From the NY TImes:

"A bill to overhaul the patent system that is before the Senate contains a provision that could get an influential law firm off the hook for a possible $214 million malpractice payment.

J. Scott Applewhite/Associated Press
“The key question is whether we will vote to bail out a law firm that made a mistake and now wants consumers and taxpayers to pay the freight for that error,” said Senator Jeff Sessions, above, and Senator Tom Coburn, in a letter to colleagues.
The provision clarifies how much time pharmaceutical companies have to apply for patent extensions that can provide extra years of protection from generic competition.

But critics, who have labeled the provision “The Dog Ate My Homework Act,” say it is really a special fix for one drug manufacturer, the Medicines Company, and its powerful law firm, WilmerHale. The company and its law firm, with hundreds of millions of dollars in drug sales at stake, lobbied Congress heavily for several years to get the patent laws changed.

The patent office initially said that the company had missed the deadline for applying for a patent extension by a day or two, potentially losing nearly four years of patent protection on its main drug, the anticoagulant Angiomax. The provision would guarantee that the Medicines Company got the extra patent protection, and it would relieve WilmerHale, which was hired to file the application, of a possible malpractice payment to its client.

On Thursday, the Senate is scheduled to vote on an amendment proposed by Senator Jeff Sessions, Republican of Alabama, that would strip the provision from the bill. “The key question is whether we will vote to bail out a law firm that made a mistake and now wants consumers and taxpayers to pay the freight for that error,” Senator Sessions and Senator Tom Coburn, a Republican from Oklahoma, said in a letter sent Wednesday to colleagues. They said the extra patent protection on Angiomax could cost hospitals and consumers $1 billion."

GABRIEL D’JAMOOS, , v. MICHAEL GRIFFITH, No. 08-3668-cvUNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT;2009 U.S. App. LEXIS 17868;August 12, 2009, discusses termination for cause and the proofs needed:

"Under New York law, an attorney may be dismissed by a client at any time with or without cause." Garcia v. Teitler, 443 F.3d 202, 211 (2d Cir. 2006). "If the discharge is for cause, [*7] the attorney is not entitled to fees." Id. "If, however, the discharge is without cause, the attorney may recover the value of services rendered in quantum meruit," id. at 211-12, "even where the attorney discharged without fault was employed under a contingent fee contract," Universal Acupuncture Pain Servs., P.C. v. Quadrino & Schwartz, P.C., 370 F.3d 259, 263 (2d Cir. 2004) (internal quotation marks omitted). "Poor client relations, differences of opinion, or personality conflicts do not amount to cause, which is shown by impropriety or misconduct on the part of the attorney." Garcia v. Teitler, 443 F.3d at 212.

We identify no error in the district court’s conclusion that Griffith was not terminated as a result of such "impropriety or misconduct." Id. D’Jamoos’s December 1, 1999 letter releasing Griffith notes plaintiff’s "profound dissatisfaction with the [1998 settlement] and the quality of the representation that [he] received." At his deposition, D’Jamoos noted as causes for the termination, inter alia, Griffith’s failure to enforce the 1997 settlement, his dissatisfaction with the 1998 settlement, and various trial-related omissions. To the extent these complaints "consist solely [*8] of dissatisfaction with reasonable strategic choices regarding litigation," under New York law, "[s]uch choices do not, as a matter of law, constitute cause for the discharge of an attorney." Callaghan v. Callaghan, 48 A.D.3d 500, 501, 852 N.Y.S.2d 273 (2d Dep’t. 2008). Moreover, as the district court rightly emphasized, on March 27, 1998, D’Jamoos expressed, under oath, his agreement with the 1998 settlement. That he subsequently became dissatisfied with that settlement does not constitute "cause" for Griffith’s termination warranting D’Jamoos’s withholding compensation for counsel’s services. To the extent plaintiff also cites certain litigation and enforcement delays that might support termination for cause, plaintiff has failed to offer evidence indicating that such delays were caused by Griffith. Finally, while we have noted that, "[i]f a client who retained an attorney under a contingent-fee agreement discharges that attorney because there is no chance of recovery for the client, the discharge may be for cause, and the attorney may not be entitled to fees in quantum meruit," Universal Acupuncture Pain Services, P.C. v. Quadrino & Schwartz, P.C., 370 F.3d at 265 n.7, we agree with the district [*9] court that the record does not demonstrate this to be such a case."

Cases in Landlord-Tenant court often have sad back-stories, and even sadder endings.  In Alves v 152-154 W. 131st St. Holding Co., Inc. ;2011 NY Slip Op 32328(U) ;August 25, 2011
Supreme Court, New York ounty ;Docket Number: 116783/10 ;Judge: Donna M. Mills we see only the begining of a tale so complex, that it does not bear repeating.

"In her affidavit, plaintiff states that she was originally represented by an attorney, Romeo Salta (Salta), who filed the initial complaint, which allegedly contained errors and was incorrectly served upon the parties. Salta was thereafter relieved by this court on March 18, 20 11. Plaintiff is representing herself, and wishes to continue in that status. Plaintiff elaborates that the original complaint was vague in its language. In addition, she claims that Salta failed to sue defendant William T. Hurley (Hurley) both personally and as the  President of the Board of Directors of the co-op, and did not serve him. She contends that the amended complaint would not prejudice defendants at this early stage of the action. A copy of the proposed amended complaint is submitted. This complaint contains fourteen causes of action. The first cause of action is brought against the landlord and Hurley, in his dual capacities, for malicious prosecution and/or abuse of process. The second cause of action is brought against the landlord and Hurley as president of the Board of Directors, for violation of Section 223-b of the Real Property Law, The third cause of action is brought against Hurley, in his dual capacities, for harassment. The fourth cause of action is brought against the landlord for respondeat superior. The fifth cause of action is brought against defendant Michael Schwartz (Schwartz), the landlord’s attorney, for negligence. The sixth cause of action is brought against defendant Barry Malin & Associates, P.C. (Malin), Schwartz’s employer, for respondeat superior. The seventh cause of action is brought against Malin, Schwartz, the
landlord and Hurley, in his dual capacities, for intentional infliction of emotional distress. The
eighth cause of action is brought against defendants Adam L. Bailey (Bailey) and Steven Decastro (Decastro), former attorneys of plaintiff, for negligence. The ninth cause of action is brought against defendants Bailey and Decastro for breach of fiduciary duty. The tenth cause of action is brought against Bailey, Decastro and defendant Gregory Calabro (Calabro), a former attorney of plaintiff, for breach of contract. The eleventh cause of action is brought against Calabro for breach of fiduciary duty:The twelfth cause of action is brought against Calabro for fraud andor negligence. The thirteenth cause of action is brought against Calabro for conversion. The fourteenth cause of action is brought against Bailey, Decastro and Calabr based on a fee dispute.

Opposition to this motion is brought by Bailey, Calabro, the landlord and Hurley. Bailey  argues that this motion must be denied because it lacks colorable merit. He claims that he did not represent plaintiff in his personal capacity but that his firm was retained by her. According to him, the retainer checks she sent to that firm were not made out to him, but to the professional corporation, “Adam Leitman Bailey, P.C.”

Moreover, he states that there are no grounds for negligence or breach of contract due to the fact that she did not lose the Civil Court suit. He avers that the timeliness of the suit was not due to any actions taken by his firm. The fee dispute concerns a demand for a refund of money to which Bailey claims his firm was entitled. Calabro opposes the motion on the ground that there is no merit to the breach of fiduciary duty claim, since, through his efforts, plaintiff was relieved from the Civil Court suit, and he, not plaintiff, was entitled to attorney’s fees in that case. The landlord and Hurley oppose the motion, arguing that, as well as lacking in merit, plaintiffs amended complaint was improperly served on them. They acknowledge that tlus court, by Order dated March 18,201 1, granted plaintiffs former counsel’s motion to withdraw as plaintiffs counsel, and directed him to serve notice to plaintiff directing her to appoint a “substitute attorney” within 60 days. This Order prevented them, and other defendants, from taking any further proceedings against plaintiff without leave of court for a period of 90 days after entry of this Order, which allegedly expire on July 6,201 1. The landlord and Hurley request that the court prevent plaintiff from filing or serving the proposed amended complaint until after the expiration date of the stay. 
In reply, plaintiff states that she is suing Bailey in his capacity as the owner of his law firm. She asserts that the claim of malpractice against him is valid and that he did not give her a retainer. She argues that Calabro was not entitled to all legal fees and that he initiated a Civil Court suit against her .to recover other1 unearned fees. She claims that she was not present or represented at the proceeding. That suit is allegedly stayed by court order.Plaintiff contends that the claims against the landlord and Hurley are valid as these defendants brought a holdover proceeding based on false grounds and as a vehicle for abuse and harassment, that was finally dismissed after three years of litigation. She opposes their request to delay her motion as pointless, since the order was allegedly meant to protect her temporarily  from further actions brought by defendants. She defends her decision to sue Hurley in a dual capacity,due to the nature of his alleged misconduct. "

Appellate Decisions are always correct, well reasoned, and exquisitely written.  Sometimes they are recalled and changed.  Landa v Blocker   2011 NY Slip Op 06370 ;  Decided on August 30, 2011 ;  Appellate Division, Second Department  is an example of the result of persistence in appellate work.
This case is an attorney fee/legal malpractice matter in which it was alleged that the client "approved" monthly statements.  If she approved, then an account was stated and there is little to no defense to the attorney fee issue.

So the Appellate Division found, and so the appeal ended, until appellant’s attorney moved to reargue.  Here it was successful,

"ORDERED that the judgment is modified, on the law, by deleting the provision thereof awarding the plaintiff the principal sum of $193,525.40; as so modified, the judgment is affirmed, without costs or disbursements, those branches of the plaintiff’s motion which were for summary judgment on the first cause of action of the amended complaint and to strike the eighth affirmative defense are denied, and the order dated April 13, 2009, is modified accordingly; and it is further

The plaintiff demonstrated his prima facie entitlement to judgment as a matter of law on the first cause of action by tendering invoices for services rendered prior to December 5, 2006, setting forth his hourly rate, the billable hours expended, and the particular services rendered, and establishing that the defendant signed such invoices, failed to timely object to the invoices, and made partial payments thereon (see Landa v Dratch, 45 AD3d 646, 648; Landa v Sullivan, 255 AD2d 295). In opposition, however, the defendant submitted her own affidavit, which was sufficient to raise a triable issue of fact as to whether she acquiesced in the correctness of the invoices (see Interman Indus. Prods. v R.S.M. Electron Power, 37 NY2d 151, 153-154; Rodkinson v Haecker, 248 NY 480, 485). The defendant asserted in her affidavit that she signed the invoices as "approved," not because she actually agreed that the amounts reflected therein were correct, but because she was told that no work would be done on her case unless she signed the invoices. For example, the defendant averred that, during a conference at the plaintiff’s office, the plaintiff produced a number of unsigned billing statements and told the defendant that "the conference was not going to proceed until [she] signed the billing statements." According to the defendant, she signed the billing statements, but "[t]here was no intent on [her] part to accept the billing so that it could never, ever, be challenged in the future."

We note that the plaintiff’s alleged refusal to proceed with his representation of the defendant unless the defendant signed the billing statements "would not constitute duress by reason [*3]of which [the defendant] would be entitled to have the written statement invalidated" (Miller v Storer, 1 AD2d 956, 956, affd 2 NY2d 815). Here, however, the defendant does not seek to invalidate or repudiate either the billing statements or the retainer agreement between the parties. Indeed, unlike the client in Miller, the defendant in this case has not asserted a counterclaim for rescission of any agreement between the parties. Rather, the defendant seeks only to defeat that branch of the plaintiff’s motion which was for summary judgment on his cause of action to recover on an account stated by raising a triable issue of fact as to whether she agreed to or acquiesced in the correctness of the invoices. The facts asserted in the defendant’s affidavit are sufficient to raise a triable issue of fact as to whether her acts of signing the invoices "were, in fact, acquiescence to their correctness" (Ween v Dow, 35 AD3d 58, 62).

The Supreme Court also improperly granted that branch of the plaintiff’s motion which was to strike the eighth affirmative defense alleging that the fees in question were excessive. The plaintiff failed to meet his prima facie burden of establishing his entitlement to judgment as a matter of law in connection with this affirmative defense (see Bomba v Silberfein, 238 AD2d 261). Accordingly, the Supreme Court should have denied that branch of the plaintiff’s motion which was to strike the eighth affirmative defense alleging that the fees in question were excessive, without regard to the sufficiency of the defendant’s opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). "

We rarely write about ourselves, but today we pass the 2500 article milestone.  In our case, we generally publish one article a work day, and today’s submission makes 2501 articles.  We thank our readers for their interest in the legal malpractice world and its unique players.

Legal malpractice pops up in many transactional cases, and LZG Realty, LLC v H.D.W. 2005 Forest, LLC:011 NY Slip Op 06372;ecided on August 30, 2011;ppellate Division, Second Department is one.  Here malpractice was alleged in a mortgage transaction where there were multiple mortgages and the allegation of fraud in documents by the borower.

"In a letter dated May 9, 2011, the Hager defendants informed this Court that they and HDW had settled the first cause of action alleging legal malpractice asserted against them in the third-party complaint and that, consequently, they were declining to prosecute their cross appeal from so much of the Supreme Court’s order as denied that branch of their cross motion which was for summary judgment dismissing that third-party cause of action. Summary judgment dismissing the third-party complaint in its entirety must, thus, be awarded to all of the third-party defendants in Action No. 1 since: (1) HDW has settled the first cause of action alleging legal malpractice; (2) the Supreme Court awarded summary judgment dismissing the second cause of action alleging fraud on the ground that HDW does not have standing to raise that claim, which involved an unrelated real estate transaction, and no party appealed that determination; (3) the mortgages are valid, thus defeating HDW’s right to relief pursuant to the third cause of action in the third-party complaint; and (4) the Supreme Court awarded summary judgment dismissing the fourth cause of action alleging slander of title, and no party appealed that determination.

In addition, summary judgment dismissing all of the causes of action and cross claims for contribution must be awarded to the Hager defendants because HDW settled the legal malpractice claim, and the remaining grounds for seeking contribution, as set forth in the pleadings, are no longer viable (see Rosner v Paley, 65 NY2d 736, 736; Crimi v Black, 219 AD2d 610, 611). Similarly, there is no express or implied contract that would give rise to a cause of action for indemnification (see County of Westchester v Welton Becket Assoc., 102 AD2d 34, 42, affd 66 NY2d 642; Jakobleff v Cerrato, Sweeney & Cohn, 97 AD2d 786)."

Failure to advise a client of the attorney’s malpractice (or hiding the malpractice) is not enough to give rise to a cause of action, but fraud in advising the client that attorney is licensed in Florida is enough.  In Rupolo v Fish ; 2011 NY Slip Op 06343 ;Decided on August 23, 2011 ;Appellate Division, Second Department  we see that while it may be too late to sue for legal malpractice, it is not too late for a claim in fraud.
 

"In the second cause of action the plaintiffs allege that the defendants committed legal malpractice with respect to the drafting of an easement agreement benefitting certain real property located in Florida and owned by the plaintiffs. The Supreme Court erred in denying that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(5) to dismiss this cause of action as time-barred. The defendants demonstrated that the alleged legal malpractice occurred more than three years before the instant action was commenced on October 31, 2008 (see CPLR 214[6]; Kennedy v H. Bruce Fischer, Esq., P.C., 78 AD3d 1016, 1017). Contrary to the plaintiffs’ contention, they failed to raise a question of fact as to whether the statute of limitations was tolled by the doctrine of continuous representation. Rather, the evidence demonstrated that the relationship necessary to invoke the continuous representation doctrine terminated during the summer of 2005 (cf. Marlett v Hennessy, 32 AD3d 1293, 1294; Piliero v Adler & Stavros, 282 AD2d 511), and the fact that the defendants received a telephone call from the plaintiffs’ new counsel in November 2005, during which the defendants provided requested information to new counsel, did not toll the running of the statute of limitations until that date (see Tal-Spons Corp. v Nurnberg, 213 AD2d 395, 396). Accordingly, that branch of the defendants’ motion which was to dismiss the legal malpractice cause of action should have been granted (see Williams v Lindenberg, 24 AD3d 434, 434-435).

However, the Supreme Court properly denied that branch of the defendants’ motion [*2]pursuant to CPLR 3211(a)(7) which was to dismiss the cause of action alleging fraud as duplicative of the legal malpractice cause of action. As alleged in the complaint, the fraud cause of action was based upon tortious conduct independent of the alleged malpractice, i.e., an alleged misrepresentation as to the eligibility of the defendant Richard E. Fish to practice law in the State of Florida, and the plaintiffs alleged that damages flowed from this distinct conduct (cf. Weiss v Manfredi, 83 NY2d 974, 977 ["attorney’s failure to disclose malpractice does not give rise to a fraud claim separate from the customary malpractice action"]; Iannucci v Kucker & Bruh, LLP, 42 AD3d 436). "

The perennial question of whether a prior proceeding might influence a later proceedings arises again in Feinberg v. Boros, 2010 NY Slip Op 30797, by Justice Emily Jane Goodman, in Supreme Court, New York County.

The legal malpractice claim arose after an arbitration between plaintiff and his former business partner, where defendants acted as Feinberg’s party arbitrator and later as counsel in a law suit against the former accountants to the business. The claim is that defendants failed to advise plaintiff about the collateral estoppel effect of the arbitration award on his subsequent suit against the accountants for malpractice.

Such malpractice – malpractice lawsuits are more common than one might imagine. While the popular conception is that the client is litigious, or lawsuit-crazy, the better and more accurate version is that the client has moved from one situation to the next in search of a proper finding of liability.

"In 1997, plaintiff and his former partner, Norman Katz, submitted to arbitration the issue of the final purchase price of Katz’s share of the jointly owned I. Appel Corporation, thus barring litigation of plaintiff’s claims against the corporation’s accounting firm (I. Appel Corp. v Mahoney Cohen & Co., 294 AD2d 196 [2002]; 6 AD3d 279 [2004], lv denied 4 NY3d 701 [2004]).

Plaintiff now seeks damages resulting from the alleged negligence of their former attorneys in failing to move to amend the arbitration award to insert language limiting the collateral estoppel effect of the award. We agree that plaintiff’s pleading of his legal malpractice cause of action was sufficient to survive defendants’ original CPLR 3211 (a) (7) motion. From the alleged facts, accepting them as true, according them the benefit of every possible favorable inference, and evaluating them only as to whether they fit within any cognizable legal theory, one could infer that plaintiff’s former partner would have been amenable to an agreement limiting the estoppel effect of the arbitration award. Defendants have not established, as a matter of law, that even if plaintiff and Katz had entered into an agreement limiting the collateral estoppel effect of the arbitration award, the Mahoney Cohen lawsuit would nonetheless have been dismissed on collateral estoppel grounds (Matter of American Ins. Co. [Messinger—Aetna Cas. & Sur. Co.], 43 NY2d 184 [1977]; accord Kerins v Prudential Prop. & Cas., 185 AD2d 403 [1992]). In circumstances involving arbitration, the parties themselves can formulate their own contractual restrictions on the carry-over estoppel effect (Matter of State Farm Ins. Co. v Smith, 277 AD2d 390 [2000]). Accordingly, plaintiff’s proposed amended complaint sufficiently states a claim for legal [*2]malpractice (Deitz v Kelleher & Flink, 232 AD2d 943 [1996]; see also Tenzer, Greenblatt, Fallon & Kaplan v Ellenberg, 199 AD2d 45 [1993])."