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]). "

The question of whether there is a different statute of limitations for fraud or breach of contact when dealing with attorneys often arises.  After all, it is a 6 year statute everywhere, is it not?  The short answer is "no" and the longer answer is that the legislature gave attorneys special protection.  After the Court of Appeals permitted a 6 year statute for breach of contract against attorneys, the legislature closed the "loophole".  Now the rule is bright-line: 3 years.

In Tsafatinos v Lee David Auerbach, P.C. ; 2011 NY Slip Op 00503 ; Decided on January 25, 2011 Appellate Division, Second Department  we see the outcome. 

" The Supreme Court properly granted the defendants’ separate motions pursuant to CPLR 3211(a) to dismiss the complaint. The statute of limitations applicable to actions sounding in legal malpractice is three years "regardless of whether the underlying theory is based in contract or tort" (CPLR 214[6]). The plaintiffs’ causes of action sounding in breach of contract and breach of fiduciary duty are based on the same facts underlying their legal malpractice cause of action and do not allege distinct damages. Accordingly, they are duplicative of the legal malpractice cause of action (see Symbol Tech., Inc. v Deloitte & Touche, LLP, 69 AD3d 191, 199; Town of N. Hempstead v Winston & Strawn, LLP, 28 AD3d 746, 749; Mecca v Shang, 258 AD2d 569), and likewise subject to the three-year limitations period (see Harris v Kahn, Hoffman, Nonenmacher & Hochman, LLP, 59 AD3d 390; Melendez v Bernstein, 29 AD3d 872).

The limitations period begins to run from the time of the alleged malpractice, not from the time of discovery (see Shumsky v Eisenstein, 96 NY2d 164, 166; 730 J & J, LLC v Polizzotto & Polizzotto, Esqs., 69 AD3d 704)"

This disciplinary proceedings makes for a shocking read.  This attorney went from a successful practice, to a legal malpractice claim, to a huge judgment against him in Federal Court, to the twists and turns which led to incarceration.  Why?  Because of a lie in a resume.  in Matter of Dorfman ;2011 NY Slip Op 00440 ;Decided on January 27, 2011 ;Appellate Division, First Department ;Per Curiam we see what happens when an attorney doesn’t want to pay a judgment.  Eventually he reduces the payment to $ 50,000 but look what he ended up doing:

"After being hired by Baker to bring suit against the New York City Department of Health as a result of a medical testing error, respondent failed to file a timely notice of claim and failed to seek leave to file a late notice, resulting in dismissal of the action and prompting Baker to bring suit for legal malpractice and fraud in the Southern District of New York (Baker v Dorfman, 1999 WL 191531 [SD NY 1999], affd 239 F3d 415 [2nd Cir 2000]). A federal jury found that respondent had indeed induced Baker to retain him by furnishing a resume that patently misrepresented respondent’s experience as a litigator. The jury awarded Baker compensatory damages of $360,000 and punitive damages of $25,000 (id.). 

After respondent repeatedly failed to make payments required under the agreement, the federal court modified its order and imposed various restrictions on respondent, inter alia, limiting his business and personal expenditures and generally confining his personal travel to the City of New York and his business travel to New York State and New Jersey (Baker v Dorfman, 2006 WL 988756)[SD NY 2006]. The order was subsequently modified and certain provisions added, but respondent’s compliance was still not forthcoming. The federal court — indicating that respondent may have violated added requirements to report expenses in excess of $100, to limit hiring at his law firm and restrict support staff to two full-time staff members — referred the matter for prosecution by the United States Attorney for the Southern District of New York (Baker v Dorfman, 2006 WL 988747 [SD NY 2006]). Respondent ultimately pleaded guilty to one count of criminal contempt in violation of 18 USC § 401(3), and on December 19, 2007, the court sentenced him to two years’ probation, including six days’ community confinement in a halfway house.

In testimony before a Hearing Panel in October 2009, respondent disclosed that in the Spring of that year, after the instant "serious crime" petition was filed, he settled the Baker judgment for $50,000 using money provided by his wife.As to his violation of probation, on May 28, 2009, respondent pleaded guilty to traveling outside the judicial district without court leave — to Paris in 2008 and to Rome in March 2009. Respondent also pleaded guilty to lying to a probation officer in March 2009 concerning the Paris trip, which he only acknowledged after being required to produce his passport for inspection. While professing unawareness of the travel restrictions before the Hearing Panel, respondent had conceded such knowledge at his plea allocution some four months earlier. In a post-hearing submission that included documents relevant to his probation violation, respondent admitted that, in addition to the two European trips, he had traveled to Arizona and Boston in 2008 without court leave. 

On August 6, 2009, respondent was sentenced in Federal District Court on the probation violation. While commenting on respondent’s "various dishonest and deceptive maneuvers to avoid paying a judgment that he owed Mr. Baker," which was construed as a "pattern of deception," the court concluded that "this is something deeply embedded in his character, not [*4]something that’s going to change . . . during a period of supervision." The court thereupon sentenced respondent to 30 days’ imprisonment without any further period of supervision. "

Dorf was suspended for a year by the Committee.

Cruciata v Mainiero ;2011 NY Slip Op 50066(U) ;Decided on January 14, 2011 ;Supreme Court, New York County ;James, J.  is a very interesting example of the premise that if you keep showing up and keep at it, a better result may very well follow.  In this case, a matrimonial action, plaintiff was awarded a divorce and some equitable distribution after a settlement.  She perservered and won reversal of the stipulation in the AD.  She went back and basically doubled her equitable distribution.
In the meanwhile, her legal malpractice case was dismissed, and again, she went to the AD, who, again, reversed Supreme Court.  Now, she perserveres through a motion for summary judgment.

"In his motion, Mainiero argues that Cruciata cannot establish that, "but for" his purported malpractice, "she would have obtained a better result."[FN1] Mainiero specifically argues first, that Cruciata cannot establish that his actions cost her the right to have a trial, since Cruciata herself chose to settle her divorce action rather than go to trial on both occasions when she was offered a choice. Mainiero also argues that Cruciata cannot establish that his actions adversely affected her right to custody of her children, because she chose not to litigate that issue after the Appellate Division, Second Department, vacated the original stipulation of settlement in her divorce action. Mainiero also argues that Cruciata cannot establish that his actions adversely affected her right to an equitable distribution of her marital property, since it was established that her ex-husband had not hidden any assets, and that the increase in her equitable distribution award was intended solely to compensate her for the large amount of legal fees she had spent in seeking those non-existent assets.

In her cross motion, Cruciata concedes both that she did have the right to a trial in her divorce action, but chose to forego it, and that she also chose not to litigate the issue of custody. However, Cruciata disputes Mainiero’s contentions regarding equitable distribution, and specifically argues that, during the second settlement of her divorce action, she and her ex-husband treated the issues of equitable distribution and of compensating her for legal expenditures separately. Cruciata also claims that Mainiero, and not her ex-husband, is the party who should reimburse her for the legal fees that she incurred in re-opening and re-settling her divorce action. Mainiero’s reply papers restate his original arguments, but do not address [*5]Cruciata’s contention that he is the party liable to her for legal fees in her divorce action.

The court finds that, under the facts of this case, Mainiero is correct that Cruciata may not base a legal malpractice claim against her on the grounds that his actions adversely affected her rights to a trial and/or custody of her children in her divorce action. Cruciata has expressly admitted that she herself decided to settle that action and not to seek custody of her children. There is no conclusive evidence regarding the issue of equitable distribution, however. The only certain fact is that Cruciata was awarded a payment of $220,000.00 pursuant to her first divorce settlement, and a larger payment of $420,000.00 in the second settlement. The court’s function, on a motion for summary judgment, is one of issue identification, not issue determination. See e.g. Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 (1957); Grullon v City of New York, 297 AD2d 261 (1st Dept 2002). Here, the court finds that Cruciata’s and Mainiero’s competing explanations for the increase in the settlement present an unresolved issue of fact. Therefore the court is unable to award summary judgment either granting or dismissing Cruciata’s legal malpractice claim to the extent it is based upon the amount of the settlement. Accordingly, the court finds that both parties’ motions should be denied with respect to this claim.

Cruciata’s second cause of action alleges excessive legal fees. Mainiero’s original moving papers do not mention this cause of action other than to deny that the fees that he charged Cruciata were excessive. In her cross motion, Cruciata states that her "excessive legal fees" claim is presented as "an alternate theory of recovery" of the damages that she seeks pursuant to her third cause of action. Cruciata specifically argues that, because an attorney who is terminated for cause by a client has no right to collect legal fees, any fees that Mainiero charged her are, perforce excessive. In his reply/opposition papers, Mainiero argues that Cruciata has failed to present evidence of either: 1) the actual amount of legal fees that he charged; 2) that those fees were excessive; or 3) that he was discharged for cause. The court agrees. Cruciata simply presents no evidence to support her second cause of action beyond her own conclusory, self-serving statements that Mainiero’s fees were excessive, and that she discharged him for cause. It is well settled that conclusory assertions which are unsupported by evidence are insufficient to oppose a motion for summary judgment. See e.g. Mason v Dupont Direct Fin. Holdings, 302 AD2d 260 (1st Dept 2003). Accordingly, the court finds that Maniero’s motion should be granted, and Cruciata’s cross motion should be denied, with respect to Cruciata’s "excessive legal fees" claim. [*6]

Client is misdiagnosed with breast cancer.  Typically the misdiagnosis is that the doctor missed the cancer.  Here it was the opposite.  The doctor is alleged to have found a false positive diagnosis.  Ms. Kremen underwent unnecessary bilateral mastectomy.  There was no cancer.

She hired the Benedict Morelli firm to sue.  The case was eventually dismissed on the statute of limitations.  A bankruptcy intervened.  The legal complications multiplied.  A legal malpractice case against the Morelli firm was dismissed.  Then, in what was viewed by Supreme Court as just too much, the Morelli firm sued plaintiff for its disbursements.  Justice Goodman sanctioned the Morelli firm.  Now, on appeal, the sanctions have been vacated.

Kremen v Benedict P. Morelli & Assoc., P.C.  ;2011 NY Slip Op 00405 ;Decided on January 25, 2011 ;Appellate Division, First Department
 

"The parties have been to this court before. First, we dismissed as untimely a medical malpractice action in which defendant law firm represented plaintiffs (Kremen v Brower, 16 AD3d 156 [2005], lv denied 5 NY3d 705 [2005]). Then, we dismissed this action in which plaintiffs sued defendants for legal malpractice arising out of the medical malpractice action as against the Morelli Ratner defendants (54 AD3d 596 [2008]).

After we dismissed plaintiffs’ legal malpractice claim, defendant law firm moved in the motion court to restore its counterclaims for reimbursement of litigation expenses. Defendant had advanced these funds to plaintiff in the medical malpractice action. Defendant reasoned that because neither we nor the motion court had addressed these counterclaims, it was error for the motion court to mark the entire case "disposed." In an order dated February 29, 2009 and entered August 3, 2009, the motion court denied defendant’s motion because defendant had not submitted any evidence that plaintiffs had agreed to be personally liable for the expenses.

Defendant argued that the terms of the retainer agreement required plaintiffs to repay all disbursements when plaintiffs used a different law firm to appeal the dismissal of the medical malpractice action.

In an order entered October 8, 2009, the motion court denied defendant’s motion to renew and reargue. It rejected defendant’s argument that plaintiffs had replaced defendant with another firm, because, although another firm took the appeal, defendant was never replaced in the underlying medical malpractice action. Finding defendant’s argument "nonsensical and frivolous," the motion court also declared its intention to impose sanctions. The court gave defendants the opportunity to submit a memorandum in opposition, of which defendant availed itself. On January 25, 2010, the motion court found that defendant had violated Uniform Rules for Trial Courts (22NYCRR) § 130-1.1, and imposed a sanction of $6,000 payable to the Lawyers’ Fund for Client Protection of the State of New York. Defendant appealed only from the January 25, 2010 order imposing sanctions. We now reverse. "

Venue is the "where" of legal malpractice’s five W’s.  Venue is determined by who is bringing the action, what the cause of action consists of,  How is venue determined.  In NY jurisprudence the short answer for most cases is where one of the parties resides.  Some times it is where the wrong was committed.  Here in Cold Spring Harbor Laboratory v. Ropes & Gray we see US District Judge Spatt deciding where to hold the trial.  In a NYLJ article Joel Stashenko writes:

"Eastern District Judge Arthur D. Spatt said in Cold Spring Harbor Laboratory v. Ropes & Gray, 20-cv-661, that venue has generally been determined in such malpractice actions based on where an attorney’s improper conduct allegedly occurred, not where the injured parties were located at the time.

Judge Spatt noted that Mr. Vincent appears to have drafted the Hannon applications with material copied from the Fire application while working in Ropes & Gray’s Boston office; that he made assurances to Mr. Hannon and the Cold Spring lab by phone or e-mail from Boston that he was watching out for Mr. Hannon’s best interests, and that he failed repeatedly to tell the lab that he had copied the Fire material in the applications.

Mr. Vincent did meet with lab personnel on several occasions in Long Island early in the patent application process, but the judge said that discussions at those sessions did not directly relate to the alleged malpractice.

"Because the Defendants did not commit any of the alleged acts or omissions underlying the legal malpractice claim in the Eastern District of New York, and any relevant communications were tangential to the legal malpractice claim, venue is not proper in the Eastern District of New York," Judge Spatt wrote.

Ropes & Gray had sought to transfer the case to Boston, where its main offices are located."

In 2009, the firm fired Mr. Vincent after it discovered that a patent database company that billed the firm and clients for more than $730,000 was owned by Mr. Vincent.

The attorney was a specialist in patent law and intellectual property at Ropes & Gray and the Cold Spring Harbor Laboratory’s chief outside patent prosecution counsel from 2001 to 2008. According to the lab’s complaint, he was paid $1.82 million in legal fees over that period.
 

We’re proud to announce that our article "Legal Malpractice, Retaining and Charging Liens" was published in today’s New York Law Journal.  It’s about the issue most close to the hearts of attorneys, fees.  What happens at the end of the attorney-client relationship and how are fees worked out?  Read on…

Attorney being sued in legal malpractice – not a big story.  Attorney settling and paying $ 25 Million in malicious prosecution ?  Big story.  Here is the enormous settlement story from Brian Baxter of the New York Law Journal..

"Ending 13 years of litigation, Manatt, Phelps & Phillips has agreed to pay $25 million in damages to Los Angeles businessman Stewart Resnick and his wife, Lynda, in a case that began over trademark and advertising claims related to the late Diana Spencer, Princess of Wales.

The Resnicks once owned The Franklin Mint, which produced a commemorative plate, purse and porcelain doll using the princess’ likeness after she was killed in a 1997 car crash in Paris. Manatt and IP partner Mark Lee, representing Diana’s estate and a memorial fund set up in her name, sued The Franklin Mint for trademark dilution and false advertising, claiming that their client’s likeness had been used without permission to market memorabilia.

Former U.S. District Judge Florence Marie Cooper of the Central District of California dismissed the case on summary judgment in 2000, calling it "groundless" and "unreasonable," while awarding The Franklin Mint and its attorneys $2.3 million in legal fees under a provision contained in the Lanham Act. The Franklin Mint then sued Manatt, Mr. Lee and Diana’s estate and memorial fund for malicious prosecution in 2002, claiming that the litigation was an attempt to hurt the company’s Diana-related sales.

The Franklin Mint, owned by the Resnicks through their Roll Global holding company, was particularly incensed about a passage in Manatt’s complaint comparing the company to "vultures feeding on the dead." The Franklin Mint’s lawyers at Loeb & Loeb, led by partner Andrew Clare, argued that such an allegation damaged their clients’ reputation. The Franklin Mint, based in Exton, Pa., was sold in 2006 to a group led by executives from The Morgan Mint.

Diana’s estate and charity trust fund settled The Franklin Mint’s claims against them in 2004 for $25 million, all of which the Resnicks said they donated to charity.

Manatt, however, continued the fight. After a 17-day trial two years ago, a Los Angeles Municipal Court judge granted the firm’s motion for dismissal of the suit, effectively ending the case in the firm’s favor.

That decision was overturned last May when California’s Second District Court of Appeal handed down a 3-2 ruling in which it held that Manatt and Mr. Lee did not have probable cause to file the initial claims against The Franklin Mint and the Resnicks. The ruling also revived the malicious prosecution case. Akin Gump Strauss Hauer & Feld partners L. Rachel Helyar and Rex Heinke represented The Franklin Mint on appeal.

Manatt hired Kathleen Sullivan of Quinn Emanuel Urquhart & Sullivan, who filed a 41-page cert petition in June asking the Supreme Court of California to review various legal issues in the case. Ms. Sullivan focused on a dissenting opinion of one appellate court judge who objected to Manatt being targeted for damages because it was on the losing side of a case for its client."