The Fourth Department, in what we see as strong terms, reiterated that it is always the attorney’s job to prepare the case, and that responsibility may not be shifted to the client.  Even when the client participates in the preparation it remains a responsibility of the attorney. 

In Rupert v Gates & Adams, P.C. ;2011 NY Slip Op 02554 ; Decided on April 1, 2011 ; Appellate Division, Fourth Department  the AD not only says that it was the obligation of the attorneys to trace and investigate matrimonial assets, but that they themselves had to do the work.
 

"We further conclude, however, that the foregoing waiver analysis does not apply with respect to plaintiff’s aforementioned claims that defendants were negligent with respect to the investigation and valuation of plaintiff’s separate property, their investigation of the payment of the sum of $315,000 relative to a note held by plaintiff, and their investigation of the deposit by plaintiff of approximately $60,000 in pension monies into a joint account. Defendants failed to meet their initial burden on those parts of the motion concerning those claims (see Pignataro, 38 AD3d 1320; see generally Zuckerman, 49 NY2d at 562). The waiver analysis based on plaintiff’s global settlement does not apply to those purported deficiencies in defendants’ representation of plaintiff in the matrimonial action because the appeal from the final judgment in the matrimonial action would not have permitted defendants or substitute counsel for plaintiff to address questions regarding the failure to trace plaintiff’s separate property into the marriage and to locate evidence both proving plaintiff’s payment of $315,000 on an outstanding note and demonstrating that $60,000 of plaintiff’s pension monies had been transferred to a joint account to be shared with plaintiff’s former wife. Finally, defendants will not be heard to contend that plaintiff’s involvement with the preparation of the matrimonial action for trial bars him from raising those deficiencies. An attorney generally is not permitted to shift to the client the legal responsibility that the attorney was hired to undertake because of his or her superior knowledge (see Northrop v Thorsen, 46 AD3d 780, 783). Indeed, it is well settled that "[a]n attorney has the responsibility to investigate and prepare every phase of his [or her] client’s case" (Rosenstrauss v Jacobs & Jacobs, 56 AD3d 453, 453 [internal quotation marks omitted]). "

We had not thought about the time relations hp between legal malpractice and breach of fiduciary duty and how the first could become impossible while the second  could start, but the Fourth Department set it all out in Neuman v Frank ;2011 NY Slip Op 02215  ;Decided on March 25, 2011
Appellate Division, Fourth Department.  

Answering the question of whether they are duplicitive, it found that they were not, as the claims of legal malpractice applied to the time when the attorneys represented plaintiff, and a breach of fiduciary duty analysis applied to later dealings after the representation ended.
 

"Addressing defendants’ cross motion for partial summary judgment, we conclude that Supreme Court properly denied the cross motion with respect to defendant, the sole appellant. "A cause of action for legal malpractice must be based on the existence of an attorney-client relationship at the time of the alleged malpractice’ " (TVGA Eng’g, Surveying, P.C. v Gallick [appeal No. 2], 45 AD3d 1252, 1256; see Compis Servs., Inc. v Greenman, 15 AD3d 855, lv denied 4 NY3d 709). The fiduciary duty of an attorney, however, "extends both to current clients and former clients and thus is broader in scope than a cause of action for legal malpractice" (TVGA Eng’g, Surveying, P.C., 45 [*2]AD3d at 1256; see Greene v Greene, 47 NY2d 447, 453). Thus, a cause of action for legal malpractice based upon alleged misconduct occurring during the attorney’s representation of the plaintiff is not duplicative of a cause of action for breach of fiduciary duty based upon alleged misconduct occurring after the termination of the representation (see Country Club Partners, LLC v Goldman, 79 AD3d 1389, 1391; Kurman v Schnapp, 73 AD3d 435, 435-436). Although plaintiff alleged in the amended complaint that defendant’s misconduct occurred during the period from October 2004 to May 2005, when defendant represented plaintiff in transactions related to the development of a shopping center, defendant testified at his deposition that he withdrew from representing plaintiff at some point prior to April 11, 2005. Therefore, based on defendant’s own deposition testimony, defendants failed to meet their initial burden of establishing that the breach of fiduciary duty cause of action is duplicative of the legal malpractice cause of action for the period between May 2005 and the as yet unspecified date prior to April 11, 2005 when defendant ceased to represent plaintiff (see Country Club Partners, LLC, 79 AD3d at 1391; Kurman, 73 AD3d at 435-436). "

Client is a sophisticated real estate investor, and has hired attorney to do two deals already.  Both went smoothly.  Third time, client expects to lend $ 500,000 to a real estate development, and finds himself not only out the $ 500,000 but owing $ 650,000 to another lender. 

Defendant attorney says, look at the documents.  Sophisticated client investor knew exactly what he was doing.  There is no legal malpractice.  Who is right?  We see the following in Marom v Anselmo ;2011 NY Slip Op 30756(U); March 31, 2011; Supreme Court, Richmond County
Docket Number: 101440/09; Judge: Joseph J. Maltese

"Defendant correctly notes that a party who signs a document without reading it is generally bounds by its terms notwithstanding any avowed lack of knowledge of its contents (see Matter of ugustine v. BankUnited, FSB, 75 AD3d 596, 597; Martino v. Kaschak, 308 AD2d 698). Dfendant is further correct in noting that (1) the terms of these documents are clear; (2) a quick rading thereof would have apprised plaintiff that he had not been granted a first mortgage on the sbject property; (3) plaintiff was no novice to real estate investing; (4) there has been no claim that plaintiff was suffering from any disability at the time of execution or was prevented from reading the documents, and (5) plaintiff does not claim that he was forced or coerced into signing the documents, or was subjected to either fraud or misrepresentation (see Matter of Augustine v.BankUnited, FSB, 75 AD3d at 597; Pistilli v. Gandin, 10 AD3d 353, 354; Pimpinello v. Swift & Co., 253 NY 159, 162-163). However, plaintiff at bar has not challenged the binding nature of the documents which he signed or tried to avoid the terms of his agreements with the Zeers. Under similar circumstances, the Court of Appeals has held that “the binding nature of [the] agreement[s] between plaintiff and a third party is not a complete defense to the professional malpractice of [a lawyer or] law firm that [is alleged to have secured] an agreement [which operated to its client’s detriment]” (see Arnav Indus., Inc. Retirement Trust v. Brown Raysman, Millstein, Felder & Steiner, 96 NY2d 300, 304-305)
The culpable conduct of the plaintiff-client in a legal malpractice action may, nevertheless, be pleaded as a mitigating factor by way of an affirmative defense (see Cicorelli v Capobianco, 90 AD2d 524, affd 59 NY2d 626)."

When the statute of limitations begins to run and whether there is continuous representation is a constant problem in legal malpractice cases.  Here are two, which both illustrate the issue.  One went to the US Supreme Court (cert denied) and one was just affirmed at the AD level.  Both were brought by dedicated practitioners and both had significant money spent on them.  Both were dismissed.

Krichmar v Scher ;2011 NY Slip Op 02630 ;Decided on March 29, 2011 ;Appellate Division, Second Department   "To dismiss an action pursuant to CPLR 3211(a)(5) as barred by the applicable statute of limitations, a defendant must satisfy the threshold burden of demonstrating, prima facie, that the time within which to sue has expired, and once that showing has been made, the burden shifts to the opponent to establish that the statute of limitations has been tolled or that he or she actually commenced the action within the applicable limitations period (see Hebrew Inst. for Deaf & Exceptional Children v Kahana, 57 AD3d 734; Savarese v Shatz, 273 AD2d 219, 220). Here, the defendants sustained their initial burden on the motion by demonstrating that the applicable limitations period had expired with respect to all of the alleged acts of legal malpractice (see CPLR 214[6]). In [*2]response, the plaintiff failed to present evidence establishing either that she commenced the action within the applicable three-year limitations period, or that the continuous representation toll applied in this case, since all of the documentary evidence in the record supports the conclusion that the legal representation had ended more than three years before this action was commenced, and there was no mutual understanding of a need for ongoing legal representation in the underlying matter (see Zorn v Gilbert, 8 NY3d 933, 934; McCoy v Feinman, 99 NY2d 295, 306; Hasty Hills Stables, Inc. v Dorfman, Lynch, Knoebel & Conway, LLP, 52 AD3d 566, 567; Melendez v Bernstein, 29 AD3d 872, 873; Guerra Press, Inc. v Campbell & Parlato, LLP, 17 AD3d 1031, 1032). "

In Mccormick v Favreau;  2011 NY Slip Op 02506; ecided on March 31, 2011 ; Appellate Division, Third Department .  "In 1999, plaintiff Roger McCormick, acting on behalf of plaintiff Marimac, LLC, entered into an agreement to purchase  real property in the Town of Chazy, Clinton County from
defendant James Carter. Plaintiffs’ attorney in this transaction was  defendant James Coffey. Carter was represented by defendant William Favreau, an attorney with defendant O’Connell &
Aronowitz (hereinafter O & A). The purchase and sale  agreement included a provision purporting to give plaintiffs a right of  first refusal on two parcels of Carter’s property adjoining  plaintiffs’ parcel. In 2007, Carter sold one of these parcels, and  plaintiffs commenced an action seeking to enforce the right of first  refusal. The agreement was found to lack an essential term and,  thus, to be void based upon the statute of frauds. This Court  affirmed that determination (McCormick v Bechtol, 68 AD3d  1376 [2009], lv denied 15 NY3d 701 [2010], cert denied ___ US  ___, 131 S Ct 655 [2010]).
In December 2008, plaintiffs commenced this action asserting  claims of fraud against Carter, Favreau and O & A, breach of  contract and negligence against all defendants, legal
malpractice, breach of fiduciary duty and strict liability in tort against  Coffey, Favreau and O & A, breach of warranty of fitness  against Favreau and O & A, and breach of a covenant not to
compete against Carter. Defendants separately moved to dismiss  the complaint. Supreme Court found that all of plaintiffs’ claims  against Coffey, Favreau and O & A were time-barred and  dismissed the complaint against them. As to Carter, the court  dismissed all of plaintiffs’ claims except for the cause of action  for breach of the covenant not to compete. Plaintiffs appeal fnref=’1′>Plaintiffs fail to address in their brief Supreme Court’s dismissal of their strict products liability claim; accordingly, any issue with respect thereto is deemed abandoned (see e.g. William J. DeTorres III, M.D., P.C. v Claxton-Hepburn Med. Ctr., 65 AD3d 733, 735 [2009]). and Carter cross-
appeals.

  We agree with Supreme Court’s determinations as to the timeliness of plaintiffs’ claims. Plaintiffs’ claim of legal  malpractice is subject to a three-year statute of limitations which  accrued when the actionable injury occurred — that is, at the time of the  malpractice, not the time of its discovery (see CPLR 214 [6]; McCoy v Feinman, 99 NY2d 295, 301 [2002]). The alleged malpractice — the drafting and review of the defective documents — occurred in 1999, and Supreme Court thus correctly
determined that this claim was time-barred.
 

The decision in Harvey v Greenberg ;2011 NY Slip Op 02546 ;Decided on March 31, 2011 ; Appellate Division, First Department  is the second appellate decision in a new line of cases which turn the "effectively compelled to settle" standard on its head.  Here the question is whether an allouction after settlement of a matrimonial action is subject to the "effectively compelled to settle" analysis or not.  Answer:  not.
 

"Plaintiff’s allegations in support of her legal malpractice claim were conclusory, speculative and contradicted by the documentary evidence submitted on the motion to dismiss. The trial judge in the underlying matrimonial action conducted a thorough allocution on the stipulation of settlement. Plaintiff acknowledged that she understood and agreed with the terms of the settlement and knew that it was a full and final agreement. She further stated that her attorney had answered her questions and that she was satisfied with the services he provided. Under these circumstances, the motion court properly dismissed the complaint ."

Reporting obligations, payments of money, and settlement of cases.  These are all regular and usual areas for attorney attention.  In the past, settlement of medical malpractice cases definitely had rules and obligations.  Infants had to get their compromises, the infirm had to get their guardians, many a settlement had to pass judicial scrutiny.

The medical malpractice field, and by extension, the personal injury field where there will be future medical treatments or where medicare has already made payments for medical treatment has come under unusual and significant statutory treatment.  Medicare and health insurers seek reimbursement, and Medicare has statutory rights to money. 

An excellent article in today’s NYLJ, "Traps for the Unwary: Defendant’s Obligations Under Medicare" by John L.A. Lyddane and Barbara D. Goldberg graphically illustrates the many obligations under federal law for hospitals, physicians and their insurers and attorneys. 
 

"Medical malpractice liability insurers and self-insured entities that ignore the new Medicare reporting requirements do so at their peril. Not only do they face substantial penalties for non-compliance, but if the plaintiff does not reimburse Medicare from the proceeds of a settlement or judgment, the defendant and/or its insurer may be compelled to do so even if payment has already been made to the plaintiff! In such a case, double damages with interest may potentially be imposed.

Accordingly, it is no longer sufficient for defense counsel in a medical malpractice action to be knowledgeable regarding the medical issues in the case, the intricacies of HIPAA and the particular judge’s part rules in order to provide adequate representation to his or her client. Defense counsel must now assume the added burden of ensuring that timely and accurate reports are made to Medicare when a case is settled or a judgment is entered, and that adequate provision is made for reimbursement to Medicare"
 

"The reporting obligation was imposed by the Medicare, Medicaid and SCHIP Extension Act of 2007 (MMSEA), and is applicable to liability insurers and self-insured entities as of January 2011. MMSEA does not change the recovery procedures under the Medicare Secondary Payer statute,1 but strengthens the statute and reinforces Medicare’s status as a payer of last resort by requiring that defendants and their insurers take the lead in determining and reporting a plaintiff’s potential status as a Medicare recipient to the Center for Medicare and Medicaid Services (CMS) within the Department of Health and Human Services.2

Medicare’s status as a "secondary payer" means that its obligation is secondary to that of a defendant or a defendant’s liability insurer. The reporting requirements, set forth in §111 of the act, are designed to ensure that Medicare will be able to recover any "conditional payments" it previously made from the date of injury that should have been made by a "primary payer," including a self-insured defendant or a defendant’s liability insurer.3 MMSEA imposes a draconian penalty of $1,000 a day per claimant for non-compliance.4

The legislation also created the positions of Coordination of Benefits Contractor and Medicare Secondary Payment Recovery Contractor (MSPRC). These entities, essentially, are independent contractors responsible for coordinating the reporting of claims to, and facilitating the recovery of benefits paid by Medicare. The coordination of benefits process identifies primary payers to Medicare for health benefits available to a Medicare beneficiary and coordinates the payment process to prevent mistakes or the unnecessary conditional payment of Medicare benefits. The MSPRC is responsible for determining and recovering the amounts due to Medicare from personal injury claim settlements and judgments."
 

This legal malpractice traces its birth to a 2000 tolling agreement between a long lost law firm, Tenzer Greenblatt and Kramer Levin, which took place in Delaware.  In 1996 investors started what would be a bankruptcy bound law suit over an investment firm. The case is Blank Rome, LLP v Parrish ; 2011 NY Slip Op 30712(U); March 24, 2011; Sup Ct, NY County; Docket Number: 601809/05;Judge: Jeffrey K. Oing

Of relevance to the legal malpractice case was a tolling agreement reached in 2000 which held that any claims that were already too late as of that date would not be tolled, but any new claims after that date would be tolled for at least 120 days.

Of course, in 2002 a case was started against Kramer Levin with Parish using BR., which was dismissed in Supreme Court, New York County.  That dismissal was appealed, and the AD affirmed.  Tenzer Greenblatt’s successor, Blank Rome then sued for its legal fees.  The counterclaim against Blank Rome alleges that BR allowed the statute of limitations to expire on claims against KL.

Again a motion to dismiss was successful, but this time the AD reversed,  Now in a third party action agasint other attorneys we see the following:

"the principle is well settled that a law firm sued for malpractice may bring a third-party complaint
seeking indemnification or contribution from a subsequently or  concurrently retained law firm whose negligence has contributed to or aggravated the plaintiff’s damages (Soussis v. Lazer, Apthaker, Rosella & Yedid PC, 66 AD3d 993 (2d Dept, 2009); Patterson, Belknap Webb & Tyler LLP v. Bond Street Associates, Ltd.  266 AD2d 125 (1st Dept, 1991)."

Procedure is king in legal malpractice and elsewhere.  How does a good case end up in Civil Court.  Sometimes an inexperienced practitioner, or a pro-se litigant who is trying to save $ 175 might start the case in Civil Court rather than Supreme, and sometimes a judge will transfer the case pursuant to CPLR 325d rather than handle it (or sometimes to punish plaintiff’s attorney.)

Here, in Global Bus. Inst. v Rivkin Radler, LLP ; 2011 NY Slip Op 01941 ; Decided on March 17, 2011 ; Appellate Division, First Department  we see plaintiff’s attorney successfully get the case back to Supreme Court. 
 

"The motion court improvidently exercised its discretion in denying plaintiff’s motion. Leave to amend the pleadings is freely granted, absent prejudice (see Mandel, Resnik & Kaiser, P.C. v E.I. Elecs., Inc., 41 AD3d 386, 388 [2007]; see also Loomis v Civetta Corinno Constr. Corp., 54 NY2d 18 [1981]), and plaintiff has stated, at this juncture, a cognizable claim against defendant law firm for failure to sufficiently advise it of the consequences of the tax escalation clause in the lease it eventually executed with its landlord several months after retaining defendant (see Escape Airports (USA), Inc. v Kent, Beatty & Gordon, LLP, 79 AD3d 437 [2010]). Furthermore, in view of the foregoing and the additional damages sought, the matter should be transferred to Supreme Court (see Firequench, Inc. v Kaplan, 256 AD2d 213 [1998]). "