"Questions of judgment" or "strategies at trial" are frowned upon as legal malpractice departures.  A strong body of law holds that trial is an art and not a science, and choices of strategy, even though eventually losers, will not be the means to a successful legal malpractice case.  Selection of witnesses, of experts, and of the questions to ask at trial (just to name a few) are unsuccessful claims.

In O’Callaghan v Brunelle ; 2011 NY Slip Op 04095 ; Decided on May 17, 2011 ; Appellate Division, First Department found that  the "allegations that defendants’ failure to call the witness, who consented to the NYSE’s Hearing Panel’s finding that he engaged in conduct constituting improper trading arrangements and violated various rules, constituted legal malpractice "  were insufficient, and in fact, refuted by the documentary evidence.
 

Put more simply, a failure to call a witness will rarely support a legal malpractice case.  In a different setting the failure to call an alibi witness might be ineffective assistance of counsel, but the standards, and the way the AD looks at these situations is just a polar opposite.

"Standing" is the concept of a right to sue.  In legal malpractice there is a very strict requirement that only a client (with very limited exceptions) may sue the attorney.  Were this not so, every case would end with a legal malpractice started by the loser, and sometimes, the winner.

So, in Brooklyn Elec. Supply Co., Inc. v Jasne & Florio, LLP ; 2011 NY Slip Op 04186 ; Decided on May 17, 2011 ; Appellate Division, Second Department we see a highly technical, but true and effective defense to legal malpractice.  In essence, it says that the client never existed and hence may not now sue.
 

"The defendant established, prima facie, that the plaintiff, a dissolved corporation, lacked the capacity to sue because the plaintiff had been dissolved before the defendant was retained, and this legal malpractice action does not relate to the plaintiff’s winding up of its corporate affairs (see Business Corporation Law §§ 1005[a][1], 1006[a][4]; [b]; Matter of 172 E. 122 St. Tenants Assn. v Schwarz, 73 NY2d 340, 348-349; Moran Enters., Inc. v Hurst, 66 AD3d 972, 975-976; 2 N. Broadway Food, Inc. v Anduze, 33 AD3d 992; Syzygy Sys. Corp. v Bader, 243 AD2d 336). The plaintiff failed to raise a triable issue of fact to rebut the defendant’s prima facie showing of entitlement to judgment as a matter of law (see Lorisa Capital Corp. v Gallo, 119 AD2d 99, 110). "

Plaintiff’s decedent goes to a Queens motel and is shot dead.  The shooter eventually pleads guilty to manslaughter.  How much time does the estate have to sue the shooter, the hotel and was it given correct advice on the statute of limitations by its attorney?

Ross v Saravanos ;2011 NY Slip Op 31310(U) ; May 8, 2011; Supreme Court, New York County
Docket Number: 108017/2010; Judge: Emily Jane Goodman tells us that the shooter was sued in plenty of time, but the hotel was not, and that a case against the attorneys may continue on in legal malpractice.

"on December 4, 2004, Ross was shot by defendant Saravanos (Saravanos), while on the  premises of a hotel located in Queens, New York, owned, operated, managed and
maintained by the Hotel Defendants. that Ross died that day, as a result of being shot by Saravanos. On November 19, 2009, Saravanos pled guilty to First Degree Manslaughter (Penal Law 1 2 5 . 2 0 ) , and on December 15, 2009, he was sentenced to 13 years in prison and five years of post-release .parole supervision.

On or about December 5, 2005, the Surrogate’s Court issued to plaintiff Letters of Guardianship (of property) of Elijah Franklin Osman Ross, the son of Robert L. Ross. On or about July 30, 2009, the Surrogate’s Court issued Letters of Administration of the property of the Estate of Robert F. Ross to plaintiff. Plaintiff filed this action againat the Hotel Defendants and GASK on June 17, 2010. Plaintiff alleges that the Hotel Defendants owed a duty to its guests, were negligent in
permitting Saravanos to enter the hotel and remain on the premises, and failed to take reasonable precautions to insure the safety of its guests. With respect t o GASK, plaintiff alleges
that she had retained the defendant law firm to represent her in connection with her efforts to obtain the Letters of Guardianship and Letters of Administration, and that GASK knew or should have known that she intended to file litigation in connection with " the death.

"Plaintiff also argues that the claims against the Hotel Defendants are timely under CPLR 213-b, which extends the statute of limitations for personal injury actions brought by victims of
a crime, against ‘a defendant: (1) convicted of a crime which is the subject of such action." CPLR 213-b. However, as the Court ruled in Vasquez v Wood (18 AD3d 645, 646 [2d Dept Z O O S l ) , the
Hotel Defendants have not been convicted of a crime, and there have been no cases which broaden the applicability of this provision as the First Department has broadened CPLR 215 (8) in
Alford. Accordingly, the motion to dismiss is granted.

Plaintiff alleges that the failure by GASK to inform her of the applicable statute of limitations for her claim against the Hotel Defendants constitutes legal malpractice. GASK moves to dismiss the complaint as against it contending that since plaintiff has argued that the statute of limitations has been tolled by operation of either CPLR 215 ( 8 ) or CPLR 213-b, and, thus, her case against the Hotel Defendants was timely commenced, she should not be permitted to simultaneously argue that GASK has committed malpractice by failing to apprise her of the proper statute of limitations. Plaintiff may however assert alternate causes of action even though they may be inconsistent.
See CPLR 3014.
 

ORDERED on Motion Sequence Number 002, that the motion of defendant Goldfarb, Abrandt, Salzman & Kutzmin, LLP is denied.

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). "