Change in the law is sometimes revolutionary, and more often incremental.  A stunning example of incremental change is a trend in legal malpractice arising from matrimonial actions.  Often, if not universal, matrimonial actions are settled in open court stipulations, set on the record. For some historical reason, in matrimonial "allocutions" as well as in criminal plea allocutions, the Court asks the client whether client "is satisfied with the services of the attorney."  There is no apparent reasons or utility for this question.  It, however, serves to insulate the attorney from potential legal malpractice liability.

The Second Department has issued a ruling in this area, and now the First Department follows. In Weissman v Kessler , 2010 NY Slip Op 08009 ,Decided on November 9, 2010
Appellate Division, First Department the court decided that plaintiff could not successfully sue her matrimonial attorney.    "Moreover, as to all defendants, the evidence establishes that when entering into the settlement of the divorce action, plaintiff acknowledged in open court that she was satisfied with counsels’ representation, and that she entered into the settlement agreement with the knowledge that her husband’s real estate partnership investments had not yet been valued "(see Katebi v Fink, 51 AD3d 424 [2008])."
 

Matrimonial legal malpractice is typically all about the money – and the money is usually about equitable distribution. Money, or having to give it to someone else drives people insane. in this case it apparently drove the husband to solicit the murder of his wife. Luckily, the plan fizzled, and ended in divorce and equitable distribution instead. After settlement of the divorce case, husband sued his attorney. He lost in summary judgment, in an instructive decision.

In Pascarella v Goldberg, Cohn & Richter, LLP ; 2009 NY Slip Op 52193(U) ; ; Supreme Court, Kings County ; Hinds-Radix, J. we see how the court works its way through plaintiff’s claims. "On December 15, 2003, on the eve of trial on the ancillary issues in the matrimonial action, the parties entered into a stipulation of settlement (the settlement) which was placed on the record in open court before Justice Yancey. The settlement fixed Susan’s equitable distribution award at $400,000 and required that plaintiff pay it to her in lump sum by March 1, 2004.[FN15] In connection with the settlement, plaintiff testified under oath before Justice Yancey that (1) he heard and understood the terms of the settlement as it was placed on the record; (2) he discussed its terms with his lawyer (Mr. Goldberg), had enough time [*4]to speak with his lawyer about it, and required no additional time; (3) he was satisfied with the services of his lawyer; (4) he was not forced, threatened, or coerced to enter into the settlement; (5) the terms of the settlement were acceptable to him; and (6) he promised to live by its terms.
 

"Plaintiff’s first charge of malpractice is that Goldberg was negligent in failing to seek discovery from Susan concerning her non-marital property. The court notes that plaintiff and Susan were married from July 28, 1984 until September 1, 2001, when plaintiff abandoned the marital home, and thus were together for 17 years.[FN24] Yet, plaintiff has never claimed in any of his numerous affidavits filed in this action or in the matrimonial action that Susan had any non-marital property. Nor has plaintiff submitted to the court Susan’s Statement of Proposed Disposition, which was to indicate if she had any separate property. There is not one iota of evidence that suggests that Susan had any separate property. To the contrary, the gravamen of plaintiff’s legal malpractice claim is that plaintiff overpaid Susan because he used his own separate property, and not because Susan already had too much on account of her own separate property. Without some evidence of actual, ascertainable damages flowing from Goldberg’s alleged failure to conduct discovery, this branch of plaintiff’s legal malpractice claim fails (see Luniewski, 188 AD2d at 643).

"Plaintiff’s second charge that the settlement was coerced or fair has no merit. As stated, the matrimonial action was scheduled for trial on the equitable distribution issue when the parties entered into a settlement of $400,000, which was higher than plaintiff’s counter-offer of $300,000 and lower than Susan’s initial offer of $450,000. Plaintiff took the stand where he was allocuted on the settlement. He testified that he understood the settlement, wanted to accept it, and was satisfied with Goldberg’s services as his counsel. Plaintiff’s allegations in support of his claim that the settlement was a product of coercion or duress are inherently incredible and flatly contradicted by documentary evidence, including (1) the minutes of Justice Yancey’s careful and thorough allocution of plaintiff, during which he showed no sign that he was compelled to enter into the settlement, and (2) his "Affidavit of Appearance and Adoption of Oral Stipulation," in which he acknowledged that the terms of the settlement were fully explained to and understood by him, and that he consented to its terms voluntarily and with advice of counsel (see Kinberg v Kinberg, 50 AD3d 512, 513 [1st Dept 2008]).

"As a matter of policy, cases once settled should not be readily re-litigated as to their merits before another judge, where the original party has been released and the plaintiff’s original attorney has become the defendant. "Under those circumstances, the burden must be on the plaintiff seeking such a recovery to demonstrate by evidence rather than by conclusory allegations, that he indeed suffered substantial financial loss because of misdeeds by his attorneys and not by second guessing as to their judgment" (Becker v Julien, Blitz & Schlesinger, P.C., 95 Misc 2d 64, 68 [Sup Ct, New York County 1977], modified on other grounds 66 AD2d 674 [1st Dept 1978], appeal dismissed 47 NY2d 705 and 761 [1979], lv dismissed 47 NY2d 800 [1979]). "

Attorneys automatically obtain a charging lien by commencing an action.  There are several ways to lose that lien.  One is to be terminated "for cause" and another is to withdraw voluntarily.  This is different from being "consented out" or by withdrawing with mutual consent.  In Nassour v Lutheran Med. Ctr. ;2010 NY Slip Op 07906 ;Decided on November 3, 2010 ;Appellate Division, Second Department  we see the difference:
 

"Pursuant to Judiciary Law § 475, "[w]hen an action is commenced, the attorney appearing for a party obtains a lien upon his or her client’s causes of action . . . This lien attaches to any final order [*2]or settlement in the client’s favor" (Matter of Wingate, Russotti & Shapiro, LLP v Friedman, Khafif & Assoc., 41 AD3d 367, 370). "Where an attorney’s representation terminates upon mutual consent, and there has been no misconduct, no discharge for just cause, and no unjustified abandonment by the attorney, the attorney maintains his or her right to enforce the statutory lien" (Lansky v Easow, 304 AD2d 533, 534; see Klein v Eubank, 87 NY2d 459; cf. Matter of Winston, 214 AD2d 677). Where, however, an attorney withdraws without sufficient cause, his or her lien is automatically forfeited (see Hae Sook Moon v City of New York, 255 AD2d 292; Winters v Rise Steel Erection Corp., 231 AD2d 626). Here, Freedhand was not discharged by the plaintiff, but instead voluntarily withdrew. Since Freedhand failed to establish that there was just cause for his withdrawal, the Supreme Court should have vacated that portion of the judicial hearing officer’s determination that Freedhand was entitled to a fee (cf. Robinson v Friedman Mgt. Corp., 49 AD3d 436; Winters v Rise Steel Erection Corp., 231 AD2d 626). "

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). "