The decision is somewhat short on details, but points to the most unique part of legal malpractice litigation.  When lawyers are sued for their professional acts, plaintiff must prove that "but for" the attorney’s acts there would have been a better or more favorable outcome.  In Millennium Import, LLC v Reed Smith LLP ;2010 NY Slip Op 07800 ;Decided on November 4, 2010 ;Appellate Division, First Department  we see defendant’s attempt to get the case dismissed on the basis of a perceived shortcoming which would insulate the attorneys.
 

Defendants would argue that the giving or lack of giving of a certain notice in the underlying action deprived their client of the ability to fix problems for plaintiff, or was the cause of the bad outcome.  Hence, because plaintiffs gave or failed to give notice, they cannot blame the attorneys.  The Court, without a lot of discussion determined that the notice or lack of notice did not necessarily establish that the attorneys could not have fixed the situation.

This story of a likely ponzi scheme in the investments field took place between family members.  Plaintiff gave his in-law $ 295,000 to invest.  When he became troubled by the lack of documentation, he demanded his money back.  A transfer of $ 250,000 (he took a real loss) came to him.  Trouble came with the transfer, however.

Shortly thereafter, a stranger came to him and told him that the transfer was taken out of his account, and that he wanted the money back.  Plaintiff calls in-law who says that everything will be taken care of.  6 years goes by, and suddenly stranger sues plaintiff, and wins.

Plaintiff then turns to his attorney, and asks, why didn’t you sue my in-law?  Litigation ensues and motions for summary judgment are made and decided in Lovino, Inc. v Lavallee Law Offices
2010 NY Slip Op 33046(U);Supreme Court, Nassau County;Judge: Thomas Feinman who determined that there continued to be questions of fact.  Plaintiff says that he told the attorneys to sue the in-law.  The attorneys say that plaintiff told them to hold off suing the in-law until he finally changed his mind 5 days prior to trial.
 

"Thus where the existence of an issue of fact is even arguable or debatable, summary judgment should be denied.  Stone v. Goodson, 200 NYS2d 627."

We read this story about the largest firm in Florida going through some changes.  As bad as having the First Named Partner being suspended from the practice of law, and the name of the firm changing to reflect that reality, this story from Law.Com is even worse:

"MIAMI – Adorno & Yoss, one of Florida’s largest law firms, became Yoss LLP on Monday as firm co-founder and chairman Henry “Hank” Adorno stepped down following the suspension of his law license.George Yoss remains managing partner of the Coral Gables-based firm, but Adorno’s position has not been filled and may be abolished, Yoss said. Adorno’s ownership stake was also redistributed.

Adorno was suspended indefinitely Wednesday by the Florida Supreme Court for his role in a misleading $7 million class action settlement that benefited only seven people and got the firm a $2 million payday.As the firm was in the midst of restructuring, it absorbed an unexpected shock. Its primary bank account at Wells Fargo was frozen Friday on a $500,000 writ of garnishment in a malpractice case, and paychecks couldn’t be cashed.

Prisoners are frequent consumers of legal services, yet lack many of the abilities to enforce, cajole, or otherwise make sure post-trial, post-plea or appellate work is performed, and performed on time.  Many are the complaints that attorneys were paid, and the work was not done for years, if done at all.  Compounding the problem for the prisoner-plaintiffs is the principal that a criminal defendants may not sue their criminal defense attorneys for legal malpractice.

In Reidy v Martin 2010 NY Slip Op 07734 ;Decided on October 26, 2010 ;Appellate Division, Second Department  we see one successful plaintiff who has sued his attorney for failing to do post-plea work.  Note that the defendants is pro-se.
 

"Contrary to the Supreme Court’s conclusion, the plaintiff stated a cause of action to recover damages for breach of contract against his former attorney, Richard B. Herman, and it was not duplicative of the legal malpractice cause of action, which the Supreme Court dismissed for failure to state a cause of action. The plaintiff alleged that he paid Herman the sum of $65,000 to make motions to vacate pleas he previously entered in state and federal court, and that Herman failed to do so. A cause of action to recover damages for breach of contract may be maintained against an attorney where there is a promise to perform and no subsequent performance, and such is not duplicative of a legal malpractice cause of action (see Ruffolo v Garbarini & Scher, 239 AD2d 8, 9-10; Kaplan v Sachs, 224 AD2d 666, 667; Saveca v Reilly, 111 AD2d 493, 494-495; see also Vogel v Lyman, 246 AD2d 422, 423; see generally Colucci v O’Brien, 204 AD2d 257; cf. Ferdinand v Crecca & Blair, 5 AD3d 538, 539). Accordingly, the Supreme Court should have denied that branch of Herman’s motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging breach of contract insofar as asserted against him."
 

Experience in listening to potential legal malpractice litigants tell their story reveals the darker side of many of society’s institutions: family, marriage, friendship.  This case,Benedict v Whitman Breed Abbott & Morgan ;2010 NY Slip Op 07704 ;Decided on October 26, 2010 ;Appellate Division, Second Department arises from a "family matriarch" who refused to vote shares in a family trust, thus "causing her to breach a special fiduciary duty to them in voting their shares, pursuant to a proxy, to approve certain self-dealing transactions of the advisors. Although Benedict was informed of the pendency of the action and was sent a copy of the complaint in 1999, she did not seek leave to intervene. "  As time went on, and the case progressed, various of the litigants died.

"In March 2007, the defendant Richard A. Piemonte commenced a third-party action against Benedict. Benedict served an answer asserting counterclaims and cross claims against all parties. Thereafter, the plaintiffs moved to dismiss the counterclaims asserted against them, the defendants Whitman Breed Abbott & Morgan (hereinafter WBAM), Whitman and Ransom, and various defendant individual partners of those firms, and the defendant Estate of George J. Noumair (hereinafter collectively the law firm defendants) separately moved to dismiss the counterclaims asserted against them, and the defendants Peter J. Repetti & Co., Peter J. Repetti, Jr., John R. Repetti, and Philip Tassi (hereinafter collectively the accounting firm defendants) moved to dismiss the counterclaims asserted against them, inter alia, pursuant to CPLR 3211. The Supreme Court granted the motions to dismiss, and Patrick J. Carr, as executor of Benedict’s estate (hereinafter the appellant) appeals. "

"The Supreme Court properly granted the defendants’ separate motions to dismiss the appellant’s counterclaims insofar as asserted against them. In his amended answer to the third-party complaint, the appellant asserted counterclaims against the law firm defendants sounding in breach of fiduciary duty, legal malpractice, and unjust enrichment, and a shareholders’ derivative claim. The appellant asserted counterclaims sounding in breach of fiduciary duty, accountant malpractice, and unjust enrichment against the accounting firm defendants. It is undisputed that Whitman & [*3]Ransom went into liquidation in 1993, WBAM did not represent any family interests after 1996, and George J. Noumair died in 2000. Further, the last contact the accounting firm defendants had with the appellant was in April 1995. Accordingly, the appellant’s counterclaims against those defendants were time-barred (see CPLR 213[1], [7]; 214[4], [6]; IDT Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d 132, 139; North Fork Preserve, Inc. v Kaplan, 31 AD3d 403, 405). "

Attorneys are hired and fired, and new attorneys take over.  Almost by definition, the new attorneys take on cases that have already been handled, either well or badly by predecessors.  How does this affect later communications with the client, especially in a legal malpractice setting?

in Soussis v Lazer, Aptheker, Rosella & Yedid, P.C.;2010 NY Slip Op 32991(U);October 12, 2010
Supreme Court, Nassau County;Judge: Anthony L. Parga the situation is that plaintiff had several causes of action, and at least one of them was still alive and could be pursued when attorney 2 took over.  Settlement discussions between plaintiff and attorney 2 took place, and when attorney 1 was sued, they wanted to look at the communications.
 

"Regarding privilege (t)he burden of establishing any right to protection is on the par tyasserting it; the protection claimed must be narrowly construed; and its application must be
consistent with the purose of the underlying immunty. Spectrum Systems Intern. Corp. v
Chemical Ban, 78 NY2d 371 , 377 (1991). The plaintiffs commlmications with her successor
attorney regarding the settlement of her claim undoubtedly fall within the attorney-client privilegeand are accordingly not subject to disclosure absent a waiver by the plaintiff. See CPLR 4503(a)(1); Lue v Finkelstein & Partners. LLP, 67 AD3d 1187, 1188 (2 Dept. 2009), citing Raphael v Clune White & Nelson, 146 AD2d 762, 763 (2 Dept. 1989); Jakobleffv Cerrato. Sweeney & Cohn
AD2d 834, 835 (2 Dept. 1983). Merely by commencing suit against (her) former attorneys, the
plaintiffhas not placed in issue privileged communications with (her 1 attorney who represented (her in the settlement.’ " Lue v Finkelstein & Parners. LLP. supra, at p. 1188- 1189, quoting Raphael v Clune White & Nelson supra, at p. 763. However, the privilege is waived where the "client places the subject matter of the privileged communication at issue or where invasion of the privilege is required to determine the validity of the client’s claim or defense and application of the privilege would deprive the adversary of vital information (emphasis added). Jakobleffv Cerrato. Sweeney & Cohn. supra, at p. 835 citing People v Edney, 39 NY2d 620 (1976); Cornell v Bernstein-Macaulay.Inc., 407 F.Supp. 420 (SDNY 1976); Heam v Rhay, 68 FRD 574 (ED Wash 1975); see also Deutsche Bank Trust Co. of Americas v Tri-Links Inv. Trust, 43 AD3d 56, 64 (1 sl Dept. 2007) .
(T)hat a privileged communication contains information relevant to issues the paries are litigating
does not, without more, place the contents of the privileged communication ‘ at issue ‘ in the lawsuit;
     if that were the case, a privilege would have little effect." Deutsche Bank Trust Co. of Americas v
Tri-Links Inv. Trust supra at p. 64, citing Long Is. Light. Co. v Allianz Underwiters Ins. Co. 301
AD2d 23, 33 (1 sl Dept. 2002); see also Veras Investment Parners. LLC v Akin Gump. Strauss
Hauer & Feld LLP, 52 AD3d 370, 374 (1 sl Dept. 2008). "Rather at issue ‘ waiver occurs ‘ when the
pary has asserted a claim or defense that he intends to prove by use of the privileged materials.
Deutsche Bank Trust Co. of Americas v Tri-Links Inv. Trust supra, at p. 64, citing North Riv. Ins.
Co. v Columbia Cas. Co. , 1995 WL 5792 (SDNY 1995) (citations omitted); Manufacturers &
Traders Trust Co. v Servotronics. Inc. , 132 AD2d 392, 397 (4th Dept. 1987); see also Veras
[* 4] Investment Parners. LLC v Akin. Gump. Strauss Hauer & Feld LLP supra, at p. 374. "There is no at issue ‘ waiver where the party asserting privilege ‘ does not need the privileged documents to
sustain its cause of action. ‘ "Carl v Cohen, 23 Misc3d 111 O(A) (Supreme Cour New York County
2009), quoting Manufacturers & Traders Trust Co. v Servotronics. Inc. supra, at p. 397; Deutsche
Bank Trust Co. of Americas v Tri-Links Investment Trust. supra at p. 64. "A client also waives the
attorney-client privilege by placing the subject matter of a counsel’ s advice in issue and by making
selective disclosure of such advice. IMO Industries v Anderson Kil & Olick. P. , 192 Misc2d 605
(Supreme Court New York County 2007), citing Orco Ban v Prosteinas DelPacifico, 179 AD2d 390
(1 sl Dept. 1992).

Statute of limitation issues are especial difficult in transactional legal malpractice calculations.  In litigation legal malpractice, the last date of representation is generally not too hard to agree upon.  Here, in Elizabeth Arden, Inc. v Abelman, Frayne & Schwab , 2010 NY Slip Op 51836(U) Decided on October 22, 2010; Supreme Court, New York County;  Fried, J. it is not so easy.

In short, after two cosmetic giants transferred patents between them, at least one was incorrectly allowed to expire.  This legal malpractice case hinges on when the AFS firm rendered its last work, and whether it was expected to make filings and pursue patent work for Elizabeth Arden.

"In this legal malpractice action, plaintiff Elizabeth Arden, Inc. (Arden) seeks damages against the defendant law firms, Abelman, Frayne & Schwab (Abelman), and The Firm of Karl F. Ross, P.C. (Ross), as well as two individual attorneys at each firm, Joseph J. Catanzaro (Catanzaro; Abelman includes Catanzaro unless the context otherwise requires), and the estate of Herbert Dubno (Dubno), relating to patent number 5,268,166 (the patent), which lapsed on December 7, 2001.

The patent covered a cosmetic application system, and would have expired on July 9, 2012, if all three periodic maintenance fees had been timely paid to the Patent and Trademark Office (PTO).

The patent was licensed to Mystic Tan, Inc., pursuant to a license agreement dated May 6, 1999 (the license agreement), which would have continued for the expected life of the patent. Arden had a contractual duty pursuant to the license agreement to maintain the patent. "

"Arden, in consultation with Abelman, intentionally decided not to pay the required maintenance fee, in order to reduce costs. Arden charges Abelman with malpractice for not advising it of the existence of the third-party license agreement. Arden also charges both Abelman and Ross with negligence for failing to bring a timely petition before the PTO to revive the patent on the ground of unintentional delay in paying the maintenance fee.

The regulations of the PTO allow for two distinct grounds for reinstatement of a lapsed patent, unintentional delay in payment (37 CFR 1.137 [b]), and unavoidable delay (37 CFR 1.137 [a]). The former requires merely a statement that the delay in payment was unintentional. The latter applies a more stringent standard and requires an evidentiary showing. Both require that the entire delay from the date of lapse be either unintentional or unavoidable, respectively. "

"On December 6, 2001, the last day before the end of the grace period for payment of the maintenance fee, Shore-Sirotin sent Catanzaro by fax a copy of the schedule that he had sent her with the notation "drop" next to the lapsed patent. In accordance with this apparent instruction from Shore-Sirotin, Abelman did not pay the maintenance fee on the lapsed patent prior to expiration of the grace period on December 7, 2001.

Shore-Sirotin testified at her deposition that Marina never informed her of the Mystic Tan license. The Abelman firm also did not advise Arden not to drop the patent because it was licensed to Mystic Tan.

Several months after the patent had lapsed, Shore-Sirotin learned from Honig that the patent was licensed, and immediately sent an e-mail dated March 19, 2002, referencing the patent and its United Kingdom analogue, to Pat Tormey, an Abelman legal assistant, stating, "[P]lease do NOT DROP these patents in the U.S … We have licensed these patents in the U.S. and have a duty to maintain them [capitalization in original]" (deft.’s ex 10 [A])."

"Application of the continuous representation doctrine "is limited to situations in which the attorney who allegedly was responsible for the malpractice continues to represent the client in that case. When that relationship ends, for whatever reason, the purpose for applying the continuous representation rule no longer exists" (Glamm v Allen, 57 NY2d 87, 94 [1982]).

In order for the continuous representation doctrine to apply,

there must be clear indicia of an ongoing, continuous, developing, and dependant relationship between the client and the attorney which often includes an attempt by the attorney to rectify an alleged act of malpractice. One of the predicates for the application of the doctrine is continuing trust and confidence in the relationship between the parties. However, its application is limited to instances in which the attorney’s involvement in the case after the alleged malpractice is for the performance of the same or related services and is not merely the continuity of a general professional relationship [internal citations omitted]"

(Luk Lamellen U. Kupplungbau GmbH v Lerner, 166 AD2d 505, 506-507 [2d Dept 1990]).

The rationale for the continuous representation doctrine is that a client with a pending case is not expected

to jeopardize his pending case or his relationship with the attorney handling that case during the period that the attorney continues to represent the person. Since it is impossible to envision a [*7]situation where commencing a malpractice suit would not affect the professional relationship, the rule of continuous representation tolls the running of the Statute of Limitations on the malpractice claim until the ongoing representation is completed [citation omitted]

(Shumsky v Eisenstein, 96 NY2d 164, 167 -168 [2001]).

Applying the foregoing principles, Arden has failed to raise a factual issue as to whether the statute of limitations is tolled by the continuous treatment doctrine."
 

We’ve noted in the past that legal malpractice cases sometimes have a history of legal malpractice within them.  As an example, Moray v Koven & Krause, Esqs. 2010 NY Slip Op 07573 ;Decided on October 26, 2010 ;Court of Appeals ;Read, J. serves well. it involves a legal malpractice case levied against a former attorney who was involved in a real estate transaction gone bad.  This case fared badly too, until Judge Read delivered the unanimous decision,
 

"On December 31, 2007, plaintiff Joseph Moray commenced this action for legal malpractice, breach of contract and professional negligence against defendant Koven & Krause, Esqs. by filing a summons with notice, which identified Warren Goodman, Esq. as plaintiff’s attorney. The summons with notice was apparently served on defendant on February 5, 2008.

On February 25, 2008, defendant served Goodman with a notice of appearance [*2]and a demand for a complaint. When the demand did not prompt a response, defendant on April 22, 2008 moved to dismiss the action pursuant to CPLR 3012 (b).

By letter dated May 6, 2008, attorney Preston Leschins informed defendant’s professional liability insurance carrier that his office had been "consulted" by plaintiff "in connection with" plaintiff’s claim "with a view towards substituting for" Goodman. The letter characterized Goodman as plaintiff’s "former counsel" who was "no longer practicing law." Leschins asked for "the opportunity to speak with" the carrier about "resolution [of the matter] in an amicable fashion," and at the carrier’s "earliest convenience." Plaintiff was copied on this letter.

On May 23, 2008 — the motion’s return date — defendant’s counsel had a conversation with Goodman, "who advised that he had been suspended from the practice of law months earlier"; at Goodman’s request, defendant’s counsel agreed to adjourn the motion to dismiss until June 13, 2008. Later that day, he spoke to Leschins, "who confirmed that he had consulted with plaintiff weeks earlier," but "refused to state whether he would be appearing as attorney for plaintiff" in the lawsuit.

On or near the adjourned return date, Goodman — indicating that he was mindful that his license had been "suspended on or about January 24, 2008" and was therefore "being careful not to practice law" — submitted a "factual" affidavit in opposition to the motion to dismiss. Styling himself as plaintiff’s "former attorney," Goodman stated that he had "advised [his] former client in writing of [his] situation and told him to get new counsel"; however, he did not say when he did this. Goodman further represented that he "[understood] that [plaintiff had] been diligently pursuing new counsel," but had "not yet retained a new attorney" and was "still continuing to look for a new lawyer."

"On appeal, plaintiff was represented by counsel. His new attorney invoked CPLR 321 (c), which mandates that"[i]f an attorney dies, becomes physically or mentally incapacitated, or is removed, suspended or otherwise becomes disabled at any time before judgment, no further proceeding shall be taken in the action against the party for whom he appeared, without leave of the court, until thirty days after notice to appoint another attorney has been served upon that party either personally or in such manner as the court directs."

On May 12, 2009, the Appellate Division affirmed Supreme Court’s order, concluding that the trial court "did not improvidently exercise its discretion in granting the defendant’s motion to dismiss the action" (62 AD3d 765, 765 [2d Dept 2009]). The court observed that because "plaintiff’s contention that the action was stayed pursuant to CPLR 321 (c) [was] raised for the first time on appeal," it "[was] not properly before [the Appellate Division]." We subsequently granted plaintiff permission to appeal, and now reverse.

The command of CPLR 321 (c) is straightforward: if an attorney becomes disabled, "no further proceeding shall be taken in the action against the party for whom he appeared, without leave of the court, until thirty days after notice to appoint another attorney has been served upon that party either personally or in such manner as the court directs" (emphasis added). As the Practice Commentaries explain, CPLR 321 (c) brings about "an automatic stay of the action," which "goes into effect with respect to the party for whom the [disabled] attorney appeared" (Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR [*4]C321:3, at 183)[FN2]. As a result,

"[d]uring the stay imposed by CPLR 321 (c), no proceedings against the party will have any adverse effect. It lies within the power of the other side to bring the stay to an end by serving a notice on the affected party to appoint new counsel within 30 days . . . If, at the end of the period, the party has failed to obtain new counsel (or elected to proceed pro se), the proceedings may continue against the party" (id.).

The stay is meant to "afford a litigant, who has, through no act or fault of his own, been deprived of the services of his counsel, a reasonable opportunity to obtain new counsel before further proceedings are taken against him in the action" (Hendry v Hilton, 283 App Div 168, 171 [2d Dept 1953] [discussing Civil Practice Act § 240, the predecessor statute to CPLR 321 (c)]).
This lawsuit was automatically stayed by operation of CPLR 321 (c) on January 24, 2008, the date when plaintiff’s attorney was suspended from the practice of law. Defendant never acted to lift the stay by serving a notice upon plaintiff to appoint new counsel within 30 days. Thus, Supreme Court’s order dismissing the action must be vacated (see e.g. Galletta v Siu-Mei Yip, 271 AD2d 486, 486 [2d Dept 2000] ["Since the judgment entered upon the defendants’ default in appearing at trial was obtained without the plaintiff’s compliance with CPLR 321 (c), it must be vacated"]; McGregor v McGregor, 212 AD2d 955, 956 [3d Dept 1995] ["The record reveals no compliance with the leave or notice requirements of CPLR 321 (c). The appropriate remedy for a violation of CPLR 321 (c) is vacatur of the judgment"]). "