Client sues attorneys for legal malpractice, and attorneys counterclaim against client for "contribution and indemnity."  When may this properly go forward?  What is "contribution" and what is "indemnity" ?

Contribution is the apportionment of  fault among joint tortfeasors.  Several contractors who each negligently damage a tenant might seek contribution among themselves. 

Indemnity is the situation in which one party is only vicariously liable to plaintiffr and entitled to full recovery froma defendant who committed the wrong.  A passive landlord might successfully seek indemnity from a negligent contractor who damages a tenant.

In 180 E. 88th St. Apt. Corp. v Law Off. of Robert Jay Gumenick, P.C. ; 2011 NY Slip Op 04096 ; decided on May 17, 2011 ;Appellate Division, First Department  we see that indemnity is not always available to the attorney against the client.

"The motion court’s dismissal of the Law Firm’s counterclaims for contribution and indemnification from the corporate board and its members named as counterclaim-defendants, was proper, inasmuch as the challenged action by the board was undertaken in good faith and within its capacity as representative of the cooperative corporation and, in any event, such claims by the Law Firm may only be asserted against a culpable client by way of an affirmative defense, as a mitigating factor in the attorney’s negligence (see Arnav Indus., Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner, 96 NY2d 300, 305 note 2 [2001]). "

One of the crucial questions to be asked in legal malpractice litigation is when did the representation end.  This question comes only shortly after the question of when did the negligent event take place.  The statute of limitations is three years from the negligent event or the last date that the attorneys represented the client, whichever is later.

Years ago it was possible to extend that time to 6 years, under a breach of contract theory, but the legislature simply voted that method away.  Here, in  Daniels v Turco ; 2011 NY Slip Op 03990
Decided on May 10, 2011 ;Appellate Division, Second Department  we see how the theory plays out.
 

"The cause of action alleging legal malpractice accrued no later than April 18, 2005, when the defendants returned the case file to the plaintiff with an accompanying letter of discharge. That date was more than three years before the commencement of this action in June 2009 (see CPLR 214[6]; McCoy v Feinman, 99 NY2d 295, 301; Tsafatinos v Lee David Auerbach, P.C., 80 AD3d 749). Contrary to the plaintiff’s assertion, there was no evidence of any continuous ongoing relationship between the plaintiff and the defendants after the file was returned and, therefore, the continuous representation doctrine is not applicable (see Shumsky v Eisenstein, 96 NY2d 164, 168-171; Marro v Handwerker, Marchelos & Gayner, 1 AD3d 488; Daniels v Lebit, 299 AD2d 310; Wester v Sussman, 287 AD2d 618). Accordingly, the Supreme Court properly granted that branch of the defendants’ motion which was for summary judgment dismissing the legal malpractice cause [*2]of action as time-barred (see CPLR 214[6]; Adler v Gershman, 305 AD2d 342, 342-343).

In addition, the plaintiff’s cause of action sounding in fraud was duplicative of the legal malpractice cause of action, because it arises from the same facts as the legal malpractice cause of action and does not allege distinct damages (see Tsafatinos v Lee David Auerbach, P.C., 80 AD3d at 749; Kvetnaya v Tylo, 49 AD3d 608, 609; Daniels v Lebit, 299 AD2d at 310; Mecca v Shang, 258 AD2d 569, 570). Accordingly, the fraud cause of action is likewise subject to the three-year limitations period (see Tsafatinos v Lee David Auerbach, P.C., 80 AD3d 749, 750), and the Supreme Court properly granted that branch of the defendants’ motion which was for summary judgment dismissing the fraud cause of action as time-barred. "

When might an  attorney be liable to a non-client for legal malpractice?  ""The law in New York does not recognize any liability on the part of an attorney to a nonclient third party for injuries sustained as a result of an attorney’s actions in representing his client absent fraud, collusion, or a malicious or tortious act" (Doo v Berger, 227 AD2d 435, 436 [1996]). Brown v Mohammed
2011 NY Slip Op 50847(U); Decided on May 12, 2011 ; Supreme Court, Kings County ; Lewis, J. tells us the story of one such instance.
 

"This case involves an alleged fraudulent deed to the premises at 285 East 55th Street in Brooklyn (premises), and an alleged related money laundering scheme. Defendant Ricardo Mohammed (Mohammed) purchased the premises from plaintiffs, Agnes Alston and Selma Gunther Brown (plaintiffs) on March 23, 2007, but plaintiffs dispute the validity of the sale and argue that the contract of sale and deed are unenforceable.
Option One concurrently provided a mortgage loan to Mohammed to purchase the disputed premises on March 23, 2007. It alleges that it wired the $458,317.03 loan proceeds into the IOLA (i.e., the "interest on lawyer account") of third-party defendant Natasha Pierre (Pierre), who represented Option One as its closing agent on the Mohammed mortgage. Option One further alleges that Pierre simultaneously and improperly represented Mohammed in the real-estate transaction; that Pierre received the wired funds from Option One; and that Pierre issued six checks totaling $415,337.46, each payable to George Alston, husband of plaintiff Agnes Alston. The Alstons held an undivided one-half interest in the disputed premises, but Mr. Alston had died on January 26, 2001Option One additionally alleges in its fourth cause of action (Id. at ¶ 58) that third-party defendant Abakporo, an attorney, deposited the six checks, endorsed "George Alston" and "Eric Abakporo" to his own IOLA. The present motion to dismiss and cross motion for default judgment concern Option One’s third-party complaint against Abakporo.

Abakporo contends that a man purporting to be George Alston, along with his alleged grandson Mark Bailey, appeared at Abakporo’s law office on March 26, 2007. Abakporo further alleges that this purported George Alston gave him a New York State Identification Card and the checks which had been issued by Pierre. The purported George Alston allegedly asked Abakporo to deposit the funds into Abakporo’s escrow account and to later release the funds to Mark Bailey. However, the individual who identified himself as Mark Bailey then informed Abakporo that he did not have a checking account and requested that Abakporo issue the funds to his alleged brother, Juan Pimentel. Abakporo complied with these requests and issued checks totaling over $400,000 in April 2007 from his escrow account to Juan Pimentel, who has since been indicted for his role in this scheme.

Finally, Option One alleges regarding Abakporo that Abakporo "negligently, recklessly or intentionally allowed his attorney IOLA account to be used to launder funds stolen from Option One." Here, Option One has set forth factual allegations bringing this case into one of the quoted exceptions. Option One in other words alleges that Abakporo committed a "tortious act" by converting Option One’s funds and/or colluding with Pimintel in the apparent money laundering scheme. Such allegations enable Option One’s claim sounding in attorney malpractice to stand. Overall, the adequately pleaded claims for conversion, aiding and abetting conversion and attorney malpractice negate Abakporo’s motion to dismiss Option One’s third-party complaint. "

There is little (or no) factual underpinning to this legal malpractice case, and no explanation of  the various positions taken by the parties.  In Pistilli Constr. & Dev. Corp. v Epstein, Rayhill & Frankini ; 2011 NY Slip Op 04025 ; Decided on May 10, 2011 ; Appellate Division, Second Department we directly learn only that the law firm wins summary judgment.  Let us try to guess who is who, and why?
 

We see that Plaintiff construction company is represented by a litigation firm in Long island, and that plaintiff is a corporation.  We see that plaintiff attempted to bring in an insurance carrier as being vicariously liable in the matter.  It is our guess that plaintiff was itself a defendant in a tort case, was represented by defendant and that the underlying action did not go well.  We further guess that the carrier did not want to settle the case, or offered advice contrary to plaintiff’s expectations.

You take a look and make your own guess.

"Here, in support of the defendants’ motion for summary judgment dismissing the complaint, they demonstrated, prima facie, that the plaintiff was unable to establish that the alleged negligence of the defendants Epstein, Rayhill & Frankini (hereinafter the law firm) and Mona C. Haas proximately caused the loss sustained. In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court properly dismissed the first cause of action alleging legal malpractice asserted against those defendants (see Boone v Bender, 74 AD3d 1111, 1112-1113; Boglia v Greenberg, 63 AD3d 973, 974; Kotzian v McCarthy, 36 AD3d 863).

Regarding the second cause of action, "[a] claim of vicarious liability cannot stand when there is no primary liability upon which such a claim of vicarious liability might rest’" (Pereira v St. Joseph’s Cemetery, 54 AD3d 835, 837, quoting Karaduman v Newsday, Inc., 51 NY2d 531, 546). Accordingly, the Supreme Court properly dismissed the second cause of action, which sought to hold the defendant Nationwide Mutual Insurance Company (hereinafter Nationwide) vicariously liable for the alleged malpractice of the law firm and Haas. Furthermore, the facts of this case do not give rise to an [*2]equitable estoppel claim against Nationwide, as it never assumed the defense of the plaintiff in the underlying action (cf. Brooklyn Hosp. Ctr. v Centennial Ins. Co., 258 AD2d 491; Touchette Corp. v Merchants Mut. Ins. Co., 76 AD2d 7, 12). Therefore, the Supreme Court also properly dismissed the plaintiff’s third cause of action."
 

The early days of the 20th century brought us the Robber barons, and the rise of corporations.  The interconnectedness and remote nature of the relationships challenged the Courts, and led to a school of "better practice" business aspiration.  Today, as long as a profit motive exists, there will be arrangements between persons which are created to mask the true nature of financial relationships. South Shore Neurologic Assoc., P.C. v Ruskin Moscou Faltischek, P.C. ; 2011 NY Slip Op 50801(U) ; Decided on May 4, 2011 ; Supreme Court, Suffolk County ; Pines, J. is a prime example. We urge you to read the facts to determine the relationship between the law firm and its numerous corporate clients.  Here are the rules, put forth by Justice Pines, to determine whether there has been breach of fiduciary duty.
 

"In order to establish a claim for breach of fiduciary duty, a Plaintiff is required to demonstrate 1) the existence of a fiduciary relationship; 2) misconduct by the Defendant; and 3) damages directly caused by such conduct. Kurtzman v Bergstol, 40 AD3d 588, 835 NYS2d 644 ( 2d Dep’t 2007). Whether a fiduciary relationship exists between parties is necessarily fact specific. AG Capital Funding Partners, LP v State Street Bank and Trust Co, 11 NY3d 146, 866 NYS2d 578, 896 NE2d 91 (2008). An attorney stands in a fiduciary relationship to his or her client, Graubard Mollen Dannett & Horowitz v Moscovitz, 86 NY2d 112, 629 NYS2d 1009, 653 NE2d 1179 (1995), and is thus charged with a high degree of undivided loyalty to his or her client. Kelly v Greason, 23 NY2d 368, 296 NYS2d 937, 244 NE2d 456 [*5](1968). However, a violation of a disciplinary rule, without more, is insufficient to state an action for breach of fiduciary duty. Schwartz v Olshan Grundman Frome & Rozensweig, 302 AD2d 193, 753 NYS2d 482 (1st Dep’t 2003).

The statute of limitations for breach of fiduciary duty is dependent on the substantive remedy sought by the plaintiff. Thus, a six year statute applies, where equitable relief is sought; and a three year statute applies where the "injury to property" is the gravamen of the action. CPLR §§213(1), 214. The claim accrues, for statue of limitations purposes, when the fiduciary has repudiated his or her obligation. Westchester Religious Institute v Kamerman, 262 AD2d 131, 691 NYS2d 502 (1st Dep’t 1999).  Westchester Religious Institute v Kamerman, 262 AD2d 131, 691 NYS2d 502 (1st Dep’t 1999). The doctrine of "continuous representation" tolls the running of this statute where the claim is brought against an attorney fiduciary but only so long as the defendant continued to represent the Plaintiff in connection with the transaction that is the subject of the action as opposed to general representation. Transport Workers Union of America Local 100 AFL-CIO v Schwartz, 32 AD3d 710, 821 NYS2d 53 (1st Dep’t 2006).

Under the Code of Professional Responsibility (now the Rules of Professional Conduct, 22 NYCRR 1200 et. seq.) a lawyer may not concurrently represent clients with adverse interests nor take on a new client whose interests are adverse to an existing client. Where an attorney represents multiple clients and a situation arises posing potential conflicts among them, the attorney may not undertake the representation of any of the clients unless continued involvement is with the full consent of all parties upon complete disclosure. Kelly v Greason, supra. Whether an attorney-client relationship exists depends on the actions of the parties, as there are no set of rigid rules as to what is required to form an attorney-client relationship. See, McLenithan v McLenithan, 273 AD2d 757, 710 NYS2d 674 (3d Dep’t 2000).

In an action for fraud, a plaintiff must demonstrate that the defendant misrepresented or omitted a material fact which was false and known to be false and made for the purpose of the other party to rely upon it, justifiable reliance by such party on the misrepresentation or material omission, and injury resulting therefrom. Ross v Louise Wise Services, 8 NY3d 478, 836 NYS2d 509, 868 NE2d 189 (2007); see, Graubard Mollen Dannett & Horowitz v Moscovitz, 86 NY2d 112, 629 NYS2d 1009, 653 NE2d 1179 (1995). In this vein, an attorney may be liable to non-clients for wrongful acts if guilty of fraud or collusion or of a malicious or tortious [*6]act. Koncelik v Abady, 179 AD2d 942, 578 NYS2d 717, Callahan v Callahan, 127 AD2d 298, 514 NYS2d 819 (3d Dep’t 1987). The statute of limitations for fraud is six years from the accrual of the claim or within two years from the actual or imputed discovery of the fraud. CPLR 213 (8), 203 (f); see, Trepuk v Frank, 44 NY2d 723, 405 NYS2d 452, 376 NE2d 924 (1978). As with the claim for breach of fiduciary duty, the continuous representation doctrine tolls the running of the statute of limitations against a professional defendant, but only so long as the defendant continues to represent the plaintiff in connection with the transaction and not merely the continuation of the general professional relationship. Transport Workers Union of America Local 100 AFL-CIO v Schwartz, supra. Punitive damages are not recoverable in the ordinary fraud case, but may be recovered where the fraudulent act is gross, involves high moral culpability and is aimed at the general public. Walker v Sheldon, 10 NY2d 401, 223 NYS2d 488, 179 NE2d 497 (1961).

Finally, one who owes a duty of fidelity or loyalty to another and is faithless in performance of such duty is generally disentitled to recover compensation for his services. Feiger v Iral Jewlry Ltd, 41 NY2d 928, 394 NYS2d 626, 363 NE2d 350 (1977). "

Attorney fee suits lead to interesting further proceedings.  An oft cited piece of advice at CLEs is that attorney fee suits invite legal malpractice counterclaims.  Here is one. They do not always succeed.  However, was it worth the $6000 fee case?

In Richard A. Kraslow, P.C. v LoGiudice ;  2011 NY Slip Op 50823(U) ;  Decided on May 5, 2011
Appellate Term, Second Department.  Attorney represented client in a divorce and spouse died during the proceedings.  Client then participated in the Surrogate’s court case, and alleges big losses there. "Plaintiff and defendant had executed a retainer agreement, dated January 28, 2002, which governed the legal services rendered during the matrimonial action. They did not execute another retainer agreement for the Surrogate’s Court action. Plaintiff commenced this action to recover damages for breach of contract and unjust enrichment after defendant had failed to pay for the legal services which plaintiff had rendered in connection with the Surrogate’s Court action.

Defendant answered and, in addition to interposing various affirmative defenses, asserted the following counterclaims: first, the matrimonial action and retainer agreement had terminated on April 15, 2002, upon the death of defendant’s wife, whereupon the parties had failed to execute a subsequent agreement; second, plaintiff had failed to timely file a right of election against defendant’s wife’s estate, resulting in damages in the amount of $66,000; third, plaintiff had not challenged the validity of a waiver agreement whereby defendant had disclaimed his status as the sole beneficiary of his wife’s pension benefits, resulting in damages in the amount of $109,000; fourth, plaintiff had improperly advised defendant to stop paying the mortgage on the marital residence, which had resulted in a foreclosure action and damages "in an amount of not
less than $100,000"; fifth, that plaintiff should refund the money that defendant had paid him under the retainer agreement in the amount of $5,090 because the retainer agreement was "legally [*2]deficien[t]"; sixth, plaintiff had been unjustly enriched in the amount of $5,090 because the retainer agreement was "legally deficient"; seventh, that plaintiff should refund the money defendant had paid him after the alleged termination of the retainer agreement in the amount of $6,950; eighth, plaintiff had been unjustly enriched in the amount of $6,950; and ninth, plaintiff was not entitled to damages for any legal services rendered to defendant after April 15, 2002.

Plaintiff moved for summary judgment seeking to dismiss the counterclaims in their entirety. The District Court denied the motion with respect to all the counterclaims except the fourth. Plaintiff appeals from so much of the order as denied the various branches of its motion.

Inasmuch as both the first and ninth counterclaims do not contain a demand for affirmative relief, the District Court should have granted the branches of plaintiff’s motion for summary judgment seeking to dismiss them.

With respect to the second counterclaim, defendant failed to rebut plaintiff’s proof that defendant was unable to establish his legal malpractice action. To succeed on a motion for summary judgment dismissing a counterclaim for legal malpractice, a plaintiff "must demonstrate that the [defendant] is unable to prove at least one of the essential elements of its legal malpractice cause of action" (Boglia v Greenberg, 63 AD3d 973, 974 [2009]; see Kotzian v McCarthy, 36 AD3d 863 [2007]). In response, the defendant is required to show that the plaintiff "failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney’s breach of this duty proximately caused [the defendant] to sustain actual and ascertainable damages" (Mueller v Fruchter, 71 AD3d 650 [2010] [internal citations omitted]).

Plaintiff submitted a sworn affidavit averring that he had reached a favorable tentative settlement with the estate of defendant’s deceased wife in the amount of
$100,000. In response, defendant failed to proffer any evidence that he had sustained actual and ascertainable damages resulting from plaintiff’s decision to pursue one strategy in the Surrogate’s Court action rather than another (Collard & Roe, P.C. v Vlacancich, 6 Misc 3d 17, 18-19 [App Term, 9th & 10th Jud Dists 2004]). Consequently, the District Court should have dismissed the second counterclaim.

With respect to the third counterclaim, defendant failed to rebut plaintiff’s proof that defendant did not establish that he had signed the waiver of pension benefits under mental duress. Likewise, defendant’s fifth and sixth counterclaims have "no merit" because defendant failed to either rebut plaintiff’s proof that the retainer agreement was legally sufficient or specify any legal theory upon which relief could potentially be granted (Ventura v Fischer, 21 Misc 3d 131[A], 2008 NY Slip Op 52124[U], *2 [App Term, 2d & 11th Jud Dists 2008]; see CPLR 3212 [b]). [*3]

Finally, the District Court should have dismissed the seventh and eighth counterclaims because plaintiff’s alleged violation of 22 NYCRR 1215.1, in and of itself, is not a ground for the disgorgement or refund of already paid attorney’s fees (see Jones v Wright, 16 Misc 3d 133[A], 2007 NY Slip Op 51494[U] [App Term, 9th & 10th Jud Dists 2007]; Constantine Cannon LLP v Parnes, 2010 NY Slip Op 31956[U], *16 [Sup Ct, NY County 2010]).

Accordingly, the order insofar as appealed from, is reversed and the branches of plaintiff’s motion for summary judgment seeking to dismiss defendant’s first, second, third, fifth, sixth, seventh, eighth and ninth counterclaims are granted. "

Is a motion for summary judgment in a legal malpractice case timely or not?  One Supreme Court Justice says that it is, and one says that it is not?  is the first decision the law of the case or not?  Is the Appellate Division bound by an earlier decision?  How can two learned justices disagree with eachother?  Which is right?  How is that right decision to become law?

in Powell v Kasper ;2011 NY Slip Op 04027 ; Decided on May 10, 2011 ; Appellate Division, Second Department we see one deft answer.
 

"At the outset, the doctrine of the law of the case "applies . . . to legal determinations that were necessarily resolved on the merits in [a] prior decision" (Lehman v North Greenwich Landscaping, LLC, 65 AD3d 1293, 1294 [internal quotation marks omitted]). Here, the order dated November 25, 2009, in effect, addressed the parties’ arguments as to whether Kasper’s summary judgment motion, originally filed on August 19, 2009, was timely pursuant to the parties’ stipulation. As such, upon Kasper’s resubmission of his summary judgment motion to Justice Kelly, the Supreme Court was barred from making a new determination on the issue of the motion’s timeliness (see Martin v City of Cohoes, 37 NY2d 162, 165; RPG Consulting, Inc. v Zormati, 82 AD3d 739; Baldasano v Bank of N.Y., 199 AD2d 184, 185). [*2]However, because the law of the case doctrine does not bind an appellate court (see Martin v City of Cohoes, 37 NY2d at 165; White Plains Plaza Realty, LLC v Town Sports Intl., LLC, 79 AD3d 1025, 1027; Lehman v North Greenwich Landscaping, LLC, 65 AD3d at 1295), we must consider whether Kasper’s motion was untimely pursuant to the 90-day deadline set forth in the stipulation.

The stipulation provides, in pertinent part, that "[a]ny party may submit a summary judgment motion within 90 days following completion of EBTs." The record indicates that depositions were completed on April 24, 2009.

It is undisputed that Kasper did not file his original summary judgment motion until August 19, 2009, which was several weeks beyond the 90-day deadline set forth in the stipulation. As such, Kasper’s summary judgment motion was untimely pursuant to the terms of the stipulation (see Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725, 727; Brill v City of New York, 2 NY3d 648, 652; Castro v New York City Health & Hosps. Corp., 74 AD3d 1005, 1006). "

We’ve discussed the oft-found fact situation of how a fee determination by a bankruptcy court may block a later legal malpractice action. In Breslin Realty Dev. Corp. v Shaw ; 2010 NY Slip Op 00087 Decided on January 5, 2010; Appellate Division, Second Department; Chambers, J., J. the court writes persuasively about the concept:
 

"In bankruptcy proceedings, the general rule arising under 11 USC § 330(a)(4) is that "a finding of malpractice would mean that the attorneys were not entitled to compensation for those services found to be substandard" and, accordingly, failure to raise the malpractice claims when the final fee applications were considered and approved by the Bankruptcy Court barred later litigation of such claims under principles of res judicata (In re Iannochino, 242 F3d 36, 42; see Grausz v Englander, 321 F3d 467; Osherow v Ernst & Young [In re Intelogic Trace], 200 F3d 382; cf. Clement v Brumfield, 2004 Cal. App. Unpub. LEXIS 1031, citing Matter of Boddy, 950 F2d 334). Res judicata bars future litigation between the same parties or those in privity arising out of transactions giving rise to a cause of action which could have been raised in a prior bankruptcy proceeding (see Truesdell v Donaldson, Lufkin & Jenrette Sec. Corp., 281 AD2d 334; Evergreen Bank v Dashnaw, 246 AD2d 814). An exception lies if the plaintiff was deceived in the prior action or proceeding (see Izko Sportwear Co. Inc., v Flaum, 25 AD3d 534; Penthouse Media Group v Pachulski Stang Ziehl & Jones [US Dist Ct, SD NY, 9 Civ 85, Scheindlin, J., 2009]).

Applying these principles, we conclude that the final award of fees in the bankruptcy proceeding bars the plaintiffs’ malpractice claim based upon the same services in the present litigation. The final fee award in the bankruptcy proceeding was a determination on the merits, barring the legal action sounding in legal malpractice pursuant to the doctrine of res judicata (see Izko Sportwear Co. Inc. v Flaum, 25 AD3d 534).

Further, we are unpersuaded that there is evidence in this case that the defendants deceived the debtors or the Bankruptcy Court. The June 2003 agreement demonstrates that the plaintiffs were aware of the factual basis of their malpractice claim at the time of the defendants’ fee application. Moreover, the June 2003 agreement was drafted at least in part by separate and independent counsel—the Dollinger law firm. Thus, on the date that the Bankcuptcy Court entered the defendants’ final award, December 15, 2003, the debtors had ample opportunity to raise their malpractice claims as objections to the fee award. Accordingly, we conclude that the plaintiffs failed to meet their burden of demonstrating under the doctrine of collateral estoppel that they lacked a full and fair opportunity to litigate the legal malpractice claim in the Bankruptcy Court (see Izko Sportswear Co. Inc. v Flaum, 25 AD3d 534; cf. Penthouse Media Group v Pachulski Stang Ziehl & Jones [US Dist Ct, SD NY, 9 Civ 85, Scheindlin, J., 2009]). "