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."

 

 

Bumpus v New York City Tr. Auth. ;2009 NY Slip Op 05737 [66 AD3d 26] ;July 7, 2009 ;Dillon, J., J. discusses what to do when the defendant can’t be identified, or served within a 120 day period.  On Wednesday we discussed the first two options: making a motion after the 120 days have expired pursuant to CPLR 306-b.  Here are other alternatives set forth in Bumpus.

"The practicing bar need not rely exclusively on the ameliorative provisions of CPLR 306-b for coping with the difficulties posed by pursuing actions against unknown parties. There are, in fact, at least four procedural mechanisms that may be utilized which, if applicable and successful, would render unnecessary a party’s reliance upon "good cause" or the "interest of justice"{**66 AD3d at 33} for additional time to serve process upon "Jane Doe" defendants who cannot be readily identified.

One such method is pre-action disclosure as permitted by CPLR 3102 (c). The statute permits a prospective plaintiff to seek, by court order, disclosure that will aid in bringing the action (see CPLR 3102 [c]). It has been recommended that a request for pre-action disclosure be sought by means of a special proceeding pursuant to CPLR article 4 (see Connors, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3102:6, citing Robinson v Government of Malaysia, 174 Misc 2d 560 [1997]). While pre-action disclosure is often thought of as a device to enable the plaintiff to frame a complaint (see generally Matter of Wien & Malkin v Wichman, 255 AD2d 244 [1998]; Matter of Perez v New York City Health & Hosps. Corp., 84 AD2d 789 [1981]; Matter of Rosenberg v Brooklyn Union Gas Co., 80 AD2d 834 [1981]; Matter of Urban v Hooker Chems. & Plastics Corp., 75 AD2d 720 [1980]; Matter of Roland [Deak], 10 AD2d 263, 265 [1960]) or to preserve evidence for a forthcoming lawsuit (see generally Matter of Thomas v New York City Tr. Police Dept., 91 AD2d 898 [1983]; Gearing v Kelly, 15 AD2d 477 [1961]; Matter of O’Grady v City of New York, 164 Misc 2d 171, 173 [1995]; Matter of Spraggins v Current Cab Corp., 127 Misc 2d 774, 775 [1985]), it has also been recognized as an appropriate device for ascertaining the identities of prospective defendants (see Matter of Alexander v Spanierman Gallery, LLC, 33 AD3d 411 [2006];"
 

"A second mechanism, available when a governmental entity may know the identity of the unknown party, is the Freedom of Information Law (Public Officers Law art 8 [hereinafter FOIL]). In a case such as this involving a public employee, Public Officers Law § 89 would require the disclosure of the employee’s name (see Matter of Faulkner v Del Giacco, 139 Misc 2d 790,{**66 AD3d at 34} 794 [1988]" 

"Third, if pre-action discovery or FOIL requests are not viable options, plaintiffs intending to pursue a "Jane Doe" defendant may commence their actions against any known codefendants, who may possess information identifying the unknown party, well in advance of the statute of limitations (accord Misa v Hossain, 42 AD3d 484, 486 [2007]). Doing so affords two distinct procedural options. If the discovery process would not lead to an identification of the unknown target in sufficient time for service of process upon that party under the limited 120-day deadline of CPLR 306-b, the subsequent disclosure of identifying information will still permit, within the wider statute of limitations, either an amended complaint by stipulation or by leave of court naming the [*4]additional party (see CPLR 3025 [b]), or alternatively, the commencement of a timely separate action against the additional party with a view to its later consolidation with the original action"

"Fourth, when an originally-named defendant and an unknown "Jane Doe" party are united in interest, i.e. employer and employee, the later-identified party may, in some instances, be added to the suit after the statute of limitations has expired{**66 AD3d at 35} pursuant to the "relation-back" doctrine of CPLR 203 (f), based upon postlimitations disclosure of the unknown party’s identity (see Reznick v MTA/Long Is. Bus, 7 AD3d 773, 774 [2004]; Gottlieb v County of Nassau, 92 AD2d 858 [1983]). "

One frequently sees an argument made in motions to dismiss pursuant to CPLR 3211 (multiple sub-divisions) in which evidentiary material is submitted by defendant, and it is argued that damages cannot be ascertained or proven.

In Simpson v Alter ;2010 NY Slip Op 08089 ;Decided on November 9, 2010 ;Appellate Division, Second Department  the Court answers this question:
 

"The Supreme Court also properly denied that branch of the appellants’ motion which was to dismiss the complaint insofar as asserted against them pursuant to CPLR 3211(a)(7). On a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must accept the facts alleged in the pleading as true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; Leon v Martinez, 84 NY2d 83, 87; Sokol v Leader, 74 AD3d 1180). "Where evidentiary material is submitted on a CPLR 3211(a)(7) motion, it may be considered by the court, but unless the defendant demonstrates, without significant dispute, that a material fact alleged by the complaint is not a fact at all, the motion will not be granted" (Quesada v Global Land, Inc., 35 AD3d 575, 576; see Caravousanos v Kings County Hosp., 74 AD3d 716). Contrary to the appellants’ contention, the documentary evidence which indicated that certain information about the plaintiff’s residency status may have been publicly available does not completely disprove her factual allegation that Alter divulged personal information which she had imparted to him when he represented her in 2003. Furthermore, the complaint sufficiently pleads allegations from which damages attributable to the appellants’ alleged legal malpractice might be reasonably inferred (see Kempf v Magida, 37 AD3d 763, 764; see also Rock City Sound, Inc. v Bashian & Farber, LLP, 74 AD3d 1168)."
 

Over the years, the rules of service of process have changed.  Once, long ago, a case was commenced when defendants were served with a summons and complaint and an index number was purchased only when necessary.  Later, in 1992 a commencement by index number rule started, and questions of service then arose.  Under CPLR 306-b a requirement that process be served within a 120 day period was enacted.  Ever since, problems of service and dismissals have abounded.

Bumpus v New York City Tr. Auth. ;2009 NY Slip Op 05737 [66 AD3d 26] ;July 7, 2009 ;Dillon, J., J. is a well written encyclopedia of how to serve a summons when defendant is not easy to find, or, in this case, easy to identify,  Counsel has four choices to identify a "Jane Doe" and serve that party within the statutory period. "The 120-day service provision of CPLR 306-b can be extended by a court, upon motion, "upon good cause shown or in the interest of justice" (CPLR 306-b). "Good cause" and "interest of justice" are two separate and independent statutory standards (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 104). To establish good cause, a plaintiff must demonstrate reasonable diligence in attempting service (see Leader v Maroney,{**66 AD3d at 32} Ponzini & Spencer, 97 NY2d at 105-106)" 
 

"If good cause for an extension is not established, courts must consider the "interest of justice" standard of CPLR 306-b (see e.g. Busler v Corbett, 259 AD2d at 17). The interest of justice standard does not require reasonably diligent efforts at service, but courts, in making their [*3]determinations, may consider the presence or absence of diligence, along with other factors (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105). The interest of justice standard is broader than the good cause standard (see Mead v Singleman, 24 AD3d 1142, 1144 [2005]), "

 

What happens when Judges hire attorneys to litigate election law matters?  The same thing that happens when ordinary people litigate.  Some litigations end in legal malpractice cases.  That is true of Simpson v Alter ; 2010 NY Slip Op 08089 ; Decided on November 9, 2010 ;Appellate Division, Second Department.   

In this follow up to the election battle between the Hon. ShawnDya L. Simpson and the Hon. Diana Johnson Judge Simpson sues her election law attorney Bernard Simpson after he had represented Simpson and the Johnson.  Did he impart confidential client information from one to the other?

More in this case will follow, ad the Court affirmed the lower court’s denial of a dismissal motion based upon collateral estoppel.

"The Supreme Court properly denied that branch of the appellants’ motion which was to dismiss the complaint insofar as asserted against them pursuant to CPLR 3211(a)(5) based upon the doctrine of collateral estoppel. The doctrine of collateral estoppel bars relitigation of an issue which has necessarily been decided in a prior action and is determinative of the issues raised in the present action, provided that there was a full and fair opportunity to contest the decision now alleged to be controlling (see Tydings v Greenfield, Stein & Senior, LLP, 11 NY3d 195, 199; Buechel v Bain, 97 NY2d 295, 303-304, cert denied sub nom. Buechel v Bain, 535 US 1096; Mahler v Campagna, 60 AD3d 1009, 1011). Preclusive effect may only be given to issues that were "actually litigated, squarely addressed and specifically decided" (Ross v Medical Liab. Mut. Ins. Co., 75 NY2d 825; see Motors Ins. Corp. v Mautone, 41 AD3d 800, 801). Here, the appellants failed to establish that the issue of whether the appellant Bernard M. Alter (hereinafter Alter) breached his duty to the plaintiff by divulging confidential information which she allegedly imparted to him when he was her attorney in 2003 was actually litigated, squarely addressed, and specifically decided in a prior 2007 proceeding pursuant to Election Law article 16, in which Alter represented candidate Diana Johnson in her challenge to the plaintiff’s residency. "

This case cuts to the center of a legal malpractice case, nicely illustrating the difference between legal malpractice and all other disciplines.  Greene v Sager ; 2010 NY Slip Op 08068 ; Decided on November 9, 2010 ;Appellate Division, Second Department  is a twin story.  First the mistake by the attorney:  "The defendants were retained by the plaintiff to represent her and to recover damages for injuries she allegedly sustained when she stepped off a sidewalk and fell into a depressed area in a street in Queens, where the plaintiff alleges that she observed Consolidated Edison employees working on the day of her accident. The defendants failed to commence an action within the statute of limitations period, and the plaintiff commenced this action against them, alleging legal malpractice. "

Next, the additional step in proving legal malpractice and the aggressive defense offered by a competent legal malpractice firm.  Defense firms made motions for summary judgment on the slightest whim, and are often awarded for their audacity.  Here they were not.

"To succeed on their motion for summary judgment, the defendants were required to demonstrate that the plaintiff is unable to prove at least one of the essential elements of a legal malpractice cause of action (see Conklin v Owen, 72 AD3d 1006, 1007; Shopsin v Siben & Siben, 268 AD2d 578). The defendants, as movants, failed to meet this burden (see Eisenberger v Septimus, 44 AD3d 994, 995; Shopsin v Siben & Siben, 268 AD2d at 578). The plaintiff similarly failed to meet her burden of establishing entitlement to judgment as a matter of law as to the defendants’ liability for malpractice since there were triable issues of fact whether she would have prevailed in the underlying action to recover damages for her injuries (see Theresa Striano Revocable Trust v Blancato, 71 AD3d at 1123; Eisenberger v Septimus, 44 AD3d at 995; Avery v Sirlin, 26 AD3d 451, 452). Accordingly, the Supreme Court properly denied the defendants’ motion and the plaintiff’s cross motion for summary judgment. "
 

 

Attorneys care about their clients.  Attorneys work hard and have reasons to perform good work.  Attorneys make mistakes, and have high case loads.  Attorneys have their own interests at heart. 

These are contradictory thoughts that cannot be reconciled.  Here, in the story of Richard F. Gluszak we see some of the contradictory story-lines.  "The Grievance Committee received a complaint from the Honorable Ira Warshawsky of the Supreme Court, Nassau County involving a default judgment taken against the respondent based upon his failure to answer a summons and complaint in the matter entitled Quarta v Gluszak, commenced in the Supreme Court, Nassau County, under Index No. 4427/08. The action alleged that the respondent diverted money from a client via a business credit link and that he failed to produce certain documents as mandated by a order of the Supreme Court, Nassau County, dated June 11, 2008. The complaint was based on a order of the Supreme Court, Nassau County, dated April 9, 2009, which found that the plaintiffs were entitled to judgment on their causes of action for professional malpractice and diversion of funds."

"The Grievance Committee received a complaint from Richard Ferris, dated May 27, 2009, alleging that the respondent claimed to be unable to return proceeds from a house sale he had deposited into his IOLA account. By letter dated June 19, 2009, sent to the address the respondent had listed with OCA, the Grievance Committee requested a copy of the respondent’s answer within 10 days and advised that an unexcused failure to reply constituted professional misconduct independent of the merits."

"The Grievance Committee received a complaint from Patricia Hodelin, dated December 18, 2009, alleging that the respondent misappropriated funds held in escrow for her and her late husband, and that he misappropriated funds entrusted to him by the Estate of Vernon Hodelin. "

"Although personally served with both the petition and the order to show cause on July 29, 2010, the respondent has failed to interpose any reply."