A potential client comes to the legal malpractice practitioner and says that a good medical malpractice case was lost at trial because of errors by their attorney.  They tell you that their expert was precluded, and that the case was lost against all defendants.  What’s more, the defendants were permitted to ask hypothetical questions that were not proper.  What can you do for me?

In many situations, the facts recited are true, and yet may not be actionable.  As an example,in Banister v Marquis ; 2011 NY Slip Op 06544 ; Decided on September 20, 2011 ; Appellate Division, Second Department  we see the following:
 

"Contrary to the plaintiffs’ contention, the trial court providently exercised its discretion in precluding them from calling an expert radiologist to testify. The proffered explanation for failing to identify this witness until after the trial began was not based on good cause (see CPLR 3101[d][1][i]; Lucian v Schwartz, 55 AD3d 687, 688; Caccioppoli v City of New York, 50 AD3d 1079, 1080). [*2]"

"The trial court should have prohibited counsel for the defendant Belinda Marquis from questioning an expert witness for the plaintiffs about a hypothetical pertaining to the probability of the infant plaintiff having both a pectus carinatum and fibromastosis, as the hypothetical was not based on facts supported by the evidence, nor from facts fairly inferable from the evidence (see Gilleo v Horton Mem. Hosp., 196 AD2d 569, 570). However, the error was harmless (see CPLR 2002; Kropf v New York Hosp., 212 AD2d 761). The trial court’s comments about the hypothetical did not deprive the plaintiffs of a fair trial (see Figueroa v Maternity Infant Care Family Planning Project, Med. & Health Research Assn. of N.Y. City, 243 AD2d 424).

Will preclusion of the expert survive a "judgment call" defense?  Can plaintiff prove to a judge’s satisfaction that testimony from that expert would have made a difference?  Is it all speculative? 

Are the harmless errors a mistake of the attorney, or did he/she make a valiant effort to object, only to be overruled?  Obviously the AD felt that there was no "but for" aspect…they found it harmless.

Legal malpractice litigation seems different from all other professional malpractice areas.  There seem to be more defenses and hurdles in this lawyer written-lawyer judged-lawyer prosecution area.

InByron Chem. Co., Inc. v. Groman; 2009 NY Slip Op 03465 ; Decided on April 28, 2009 ; Appellate Division, Second Department plaintiff employer sued its attorneys for an employee benefit provision which was drafted by attorney firm 1, which was then taken over by attorney firm 2. At issue was whether the doctrine of continuous representation tolled the statute of limitations, and if it did, were the two law firms to be held in the case. The Second Department held that while the law firms continued to intermittently represent the employer, such was not sufficient to toll the statute of limitations.
 

"Contrary to the plaintiff’s contention, the statute of limitations was not tolled by the continuous representation doctrine (see Dignelli v Berman, 293 AD2d 565; cf. Shumsky v Eisenstein, 96 NY2d at 168; see also Maurice W. Pomfrey & Assoc., Ltd. v Hancock & Estabrook, LLP, 50 AD3d 1531; Zaref v Berk & Michaels, P.C., 192 AD2d 346). The defendants’ subsequent representation in matters unrelated to the specific matter that gave rise to the alleged malpractice was insufficient to toll the statute of limitations (see Dignelli v Berman, 293 AD2d at 565). Accepting the facts alleged in the plaintiff’s complaint as true, there was a nine-year lapse between the defendants’ representation as to the employment agreements. The continuous representation doctrine does not contemplate such intermittent representation (see Williamson v PricewaterhouseCoopers LLP, 9 NY3d 1, 9; Shumsky v Eisenstein, 96 NY2d at 167-168; Loft Corp. v Porco, 283 AD2d 556). Accordingly, the Supreme Court correctly granted the defendants’ motions to dismiss the complaint insofar as asserted against them as time-barred. "
 

In a  Court of Appeals  case which limits potential liability, or more correctly put, continues a limit of potential liability of a corporation’s outside professional advisors, including attorneys. In Kirschner v Kpmg Llp ; 2010 NY Slip Op 07415 ; Court of Appeals ; Read, J. we see a discussion of this accountant’s malpractice question:

""Would the doctrine of in pari delicto bar a derivative claim under New York law where a corporation sues its outside auditor for professional malpractice or negligence based on the auditor’s failure to detect fraud committed by the corporation; and, the outside auditor did not knowingly participate in the corporation’s fraud, but instead, failed to satisfy professional standards in its audits of the corporation’s financial statements?" (In re Am. Intl. Group, Inc., 998 A2d 280 [Del 2010]).

"The doctrine of in pari delicto [FN4] mandates that the courts will not intercede to resolve a dispute between two wrongdoers. This principle has been wrought in the inmost texture of our common law for at least two centuries (see e.g. Woodworth v Janes, 2 Johns Cas 417, 423 [NY 1801] [parties in equal fault have no rights in equity]; Sebring v Rathbun, 1 Johns Cas 331, 332 [NY 1800] [where both parties are equally culpable, courts will not "interpose in favor of either"]). The doctrine survives because it serves important public policy purposes. First, denying judicial relief to an admitted wrongdoer deters illegality. Second, in pari delicto avoids entangling courts in disputes between wrongdoers. As Judge Desmond so eloquently put it more than 60 years ago, "[N]o court should be required to serve as paymaster of the wages of crime, or referee between thieves. Therefore, the law will not extend its aid to either of the parties or listen to their complaints against each other, but will leave them where their own acts have placed them" (Stone v Freeman, 298 NY 268, 271 [1948] [internal quotation marks omitted]). "

"Traditional agency principles play an important role in an in pari delicto analysis. Of particular importance is a fundamental principle that has informed the law of agency and corporations for centuries; namely, the acts of agents, and the knowledge they acquire while acting within the scope of their authority are presumptively imputed to their principals (see Henry v Allen, 151 NY 1, 9 [1896] [imputation is "general rule"]; see also Craigie v Hadley, 99 NY 131 [1885]; accord Center, 66 NY2d at 784). Corporations are not natural persons. "[O]f [*10]necessity, [they] must act solely through the instrumentality of their officers or other duly authorized agents" (Lee v Pittsburgh Coal & Min. Co., 56 How Prac 373 [Super Ct 1877], affd 75 NY 601 [1878]). A corporation must, therefore, be responsible for the acts of its authorized agents even if particular acts were unauthorized (see Ruggles v American Cent. Ins. Co. of St. Louis, 114 NY 415, 421 [1889]). "The risk of loss from the unauthorized acts of a dishonest agent falls on the principal that selected the agent" (see Andre Romanelli, Inc. v Citibank, N.A., 60 AD3d 428, 429 [1st Dept 2009]). After all, the principal is generally better suited than a third party to control the agent’s conduct, which at least in part explains why the common law has traditionally placed the risk on the principal. "

"We are also not convinced that altering our precedent to expand remedies for these or similarly situated plaintiffs would produce a meaningful additional deterrent to professional misconduct or malpractice. The derivative plaintiffs caution against dealing accounting firms a "get-out-of-jail-free" card. But as any former partner at Arthur Andersen LLP — once one of the "Big Five" accounting firms — could attest, an outside professional (and especially an auditor) whose corporate client experiences a rapid or disastrous decline in fortune precipitated by insider fraud does not skate away unscathed. In short, outside professionals — underwriters, law firms and especially accounting firms — already are at risk for large settlements and judgments in the litigation that inevitably follows the collapse of an Enron, or a Worldcom or a Refco or an AIG-type scandal. Indeed, in the Refco securities fraud litigation, the IPO’s underwriters, including the three underwriter-defendants in this action, have agreed to settlements totaling $53 million (www.refcosecuritieslitigation.com). In the AIG securities fraud litigation, PwC settled with shareholder-plaintiffs last year for $97.5 million (www.refcosecuritieslitigationpwc.com). It is not evident that expanding the adverse interest exception or loosening imputation principles under New York law would result in any greater disincentive for professional malfeasance or negligence than already exists [FN6]. Yet the approach advocated by the Litigation Trustee and the derivative plaintiffs would allow the creditors and shareholders of the company that employs miscreant agents to enjoy the benefit of their misconduct without suffering the harm. [*20]"

One has to shake the head and ask why all the effort goes into a law suit that will [or is so likely to] fail? The question is multiplied when plaintiff is an attorney seeking fees.

Rule 137 seems pretty comprehensive and exacting. Attorney who seeks a fee needs to serve th client with an opportunity to arbitate. Here in Messenger v Deem; 2009 NY Slip Op 29501 ;Decided on December 7, 2009 ;Supreme Court, Westchester County ;Giacomo, J. we see what turns out to be a total waste of time for everyone, including the jurors.
 

"In his complaint, plaintiff alleged that "Pursuant to Second Department case law, notice of right to arbitrate legal fees need not be provided to a client who never disputes the reasonableness of an attorney’s legal fees…Defendant never disputed the reasonableness of Plaintiff’s fees." (Complaint at ¶¶6-7.)

In her answer [FN1], defendant denied the allegations of the complaint and plead thirteen affirmative defenses including that plaintiff was not entitled to an attorney’s fee because of his: failure to provide defendant with notice of arbitration before commencement of the suit ."
 

"Part 137 of the Rules of the Chief Administrator of the Courts provides for a Fee Dispute Resolution Program. A mandatory Arbitration Procedure is set forth therein for all representations that commenced on or after January 1, 2002, and is applicable "to all attorneys admitted to the bar of the State of New York who undertake to represent a client in any civil matter." 22 NYCRR 137.1.

Plaintiff argues that the mandatory arbitration provisions of Part 137 are inapplicable to the instant matter because, like in the Scordio matter, there was no disagreement as to the amount of attorney’s fee due to plaintiff, and that defendant [*3]simply did not pay what was due. In Scordio, the Appellate Division, Second Department held that the mandatory arbitration notice provided for by then Court Rule 136.5 did not apply where the client did not dispute the reasonableness of the fees charged, and specifically declined "to follow the rule adopted by the Appellate Division, First Department, which obligates an attorney to send such a notice even in the absence of any fee disagreement with a client." Scordio v. Scordio, 270 AD2d at 329, 705 NYS2d at 59.

Court Rule 136.5, upon which Scordio was premised, was repealed in January 2002 and replaced with Court Rule 137.6. Former Rule 136, which was applicable only to domestic matters has been subsumed by the newer Part 137 which, with limited exceptions that are not alleged here, is applicable to all civil matters. Court Rule 137.6 is applied in the same manner as former Rule 136.5. See, Abinanti v. Pascale, 41 AD3d 395, 837 NYS2d 740 (2nd Dept., 2007); Borah, Goldstein, Altschuler, Schwartz & Nahins, PC v. Lubnitzki, 13 Misc 3d 823, 822 NYS2d 425 (N.Y.Civ.Ct., 2006). "

"A "fee dispute" (22 NYCRR §137.2) or a disagreement as "to the attorney’s fee" [22 NYCRR §137.6(a)] is not only found when the former client complains as to time billings on a line by line basis. Under Part 137, arbitrators are entrusted to "determine the reasonableness of fees for professional services". 22 NYCRR §137.0. Here the defendant "disputed the reasonableness of the fees" plaintiff was charging. See, Scordio v. Scordio, supra , 270 AD2d at 329, 705 NYS2d at 59. The "reasonableness" of the fee cannot be limited to disputes as to whether an attorney should have charge "1.0 hours of billing time" instead of "1.2 hours of billing time". If such were the case a simple audit of the bill would be all that was necessary. Instead, arbitrators are given authority to evaluate and make a subjective finding of reasonableness. For something to be reasonable it must be fair and proper under the circumstances. To hold otherwise would render the Rule impotent and unenforceable. "
 

Here is a short, pungent and dispositive decision by the Appellate Division, Second Department in Zito v Fischbein Badillo Wagner Harding ; 2011 NY Slip Op 00285 ; Decided on January 20, 2011 Appellate Division, First Department.
 

We’ve seen a "charging lien" utilized as res judicata against a subsequent legal malpractice case, but the use of a "retaining lien" is much more rare. Presumably, there was litigation in which the Court also determined that fees were actually due to the law firm, and not simply that the law firm had the right to retain files pending a later determination.

"Plaintiff is collaterally estopped from seeking a declaration that he had cause to terminate his attorney-client relationship with defendant Nimkoff Rosenfeld & Schechter (the third cause of action) by this Court’s order on a prior appeal, which implicitly determined that defendant was not discharged for cause, because in fact it was not discharged at all but voluntarily withdrew (see 58 AD3d 532 [2009]). Any other construction of the order would be contrary to law, since an attorney discharged for cause "has no right to compensation or to a retaining lien" (Teichner v W & J Holsteins, 64 NY2d 977, 979 [1985]). The issue of discharge that plaintiff raised in his legal malpractice action is identical to the issue addressed by this Court in the prior appeal of the original action. Indeed, during the prior appeal, plaintiff asked this Court to take judicial notice of the malpractice action he commenced in Nassau County, and fully briefed his malpractice claims.

The second cause of action, alleging legal malpractice, is barred under the doctrine of res [*2]judicata by the court’s imprimatur of a retaining lien (see Kinberg v Garr, 28 AD3d 245 [2006]; Molinaro v Bedke, 281 AD2d 242 [2001]; Summit Solomon & Feldesman v Matalon, 216 AD2d 91 [1995], lv denied 86 NY2d 711 [1995]; see generally Blair v Bartlett, 75 NY 150, 154 [1878]). "

in legal malpractice, the judgment rule holds that an attorney may not be held liable for choices of strategy whether they turn out successful or not.  These choices may be in the selection of witnesses, in the selection of experts, in the choice of questions to ask witnesses, and, as we see in this criminal law case, in the choice of consessions made at trial. 

 Baston v. US, 10 CV 4344 (HB), NYLJ 1202514447306, at *1 (SDNY, NY, Decided September 8, 2011) ;District Judge Harold Baer;  Decided: September 8, 2011
"Pro se petitioner, Wilson J. Baston ("Petitioner"), brings this petition for a writ of habeas corpus to vacate, set aside, or correct his federal criminal sentence pursuant to 28 U.S.C. §2255. Petitioner is currently serving 17 concurrent prison terms of 135 months, after having pled guilty to multiple counts of mail and wire fraud. Petitioner has also requested an evidentiary hearing. For the reasons set forth below, the petition and request for an evidentiary hearing are denied."

"On March 5, 2008, Petitioner pled guilty pursuant to a plea agreement that contained a Stipulated Sentencing Guidelines Range of 87 to 108 months and indicated that the loss amount would be at least $7 million but less than $20 million, with the specific amount to be calculated prior to sentencing. These ranges were calculated based on data known to the U.S. Probation Department at the time. Additional victims continued to make themselves known to the Government and the loss amount grew. Before the sentencing hearing, the Probation "

In Petitioner’s sentencing memorandum, Petitioner’s attorney, Matthew Kluger ("Kluger"), acknowledged that the Final PSR’s calculation was a more accurate reflection of the actual loss attributable to Petitioner’s conduct, but requested that Petitioner be sentenced to serve 87 months — the minimum number of months specified in the plea agreement — or less. The Government’s sentencing memorandum noted the discrepancy between the recommendations in the Final PSR and the plea agreement, and requested a sentence of 108 months in order to comport with both. The Court also received a number of written victim impact statements prior to sentencing. The parties made the same arguments at the sentencing hearing as they did in their written submissions. I reminded the parties that the Court is not bound by the plea agreement and, after hearing testimony from several victims, I announced a sentence of 135 months and a final restitution order of $22,396,633.57.

Petitioner appealed, arguing that his sentence should be vacated on grounds that the Government breached the plea agreement, that his counsel provided constitutionally ineffective assistance, and that the restitution order was improper. See United States v. Baston, 355 F. App’x 530, 531-32 (2d Cir. 2009). The Second Circuit Court of Appeals affirmed the judgment below. Id. at 533. The Court of Appeals found that Petitioner forfeited his claim that the Government breached the plea agreement by having failed to raise it at the appropriate time. Id. at 533. It also found no plain error which would make the restitution order improper. Id. at 532. The Court of Appeals dismissed Petitioner’s claim for ineffective assistance of counsel without prejudice, on the grounds that the Supreme Court has stated a preference for resolving such claims in a habeas petition, id. (citing Massaro v. United States, 538 U.S. 500, 504 (2003)), and consequently that ground is asserted by Petitioner here.

On June 2, 2010, Petitioner brought this habeas corpus petition under 28 U.S.C. §2255. Petitioner alleges two grounds for relief. First, he claims to have received ineffective assistance of counsel at trial because his trial counsel (a) breached the plea agreement by conceding at sentencing that the loss and restitution amounts were accurate and (b) failed to investigate andcorrect errors in the loss and restitution amounts. Second, Petitioner claims that the calculation of the restitution order and loss amount were inaccurate."

"Courts have denied ineffective assistance claims in situations, where counsel conceded certain evidence at trial, because it was a strategic decision to make the concession. See id. at 699 (holding counsel’s decision not to present or investigate certain evidence was strategic and virtually unchallengeable); United States v. Gaskin, 364 F.3d 438, 468 (holding counsel’s stipulation to defendant’s signature on trial exhibits was a strategic choice and decisions to stipulate to evidence are strategic as a rule); United States v. Berkovich, 168 F.3d 64, 67-68 (2d Cir. 1999) (holding counsel’s decision to enter into a global stipulation was part of a "reasonable trial strategy").

Kluger’s concession of the loss amount, with which Petitioner takes issue, was a strategic choice, made to avoid the risk of an even higher loss amount and perhaps an even higher sentence."
 

In this non-legal but professional  malpractice case, the question of which state law applies is answered decisively.  Rose v Arthur J. Gallagher & Co. ; 2011 NY Slip Op 06374 ; Decided on August 30, 2011 ; Appellate Division, Second Department concerns negligent quoting of premiums in an insurance transaction.  The parties debated a "contact" analysis for choice of law questions.  The Court looked at it differently:
 

"The three causes of action in question sound in tort and, thus, contrary to the parties’ contentions, the conflict-of-laws standard that applies in contract-based actions (see Zurich Ins. Co. v Shearson Lehman Hutton, 84 NY2d 309, 317-319) does not apply here. Since the laws alleged to be in conflict—including those regarding the availability of punitive damages, an important purpose of which is deterrence (see Ross v Louise Wise Servs., Inc., 8 NY3d 478, 489) — are of a conduct-regulating nature, the law of the place of the tort applies (see Padula v Lilarn Props. Corp., 84 NY2d 519; Cooney v Osgood Mach., 81 NY2d 66, 72; Schultz v Boy Scouts of Am., 65 NY2d 189, 198; Shaw v Carolina Coach, 82 AD3d 98, 101). In this case, the allegedly negligent quote was requested by the plaintiffs, and provided by the defendants, through e-mail communications that were sent from and received in New York. Thus, the tortious conduct alleged in the amended complaint is governed by New York law. Since the parties charted a procedural course in which the viability of the three causes of action in question depends upon whether they are governed by Louisiana law, the [*2]Supreme Court properly awarded the defendants summary judgment dismissing those causes of action. "
 

When are limited NY contacts enough to allow an attorney from New Jersey to be sued in New York?  The question is easy to answer in the abstract. That answer is "to the extent permitted by due process."  In the actual or practical world, the answer is much more difficult.  PHILIP SELDON, Plaintiff, – against – REBENACK, ARONOW & MASCOLO, LLP and JAY MASCOLO, Defendants. Index No. 101042/11;101042/11 ;SUPREME COURT OF NEW YORK, NEW YORK COUNTY;2011 NY Slip Op 32364; 2011 N.Y. Misc. LEXIS 4328; illustrates the manner in which Courts decide this question.

"In November 2006, a judgment was entered against Seldon in Supreme Court, New York County, and in favor of Andrew J. Spinnell, in the amount of $515,013.00. Defendants did not represent plaintiff in the New York action. In an effort to collect the judgment, Spinnell docketed his New York judgment in Superior Court of New Jersey. As a result, a bank affiliated with two of Seldon’s companies, restricted those companies from accessing funds.

Thereafter, Seldon was referred by the Middlesex County Bar Association to defendants Rebenack, Aronow & Mascolo, LLP ("Rebenack"), a New Jersey law firm. Plaintiff signed a retainer agreement with Rebenack on June 27, 2007. Rebenack commenced an action ("the bank action"), and filed an order to show cause in Superior Court, seeking to lift the restrictions. [**2] The Order to Show Cause was denied and the court permitted Spinnell to withdraw certain funds in satisfaction of his [*3] judgment. In October 2007 Spinnell filed a separate action, also in Superior Court, alleging that plaintiff, individually, and through his corporations, had fraudulently conveyed funds. In May 2009 a Superior Court judge decided that Spinnell’s claims were barred because he failed to assert them in the bank action. In July 2010, the Superior Court Appellate Division reversed the lower court and remanded the action to trial court to determine "whether there were any issues of material fact."

In December 2010 the action was tried and the judge found that Seldon fraudulently conveyed his funds and was directed to pay Spinnell the monies owed on the New York judgment. At the trial Rebenack represented the corporations and Seldon appeared pro se. Thereafter, Seldon commenced the instant malpractice action by service of a Summons with Notice on January 26, 2011, alleging that Rebenack failed to properly prepare him for trial, and failed to properly represent him.

Rebenack, in support of its motion, submits: the complaint; a copy of the Appellate Division decision; a copy of [**3] the retainer agreement; and a copy of a Superior Court "Order and Judgment." Rebenack argues that it is a New Jersey firm that does not advertise or conduct business in New York. The underlying matter, Rebenack asserts, arose out of New Jersey litigation, and all meetings, and preparation for trial were done in New Jersey.

Rebenack admits that it "shared a single office" in New York City with a New York attorney from 2009 until January 2011, but, through the affidavit of defendant Jay Mascolo, claims that it had no staff or telephone listing for that office, and that the firm did not hold a New York bank account. Rebenack further concedes that the New York address was listed on its letterhead during that period, but asserts that the office was only used three times to hold EBTs in unrelated insurance matters, and that the office was now closed due to non-use.

Although a plaintiff bears the ultimate burden of proof on the issue of personal jurisdiction, in opposing a motion to dismiss pursuant to CPLR 3211(a)(8) on the ground that discovery on the issue of personal jurisdiction is necessary, plaintiffs [**6] need not make a prima facie showing of jurisdiction, but instead must only set forth "a sufficient start," and "should have further opportunity to prove other contacts and activities of the defendant in New York as might confer jurisdiction under the long arm statute, thus enabling them to oppose the motion to dismiss."(Peterson v. Spartan Industries, Inc., 33 NY2d 463[1974]).

Rebenack maintained an office in New York until January 2011, in or around the time the summons and notice would have been served. Additionally, the New York address was listed on Rebenack’s letterhead during the period from 2009 through January 2011. Thus, there is sufficient basis to deny Rebenack’s motion and permit discovery on the issue of whether Rebenack was "doing business" in New York. (see; CPLR 3211[d]).

Wherefore it is hereby

ORDERED that defendant’s motion is denied without prejudice to a new motion at the close of discovery on the jurisdictional issue; "