he "would be amenable to settle for $500,000 in cash," as a lump sum, (Deposition of Sergio Palazzetti ("Palazzetti Dep.") at 58-69, D’s Ex. I), though no final agreement was entered into by the two men at that time. (See Deposition of Gregory Morson ("Morson Dep.") at 46-47, D’s Ex. G; see also Palazzetti Dep. at 51 ("The only thing I remember is that when we actually sort of agreed on the 500,000 number.").)

Around that same time, Palazzetti discussed with his attorney, Debra J. Guzov, what Palazzetti had learned primarily through the news media, viz., that Morson was involved in the Lockerbie action, that settlement talks were underway between the parties, and that Morson was potentially entitled to a large payout in that case. (56.1 Stmt. ¶¶ 22, 30; Palazzetti [*4] Dep. at 34-36.) Guzov then served Kreindler & Kreindler LLP with a "Restraining Notice," pursuant to N.Y. CPLR 5222, requesting that the firm complete an attached questionnaire concerning Morson’s current and potential assets. On January 15, 2003, James P. Kreindler ("Kreindler") completed the questionnaire and returned it to Guzov. (Pl’s Ex. 4.) In his response, Kreindler provided the following statement relevant to this suit: "We filed suit arising from the death of Eva I. Morson against Libya in 1996. We have a written settlement agreement which goes into effect when Libya complies with the United Nations requirements. Settlement not less than $5 million nor more than $10 million." (Pl.’s Ex. 5.)

Meanwhile, Palazzetti had informed his "trial counsel," Michael Regan (who had a lien on any judgment in the Palazzetti action), that he had discussed settling the Palazzetti action with Morson for $500,000. According to Palazzetti’s testimony, Regan informed him that he learned from Guzov that the Lockerbie action "would be resolved positively for the Morsons very soon," and that he should not settle for less than the judgment. (Palazzetti Dep. at 58) Shortly thereafter, Palazzetti communicated [*5] to Morson that he would no longer settle the judgment for $500,000. Palazzetti testified that he changed his position because he "was told that [he] could get the whole amount in a fairly short time." (Palazzetti Dep. at 9, 64.)

The Morson’s eventually recovered $10 million from the Lockerbie action (56.1 Stmt. ¶ 32; D’s Ex. L.), and Palazzetti collected the entire amount of his judgment from Morson, (Pl.’s Ex. 7)."
 

"As to the date of accrual of the malpractice claims, New York looks to the date in which the malpractice was committed, while Illinois and Massachusetts consider the date in which the plaintiff discovers his or her injury arising out of such misconduct. McCoy v. Feinman, 99 N.Y.2d 295, 301, 785 N.E.2d 714, 755 N.Y.S.2d 693 (2002) (A claim accrues "when all the facts necessary to the cause of action have occurred and an injured party can obtain relief in court." (citing Ackerman v. Price Waterhouse, 84 N.Y.2d 535, 541, 644 N.E.2d 1009, 620 N.Y.S.2d 318 (1994))); Shumsky v. Eisenstein, 96 N.Y.2d 164, 166, 750 N.E.2d 67, 726 N.Y.S.2d 365 (2001) (citing Glamm v. Allen, 57 N.Y.2d 87, 95, 439 N.E.2d 390, 453 N.Y.S.2d 674 (1982)("What is important is when the malpractice [*17] was committed, not when the client discovered it.")); Hester v. Diaz, 346 Ill. App. 3d 550, 553, 805 N.E.2d 255, 281 Ill. Dec. 887 (Ill. App. Ct. 5th Dist. 2004)("In Illinois, the statute of limitations for legal malpractice is two years ‘from the time the person bringing the action knew or reasonably should have known of the injury for which damages are sought.’" (citing 735 Ill. Compiled Statutes 5/13-214.3(b))); Lyons v. Nutt, 436 Mass. 244, 247, 763 N.E.2d 1065 (Mass. 2002)("The statute of limitations applicable to a legal malpractice claim begins to run when a client ‘knows or reasonably should know that he or she has sustained appreciable harm as a result of the lawyer’s conduct.’" (citing Williams v. Ely, 423 Mass. 467, 473, 668 N.E.2d 799 (1996))). Here, the purported malpractice was committed by defendant, and the resulting injury was discovered by plaintiff in or around January 15-22, 2003. See discussion supra. Plaintiff’s malpractice claims therefore accrued under the law of all three states during that period."
 

When practitioners in Legal Malpractice stay in the area long enough, older cases they handled come back to save or haunt them. A prime example isDeNatale v Santangelo ; 2009 NY Slip Op 06398 ;; Appellate Division, Second Department . Here the defendant law firm wins dismissal based upon a now well known case. In that case, defendant attorney lost the motion and the appeal, here, based on the same law, defendant attorney wins.
 

The case in common is Barnett v Schwartz ;2007 NY Slip Op 09712 [47 AD3d 197] . Important language there: "The elements to be proved in a legal malpractice action have been subjected to various formulations. Thus, while it is clear that a plaintiff-client must prove negligence (i.e., that the defendant-attorney failed to exercise that degree of care, skill, and diligence commonly possessed and exercised by members of the legal community), some cases hold that the negligence must be "the" proximate cause of damages (Britt v Legal Aid Socy., 95 NY2d 443, 446 [2000]; see e.g. Kleeman v Rheingold, 81 NY2d 270 [1993]; Caruso, Caruso & Branda, P.C. v Hirsch, 41 AD3d 407 [2007]; Cohen v Wallace & Minchenberg, 39 AD3d 691 [2007]; Cummings v Donovan, 36 AD3d 648 [2007]; Kotzian v McCarthy, 36 AD3d 863 [2007]), while others hold that it must be "a" proximate cause of damages (Bauza v Livington, 40 AD3d 791, 793 [2007]; see e.g. Moran v McCarthy, Safrath & Carbone, P.C., 31 AD3d 725 [2006]; Terio v Spodek, 25 AD3d 781 [2006]; Pistilli v Gandin, 10 AD3d 353 [2004]). There are also cases from this Court requiring the damages to be a "direct result" of the negligence (Caruso, Caruso & Branda, P.C. v Hirsch, 41 AD3d 407, 409 [2007]; Kotzian v McCarthy, 36 AD3d 863 [2007]; Moran v McCarthy, Safrath & Carbone, P.C., 31 AD3d 725 [2006]). In the main, the cases from the Court of Appeals, including the most recent, do not expressly require that the negligence be either "the" or "a" proximate cause of damages, but require proof that, "but for" the negligence of the defendant-attorney, the plaintiff-client would have prevailed in the underlying action (in a classic lawsuit-within-a-lawsuit scenario) or would not have incurred damages (in an action alleging negligent advice, etc.) (see e.g. Leder v Spiegel, 9 NY3d 836 [2007]; Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438 [2007]; AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428 [2007]; Davis v Klein, 88 NY2d 1008 [1996]; Carmel v Lunney, 70 NY2d 169 [1987]). The defendants here, while not expressly describing the difference between proximate and "but for" causation, argue that the latter requires a greater, more direct degree of causation. However, we find no substantive{**47 AD3d at 204} import to the variations in the formulations discussed above, and hold that a plaintiff-client in a legal malpractice action need prove only that the defendant-attorney’s negligence was a proximate cause of damages. "

"Moreover, our reading of the case law does not reveal that a heightened standard for causation is actually being applied in legal malpractice cases. Rather, all results can be explained by application of general principles of proximate cause.""In sum, regardless of the formulation employed, a plaintiff in a legal malpractice action need prove only that the defendant-attorney’s negligence was a proximate cause of damages. "

We’ve seen busses cloaked in ads, and we’ve seen big big Times Square building ads, but who knew there was a name for this style of billboarding?  Who knew there would be a legal malpractice angle to it?  We did not, until today. From Law.Com:

"Welcome to the latest round in what might be called the Battle over the Blanketing of Los Angeles.
Municipal authorities have in recent years clashed with a group of sign companies and property owners who defied a local ban on so-called supergraphics—the once-omnipresent multistory advertisement draped along the sides of some of the city’s biggest buildings.
Many of the offending signs began to fall last year after the city scored a decisive victory at the U.S. Court of Appeals for the Ninth Circuit, which reversed a federal district court decision striking down the supergraphics ban on First Amendment grounds.
Now, one of the companies that led the supergraphics fight has filed a legal malpractice lawsuit against Akin Gump Strauss Hauer & Feld, which represented the company during the litigation battle.
In the suit [PDF], filed Friday in Los Angeles County Superior Court, World Wide Rush and owner Barry Rush claim that Akin Gump committed professional negligence by, among other things, advising the company to put up as many of the controversial signs as possible after the lower court ruling struck down the ban.
As a result of following this advice, the complaint states, World Wide Rush and Barry Rush, personally, were targeted in criminal and civil suits brought by the state of California and the city of Los Angeles.
The complaint further alleges that Akin Gump is responsible for more than 30 other parties connected to World Wide Rush—including contractors and property owners—being targeted in similar suits as part of a campaign that was something of a cause célèbre for current Los Angeles city attorney Carmen Trutanich. (In February 2010, for example, a Hollywood property owner who allowed a supergraphic to be put on his eight-story building was jailed.)
World Wide Rush claims to have racked up more than $1 million in legal fees defending itself and some of its codefendants against the actions initiated by government officials. The complaint also claims that Akin Gump’s advice led to "the demise of WWR."
Citing the firm’s policy of not discussing pending litigation, Akin Gump spokeswoman Kathryn Holmes Johnson declined to comment on the suit. World Wide Rush and Barry Rush are being represented in the suit by Los Angeles–based firm Webb & Beecher, which also declined to comment.
The events leading up to the suit began April 2008. It was then, the complaint states, that World Wide Rush retained Akin Gump at rates of up to $1,050 an hour, in connection with "legal action on behalf of [the company] against the City of Los Angeles."
At that point, World Wide Rush was already embroiled in litigation with the city, having filed a lawsuit challenging the supergraphics ban in January 2007. (The lawsuit was initially filed on behalf of the company by Newport Beach, California–based Paul Fisher, who was later suspended and ultimately disbarred in May 2010 after pleading guilty to several felonies, including having sex with a minor.)
In its suit against Akin Gump, World Wide Rush alleges that the firm’s lawyers "held themselves out…as specializing in advising and directing clients such as [World Wide Rush] with regards to laws, ordinances, zoning, and other regulations of the City of Los Angeles and well-suited to advise [World Wide Rush] as to actions it should take with regard to its supergraphics and signage business in Los Angeles and also with regard to the litigation and scrutiny from the City of Los Angeles."
 

Fighting in the trenches during WW1 was said to be dirty and without any rules.  It often seems that the same situation obtains for third-party litigation between law firms, one of which was responsible for failing to file a mortgage.  Fighting over money is the domain of attorneys, it can be dirty, and seemingly without rules and has been for centuries.

in U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR ASSET BACKED PASS THROUGH CERTIFICATES, SERIES 2006-HE1, Plaintiffs, -against- ALAN C. STEIN, ESQ., GASTWIRTH, MIRSKY & STEIN, L.L.P., LAW OFFICE OF ALAN C. STEIN, P.C., ROBERT M. STEINERT and CHICAGO TITLE INSURANCE COMPANY, Defendants. ALAN C. STEIN, ESQ., GASTWIRTH, MIRSKY & STEIN, L.L.P. and LAW OFFICE OF ALAN C. STEIN, P.C., Third-Party Plaintiffs, -against- STEVEN J. BAUM, P.C., and STEVEN J. BAUM, ESQ., Third-Party Defendants. Index No.: 016919/08 we see one law firm pitted against aother.  In this particular round of engagements, one law firm now seeks re-argument after an appeal.
 

"On or about September 11, 2008, the Plaintiff, U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR ASSET BACKED PASS THROUGH CERTIFICATES, SERIES 2006-HE1 ("US Bank"), commenced this action against the Stein Defendants for legal malpractice alleging that the Defendants were negligent in failing to properly record a mortgage executed in favor of the Plaintiff on a certain parcel of land located at 112 Irving Avenue, Deer Park, New York (hereinafter "Premises"). The Stein [*3] Defendants subsequently commenced a third-party action against the Baum Firm for contribution alleging that the Baum Firm failed to timely intervene in the action which could have secured the Plaintiff an equitable lien on its incorrectly recorded mortgage. The basis of the Stein Defendants’ claim for contribution is that the Baum Firm was negligent/guilty of malpractice in that it knew or should have known of another mortgage on the same Premises in favor of T&V Construction Corp. (hereinafter the "T&V Mortgage"), and the Baum Firm’s failure to timely intervene in the T&V Mortgage foreclosure proceeding proximately caused damages to the Plaintiff, US Bank."

"The Baum Firm moved to dismiss the third-party complaint, pursuant to CPLR § 3211 (a) (7), claiming that there was no basis for a malpractice action since it was retained in a different matter and for a different purpose than were the Stein Defendants. Justice William R. LaMarca, prior to his retirement from the bench, denied the motion to dismiss, relying on Schauer v. Joyce, 54 N.Y.2d 1, 429 N.E.2d 83, 444 N.Y.S.2d 564 (1981) and Dole v. Dow Chemical Co., 30 N.Y.2d 143, 282 N.E.2d 288, 331 N.Y.S.2d 382 (1972), finding that the third-party complaint validly stated a claim for contribution.2 [*4] (See Short Form Order, LaMarca, J., 12/04/09). In affirming Justice LaMarca’s Order, the Appellate Division, Second Department, held that, "[t]he Supreme Court properly determined that the Stein defendants stated [**4] a cause of action against the third-party defendant Steven J. Baum, P.C., by asserting, among other things, that Steven J. Baum, P.C., failed to timely correct the legal errors allegedly committed by the Stein defendants in their representation of the plaintiffs predecessor in interest, despite having sufficient time and an opportunity to do. The third-party complaint alleged sufficient facts which, if true, would establish that Steven J. Baum, P.C., may be liable to the Stein defendants for causing or contributing to the plaintiffs alleged damages"."

"A motion for reargument is addressed to the sound discretion of the court and may be granted upon a showing that the court overlooked or misapprehended the relevant facts or misapplied any controlling principles of law. Ito v. 324 East 9th Street Corp., 49 A.D.3d 816, 817, 857 N.Y.S.2d 578 (2d Dept. 2008). It is not designed, however, as a vehicle to provide an unsuccessful party with successive opportunities to rehash issues previously decided (Foley v. Roche, 68 A.D.2d 558, 567, 418 N.Y.S.2d 588 (1st Dept. 1979)), or to present arguments different from those originally presented. Giovanniello v. Carolina Wholesale Office Mach. Co., 29 A.D.3d 737, 738, 815 N.Y.S.2d 248 (2d Dept. 2006).

The Court finds that, in rendering its previous decision, all of the arguments raised by the Stein Defendants herein were considered. Stein failed to show that the Court [*9] overlooked or misapprehended the relevant facts or misapplied any controlling principles of law. As such, the Court adheres to its original decision and Stein’s motion to reargue is DENIED.
 

"

In this upstate 4th Department grievance/disciplinary case we see the effect an attorney can have on the lives of his clients.  Plaintiffs’ house burns down, and they retain this attorney to represent them.  He waits until the very last day to file, and then allows the case to be dismissed on discovery shortcomings.  The homeowners sue for legal malpractice and Judiciary Law 487, and win on default.  "Respondent did not contest the malpractice action, and a judgment was entered awarding the homeowners compensatory damages in the amount of $226,000 and punitive damages in the amount of $700,180.82. Respondent failed to appear in response to a subpoena for a judgment debtor examination and failed to respond to an order to show cause brought by the homeowners seeking an order finding him in contempt." 

Respondent raised as affirmative defenses and in mitigation of the misconduct that he began suffering from severe depression in 2005, but ignored advice to seek mental health treatment until 2007; that he did not contest the legal malpractice judgment, including the finding of intentional deceit, because he had been advised by a pro bono attorney to allow the homeowners to obtain a default judgment against him to enable them to recover damages from his malpractice insurer and he was unaware that they were seeking treble damages; and that he did not respond to the subsequent judgment debtor subpoena or order to show cause for contempt because he mistakenly believed that an agreement had been reached with the homeowners pursuant to which the default judgment would not be executed against respondent in his individual capacity. "

In determining an appropriate sanction, we have considered respondent’s previously unblemished record during his 22 years of practicing law and his expression of remorse. Respondent, however, has committed serious misconduct that caused harm to his clients. In particular, we have considered that respondent’s neglect of the fire insurance matter and his deceit in trying to conceal that neglect deprived the homeowners of an opportunity to retain new counsel who could have acted in a timely manner to preserve their claim for damages. Accordingly, after consideration of all of the factors in this matter, we conclude that respondent should be suspended for three years and until further order of the Court. "
 

Sub-prime mortgages and mortgage litigation in general has expanded if not exploded.  New rules, new fees, limitations and new court parts have all followed in the wake.  Borrowers who lose at the mortgage litigation stage then look to legal malpractice as a follow up.  in Jay v. Gallagher
2011 NY Slip Op 32563(U); September 20, 2011; Supreme Court, Nassau County; Docket Number: 323/11; Judge: Karen V. Murphy we see one example.

Plaintiff borrowed and then defaulted on mortgage 1.  Plaintiff e-negotiated and then defaulted on mortgage 2.  Plaintiff filed for bankruptcy, had the bankruptcy dismissed, and then settled the foreclosure litigation.  As part of that litigation the target attorneys moved for and received a charging and retaining lien.

Plaintiff then sued, pro se for legal malpractice.  She loses, for reasons of collateral estoppel and res judicata.

"Collateral estoppel bars relitigation of an issue that has already been decided in prior action, and where the part against whom the estoppel is being asserted had a full and fair opportunity to contest the issue in the prior proceeding (Tydings v. Greenfield, Stein & Senior, LLP 11 N.Y.3d 195, 199, 897 N. 2d 1044, 868 N. S.2d 563 (2008); Jeffreys v. Grifn 1 N.Y.3d 34, 801 N. 2d 404, 769 N. 2d 184 (2003); Schwartz v. Public Administrator 24 N. 2d 65 , 246 N. 2d 725 298 N. S.2d 955 (1969)).
Pursuant to this doctrine, a legal malpractice action generally will be barred by the defendant’ s ‘ successful prosecution of a prior action to recover fees for the same legal services which the (plaintiff) presently allege(s) were negligently performed”’ (York v. Landa 57 A.D.3d 980 981 , 870 N. 2d 459 (2d Dept., 2008) citing Pirog v. Ingber, 203 2d 348, 348-349, 609 N. 2d 675 (2d Dept., 1994)). Specifically, a charging lien entered in an underlying action against plaintiff in a legal malpractice action bars plaintiff from asserting the malpractice claim. By fixing the value of the defendant attorney services, the court necessarily concludes that there is no malpractice. (see Lusk v. Weinstein 85 A.D.3d 445, 924 N. 2d 91 (1 st Dept. , 2011); Wallach v. Unger Stutman, LLP, 48 D.3d 360, 853 N. 2d 295 (2d Dept., 2008); Afsharimehr v. Barer 303 A. 2d 432 755 N. 2d 888 (2d Dept., 2003); Lefkowitz v. Schulte, Roth Zabel 279 A. 2d 457 718 N. 2d 859 (2d Dept. , 2001))."

We sometimes ponder whether attorneys are held to a lesser standard in Legal Malpractice, or to put it a different way, are plaintiffs in legal malpractice forced to overcome sympathy for attorneys?  It cannot be argued that there is a fourth element in legal malpractice – the "but for" rule – that exists no where else.  But, let’s look at a recent case.

In Putnam County Temple & Jewish Ctr., Inc. v Rhinebeck Sav. Bank ; 2011 NY Slip Op 06829
Decided on September 27, 2011 ; Appellate Division, Second Department  Supreme Court dismissed the Temple’s complaint.  The Appellate Division reversed most of the dismissals.  Did Supreme Court just have it wrong, or does this reflect an institutional bias for attorneys?  You decide.
 

"The Supreme Court held that the attorneys were entitled to dismissal of the eighth cause of action to recover damages for legal malpractice insofar as asserted against them on the grounds that the applicable statutes of limitations had run, the attorneys had presented documentary evidence that conclusively disposed of the temple’s claims, and the temple failed to state a cause of action. We disagree. Based upon the allegations in the complaint and the documentary evidence presented, it cannot be determined at this juncture whether the continuous representation doctrine tolls the three-year statute of limitations for attorney malpractice under the circumstances (see Kanter v Pieri, 11 AD3d 912, 913-914). Moreover, the temple properly alleged all of the elements necessary to recover damages for legal malpractice. Accordingly, the Supreme Court erred in holding that the eighth cause of action to recover damages for legal malpractice should be dismissed insofar as asserted against the attorneys. "

"The Supreme Court further erred in holding that the seventh cause of action to recover damages for fraud should be dismissed insofar as asserted against the attorneys. Contrary to the attorneys’ contention, that cause of action was pleaded with sufficient specificity (see CPLR [*3]3016[b]; Pludeman v Northern Leasing Sys., Inc., 10 NY3d 486, 492; PDK Labs v Krape, 277 AD2d 211), and the attorneys’ documentary evidence failed to "resolve[] all factual issues as a matter of law, and conclusively dispose[] of the plaintiff’s claim" (Brunot v Eisenberger & Co., 266 AD2d 421, 421; see CPLR 3211[a][1]). However, in its current form, the sixth cause of action alleging a violation of Judiciary Law § 487 lacks the required specificity (see Mars v Grant, 36 AD3d 561; Briarpatch Ltd., L.P. v Frankfurt Garbus Klein & Selz, P.C., 13 AD3d 296, 297-298), and, under the circumstances of this case, we modify the order dated August 2, 2010, to grant that branch of the motion which was pursuant to CPLR 3211(a) to dismiss the sixth cause of action insofar as asserted against the attorneys with leave to the temple to replead the allegations in an amended complaint. "

Much of what we report is legal malpractice, and that almost always deals with money.  What did plaintiff lose?  How much was plaintiff required to pay?  What are the attorney fees?  Why is plaintiff liable to pay an attorney some money?  All important questions, and often they tell of a subtext of injury, divorce, disenfranchisement, and sadness.  Rarely, however, does legal malpractice result in death.

Yet, it can happen.  Pro bono capital crimes representation is a lovely act, and many innocent prisoners have benefited from Project Innocence and other similar programs.  Many of the big NY firms do criminal pro bono work, and they extol it on their web sites.  Here, is the flip side.  Associate attorneys working for Sullivan & Cromwell take on a pro bono case, and then as the years go by, they move on to other firms.  What happens to the case?

Today’s Law,Com answers the question, in the US Supreme Court.  "Alabama death row inmate Cory Maples, who lost his chance to bring a critical appeal because of a mailroom snafu in a New York law firm, may be getting a second chance from the U.S. Supreme Court.

In fast-paced arguments on Tuesday that delved into the obligations of lawyers representing criminal defendants, all of the justices, with the exceptions of Justice Antonin Scalia and a silent Justice Clarence Thomas, appeared concerned about the predicament in which Maples finds himself and skeptical of the state’s arguments that they should do nothing about it.

Maples, sentenced to death for the 1995 murders of two men, was represented pro bono in his state post-conviction appeal by two associates at New York’s Sullivan & Cromwell. As required by Alabama rules at the time, the two lawyers associated themselves with a local attorney, John Butler, in order to be admitted to practice in the state. Although the rules required Butler to be jointly and severally responsible for the case, he claimed his only role was to secure the New York attorneys’ admission.

The three attorneys filed a state post-conviction petition for Maples in which they raised ineffective assistance of trial counsel claims. After 18 months, the trial judge denied the petition, and then Maples’ problems began.

The court clerk sent notices of the denial order to the two associates and Butler. The associates, however, had left the firm for other jobs and failed to inform Maples or the court that they no longer represented him. Neither they nor Marc De Leeuw, the partner who worked with the associates, filed a substitution of counsel form. The firm’s mailroom returned the denial notices to the court clerk marked "return to sender" and "left firm." Butler did nothing with his notice, assuming the associates were handling the case. Maples actually learned of the denial and the missed appeal deadline when the prosecutor sent him a letter alerting him that the time for filing a federal habeas petition was close to expiring. He contacted his stepmother, who then contacted Sullivan & Cromwell. De Leeuw and Butler scrambled to ask the trial court to reissue its denial order so they could file an out-of-time appeal, but their motion was denied as was a request to the state criminal appeals court.

"