The law and its rules changes as a matter of geography.  A few miles to the south, rules are completely different.  As an example, in NY a workers’ compensation carrier may recovery its payments to plaintiff after plaintiff successfullly sues a third-party.  As an aside, there are any number of legal malpractice cases in which the attorney failed to obtain the consent of the WC carrier to a 3d party settlement and cost the client dearly.  However, in NY the carrier may not recover from a Legal Malpractice recovery due to the negligent handling of a 3d party action.  The same is not true in NJ, as we see in: Cambridge Integrated Servs. Group, Inc. v Faber
2010 NY Slip Op 33286(U) ;November 22, 2010;Sup Ct, NY County;Docket Number: 104108/2009
Judge: Marcy S. Friedman. 

"The court now holds that under New Jersey Law, “a workers’ compensation lien pursuant
to N.J.S.A. 34:15-40 attaches to the proceeds of a legal malpractice action brought to recover
damages froin an attorney who failed to institute an action against a third-party tortfcasor.”
(Frazier v N,J. Mfrs. Ins. Co., 142 NJ 590, 607 IrrJ 19951,) New York law is to the contrary, and
holds that a workers’ compensation lien applies “only against recoveries from the third-party
[* 2]
4
tortfeasors who are responsible for the claimant’s injuries.” (Shutter v Phillips Displav
Components Co., 90 NY2d 703, 708 [1997].) However, under settled law, “[tlhe rights of an
employer to be reimbursed for workers’ compensation benefits paid to an employee are governed
by the law of the State in which the benefits were paid.” (Compare Carinucci v PepsicQ. Inc.,
236 AD2d 499 [2d Dept 19971. with New Jersey Mfrs. Ins. Co. v St e cke~2,6 4 AD2d 3 14 [lSt
Dept 19991 [mistaken payments]. See also Matter of O’Cnnnor’s Estate, 21 AD2d 333 [2d Dept
19641.) The court is unpersuaded that enforcement of New Jersey Law would violate public
policy under the circumstances of this case in which a New Jersey resident was paid workers’
compensation benefits in New Jersey."

Judiciary Law 487 may be the oldest statute in American (and in Anglo-American) jurisprudence.  it dates from the first Statute of Westminster, adopted in England in 1275.  Even almost 800 years later refinements continue to be made.

in Barrows v Alexander 2010 NY Slip Op 08506 ; Decided on November 19, 2010 ; Appellate Division, Fourth Department  we see plaintiff attempting to apply Judiciary Law 487 against at attorney, but not one who was working as an attorney at the time.  However, in this case they wish to sue the defendant for acts in the legal malpractice case rather than for acts which led up to the legal malpractice case. This is denied by the Court.
 

"We conclude that the court properly denied the motion inasmuch as the proposed amendment is patently lacking in merit (see generally Anderson v Nottingham Vil. Homeowner’s Assn., Inc., 37 AD3d 1195, 1198, rearg granted 41 AD3d 1324). Section 487 applies only "to an attorney acting in his or her capacity as an attorney, not to a party who is represented by counsel and who, incidentally, is an attorney" (Oakes v Muka, 56 AD3d 1057, 1058), and here defendant was not acting in his capacity as an attorney in the context of this legal malpractice action (see Gelmin v Quicke, 224 AD2d 481, 482-483). Plaintiffs’ reliance on Kurman v Schnapp (73 AD3d 435) is misplaced because the record in that case establishes that the defendant was acting in his capacity as an attorney when he engaged in the alleged [*2]deceitful conduct.

Finally, the contention of plaintiffs that the court erred in denying their motion for summary judgment is not properly before us because plaintiffs failed to take an appeal from the order denying that motion. "

We will be the first to say that we simply do not understand this Second Department decision.  Kennedy v H. Bruce Fischer, Esq., P.C. ;2010 NY Slip Op 08709 ;Decided on November 23, 2010
Appellate Division, Second Department has the following two ideas that we cannot put together and harmonize:  Plaintiff was able to obtain a $ 1.4 million inquest verdict against a personal injury defendant, but when that felll apart, could not prove that it had a meritorious cause of action and that "but for" the attorney’s mistake would have won the case.
 

" To establish causation, "a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence" (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 442; see Kuzmin v Nevsky, 74 AD3d at 898; Rosenstrauss v Jacobs & Jacobs, 56 AD3d 453; Wray v Mallilo & Grossman, 54 AD3d 328, 329; Carrasco v Pena & Kahn, 48 AD3d 395, 396).

Here, even as amplified by the plaintiff’s affidavit, and according every possible inference favorable to the plaintiff, the complaint failed to allege any facts tending to show that, but for Fischer’s alleged negligence in failing to serve process upon the personal injury defendant in the personal injury action, the plaintiff would have prevailed in that action insofar as asserted against the personal injury defendant (see Kuzmin v Nevsky, 74 AD3d at 898; Tortura v Sullivan Papain Block McGrath & Cannavo, P.C., 21 AD3d 1082, 1083; Rau v Borenkoff, 262 AD2d 388, 389; Weiner v Hershman & Leicher, 248 AD2d 193). The plaintiff’s remaining contentions regarding dismissal pursuant to CPLR 3211(a)(7) are without merit. Accordingly, the Supreme Court properly granted that branch of Fischer’s motion which was to dismiss the complaint pursuant to CPLR [*3]3211(a)(7). "

"It might seem unjust, or even perverse, for a pro se plaintiff to lose just because he happened to sue in his home state, instead of where he believes the injury occurred, and where an attorney probably would have recommended he sue. But the Court’s job is to apply applicable statutes fairly and impartially. And here, New York has chosen to favor legal "clarity" over flexible limitations rules. See Insurance Co. of North America, 91 N.Y.2d at 186. [*8] It is not the Court’s job to quibble with that policy decision."  This apt description of the borrowing statue comes fromJAGER, against-  MITSCHELE, 06-CV-1938 (JS)(WDW); UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK;2010 U.S. Dist. LEXIS 120572.
 

"This is a legal malpractice action brought by a New York resident against a New Jersey lawyer in connection with a District of New Jersey case on appeal to the Third Circuit, which sits in Pennsylvania. Mr. Jager contends that New Jersey’s limitations period controls. Mr. Ryak argues that, pursuant to New York’s "borrowing" statute, N.Y. C.P.L.R. § 202, New York’s statute of limitations governs. Alternatively, Mr. Ryak contends that Pennsylvania’s limitations period appliess.

The Court finds that New York’s limitations period controls. New York’s borrowing statute provides that:
An action based upon a cause of action accruing without the state cannot be commenced after the expiration of the time limited by the laws of either the state or the place without the state where the cause of action accrued, except that where the cause of action accrued in favor of a resident of the state the time limited by the laws of the state shall apply.

N.Y. C.P.L.R. § 202

"[T]he primary purpose of CPLR 202 is to prevent forum shopping by a nonresident seeking to take advantage of a more favorable Statute of Limitations in New York." [*6] Insurance Co. of North America v. ABB Power Generation, Inc., 91 N.Y.2d 180, 186, 690 N.E.2d 1249, 1252, 668 N.Y.S.2d 143, 146 (N.Y. 1997). But its secondary, "equally important" purpose is "to add clarity to the law and to provide the certainty of uniform application to litigants." Id. In this regard, § 202 does not just apply to non-residents, but also to residents whose cause of action "accrue[d] without the state," and applies New York’s limitations period to such claims, regardless of whether the other state’s limitations period is shorter or longer. See, e.g., Alex v. Grande, 29 A.D.2d 616, 616, 285 N.Y.S.2d 909, 911 (3d Dep’t 1967); Rossi v. Ed Peterson Cutting Equipment Corp., 131 Misc. 2d 31, 498 N.Y.S.2d 283, 285-86 (N.Y. Sup. Ct., N.Y. County 1986); 75 N.Y. Jur. 2D Limitations and Laches § 113; David D. Siegel, N.Y. Prac. § 57 (4th ed.). Federal courts sitting in diversity must apply § 202, even if it results in a New York resident being subject to a shorter limitations period. See Kilmer v. Flocar, Inc., 212 F.R.D. 66, 70 (N.D.N.Y. 2002) (New York’s three year limitations period, not Florida’s four year, governed personal injury case arising out of Florida car accident); see also Silva v. Toll Brother’s Inc., 97-CV-741, 1998 U.S. Dist. LEXIS 19894, 1998 WL 898307, at *1-2 (S.D.N.Y. 1998) [*7] ; Loral Corp. v. Goodyear Tire and Rubber Co., 93-CV-7013, 1996 U.S. Dist. LEXIS 1018, 1996 WL 38830, at *7 (S.D.N.Y. 1996). And courts must apply § 202 without conducting a typical choice-of-law analysis. See Aboushanab v. Janay, 06-CV-13472, 2007 U.S. Dist. LEXIS 71278, 2007 WL 2789511, at *3 (S.D.N.Y. 2007)."
 

Plaintiff is arrested and retains attorneys to represent him.  Plaintiff bails himself out and uses the bail receipt to pay the attorneys.  At issue here is whether he endorsed the bail receipt over to the attorneys to cover a minimum fee, and whether pleading guilty is a "’disposition" or whether pleading guilty and being sentenced is necessary.  In any event, there can be no legal malpractice case since plaintiff cannot show "actual innocence".

 So, in Shields v Carbone ; 2010 NY Slip Op 08661 ;Decided on November 24, 2010 ; Appellate Division, Third Department we see:
 

"Supreme Court erred in ordering plaintiff to release bail proceeds directly to O & A. By statute, when bail is exonerated, it "shall . . . be refunded to the person who originally deposited such money," less statutory fees (General Municipal Law § 99-m [1]; see Balter v County of Wyoming, 70 AD2d 1051 [1979]). While a person who posts bail can assign the right to receive the bail proceeds, O & A did not provide proof of a perfected transaction between Carbone and O & A through which Carbone intended to vest in O & A a present right to his bail proceeds (cf. Zeman v Falconer Elecs., Inc., 55 AD3d 1240, 1241 [2008]; Mele v Travers, 293 AD2d 950, 951 [2002]). The retainer agreement provides that Carbone "agrees to sign the cash bail over to" O & A and Carbone did give O & A the original bail receipt, but there is no written assignment and Carbone did not endorse the bail receipt over to O & A. Without proof of an assignment, the court should have directed plaintiff to release the bail proceeds to Carbone, the original depositor of those funds (compare Herman v State of New York, 126 Misc 2d 1019, 1020-1022 [1984]).

Supreme Court did not need to address Carbone’s cross motion to compel disclosure. O & A cross-moved for summary judgment only on its breach of contract cross claim against Carbone, and the disclosure at issue dealt with its quantum meruit claim. Disclosure was stayed pending a determination of the dispositive motions (see CPLR 3214 [b]), and the demanded disclosure was irrelevant to those motions. Thus, Carbone was not entitled to have its motion to [*4]compel determined prior to the court issuing the order that is on appeal (see CPLR 3212 [f]).

Supreme Court should not have granted O & A’s cross motion for summary judgment against Carbone on its breach of contract cause of action. We disagree with Carbone’s arguments that the retainer agreement is invalid or unenforceable. The agreement does not contain an illegal contingency fee or nonrefundable retainer, but instead includes a minimum fee, which is allowed by law (see Matter of Cooperman, 83 NY2d 465, 476 [1994]; Rules of Professional Conduct rule 1.5 [d] [1], [4] [22 NYCRR 1200.0]). Pursuant to the agreement, that fee is "to be paid at the time of the disposition of the case" if the firm obtained a "disposition or resolution." The agreement also contains information concerning hourly rates, which would apply if the firm was not involved in obtaining a disposition or resolution (such as if Carbone discharged O & A prior to a disposition). Here, O & A represented Carbone through the entry of a guilty plea to one count of the indictment in exchange for a negotiated sentence. Carbone discharged O & A after the plea, however, and retained new counsel prior to sentencing. The new counsel moved to withdraw the plea, then represented Carbone at sentencing. The phrase "disposition or resolution" is ambiguous, as it could refer to the guilty plea, which constitutes a conviction (see CPL 1.20 [13]), or the sentencing, which results in a judgment of conviction (see CPL 1.20 [15]). This ambiguity creates a question of fact concerning whether O & A obtained a "disposition or resolution" of Carbone’s criminal case so as to entitle it to the minimum fee, or whether Carbone discharged the firm prior to a disposition or resolution such that O & A can only recover a fee on an hourly basis. Thus, further proceedings are necessary on O & A’s breach of contract cause of action. "

Legal malpractice litigation is unique.  While the simple fact is that this branch of the law is written by attorneys, is utilized to litigate against attorneys, is judged upon by attorneys, the more complex story is that there are a number of unique rules.  One is that a criminal defendant may not sue his attorney absent "actual innocence."  There are no lawsuits for bad advice which leads to a conviction.

  Sgambelluri v Ironman ;2010 NY Slip Op 08555 ;Decided on November 16, 2010 ;Appellate Division, Second Department sums this rule up nicely: "To succeed on a "cause of action for legal malpractice arising from negligent representation in a criminal proceeding, [the] plaintiff must allege his innocence or a colorable claim of innocence of the underlying offense" (Carmel v Lunney, 70 NY2d 169, 173; see Britt v Legal Aid Socy., 95 NY2d 443, 448; Daly v Peace, 54 AD3d 801, 802). "A plea of guilty bars recovery for legal malpractice, [r]egardless of the plaintiff’s subjective reasons for pleading guilty’" (Casement v O’Neill, 28 AD3d 508, [*2]509, quoting Kaplan v Sachs, 224 AD2d 666, 667). "

The more things change, the more they stay the same, say the French.  In the Estates and Trust – legal malpractice world, this saying is illustrated by Leff v Fulbright & Jaworski, L.L.P. ;2010 NY Slip Op 08443 ;Decided on November 18, 2010 ;Appellate Division, First Department.  There has been a revolution in this world, yet the landscape for a huge portion of the malpractice questions remains unchanged.  
 

New York is a privity state, in the minority of all states, and is a strict privity state at that.  Absent an attorney-client relationship, absent reliance on opinion letters or their equivalent, and absent fraud, one may sue an attorney only when there is privity.

"In New York it is well established that absent fraud, collusion, malicious acts or similar circumstances, the draftsperson of a will or codicil is not liable to the beneficiaries or other third parties not in privity who might be harmed by his or her professional negligence (see Mali v De Forest & Duer, 160 AD2d 297 [1990], lv denied 76 NY2d 710 [1990]). Defendants demonstrated that while they represented plaintiff in her estate planning and other matters, she was not in privity with them with regard to her late husband’s estate planning. The absence of such privity remains a bar against her estate malpractice claims (Estate of Schneider v Finmann, 15 NY3d 306 [2010]). "

"Plaintiff cannot bring her claim pursuant to the "approaching privity" standard outlined in Prudential Ins. Co. of Am. v Dewey, Ballantine, Bushby, Palmer & Wood (80 NY2d 377, 383 [1992]). There is no evidence that defendants knew and intended that their advice to plaintiff’s late husband was aimed at affecting plaintiff’s conduct or was made to induce her to act. Nor is there evidence that plaintiff relied upon defendants’ advice to her detriment. Significantly, the standard is not satisfied when the third party was only "incidentally or collaterally" affected by [*2]the advice (see id.)".

The rule of privity in legal malpractice is very strong.  It exists as a "bright line" that admits of few exceptions. One recent anomaly is that of decedents, estates and standing.  In an article from today’s NYLJ. Raymond Radigan and Jennifer F. Hillman,  write the following:

"In a significant decision this summer, Schneider v. Finmann, 15 NY3d 306 (2010), the Court of Appeals loosened the privity requirements in legal malpractice actions. Specifically, in Schneider, the Court of Appeals held for the first time that a personal representative has the same ability to sue the attorney who performed estate planning services as the decedent. The Court’s rationale was that the personal representative "stands in the shoes" of the decedent and thus "has the capacity to maintain the malpractice action on the estate’s behalf." Id. at 309."

In Schnieder we see:  "Strict privity, as applied in the context of estate planning malpractice actions, is a minority rule in the United States[1]. In New York, a third party, without privity, cannot maintain a claim against an attorney in professional negligence, "absent fraud, collusion, malicious acts or other special circumstances" (Spivey v Pulley, 138 AD2d 563, 564 [2d Dept 1988]). Some Appellate Division decisions, on which the Appellate Division here relied, have applied strict privity to estate planning malpractice lawsuits commenced by the estate’s personal representative and beneficiaries alike (Deeb v Johnson, 170 AD2d 865 [3d Dept 1991]; Spivey, 138 AD2d at 564; Viscardi v Lerner, 125 AD2d 662, 663-664 [2d Dept 1986]; Rossi v Boehner, 116 AD2d 636 [2d Dept 1986]). This rule effectively protects attorneys from legal malpractice suits by indeterminate classes of plaintiffs whose interests may be at odds with the interests of the client-decedent. However, it also leaves the estate with no recourse against an attorney who planned the estate negligently."

"We now hold that privity, or a relationship sufficiently approaching privity, exists between the personal representative of an estate and the estate planning attorney. We agree with the Texas Supreme Court that the estate essentially "`stands in the shoes’ of a decedent" and, therefore, "has the capacity to maintain the malpractice claim on the estate’s behalf" (Belt v Oppenheimer, Blend, Harrison & Tate, Inc., 192 SW3d 780, 787 [Tex 2006]). The personal representative of an estate should not be prevented from raising a negligent estate planning claim against the attorney who caused harm to the estate. The attorney estate planner surely knows that minimizing the tax burden of the estate is one of the central tasks entrusted to the professional. Moreover, such a result comports with EPTL § 11-3.2(b)[2], which generally permits the personal representative of a decedent to maintain an action for "injury to person or property" after that person’s death."