We report mostly on New York cases, but on ocassion, our net is more widespread.  Today, a story from Massachussets.  Its a big number legal malpractice case in which no appeal was filed.  From Law.Com and Sheri Qualters at The National Law

"Massachusetts’ high court has ruled that Jackson Lewis and Winokur Serkey & Rosenberg of Plymouth, Mass. are liable for a $1 million-plus verdict against a telecommunications company in an employment discrimination case.

On Aug. 9 in Global NAPS Inc. v. Awiszus, the Massachusetts Supreme Judicial Court ruled that Global NAPS could recover damages from its former attorneys and their firms for missing the deadline for appealing a jury verdict in an the case. Martha Awiszus of Winokur Serkey and David Kerman of Jackson Lewis’ Boston office were Global NAPS’ lawyers on the case.

Global sued the lawyers and firms for negligence, breach of contract and loss of chance.

Sandy Stephens, a former housekeeper for Global NAPS, originally sued the company alleging a violation of the Massachusetts Maternity Leave Act because the company fired her while she was on maternity leave.

State law requires eight weeks for maternity leave, but Stephens alleged that a company supervisor told her she would receive two additional weeks if she gave birth by Caesarean section.

Guidelines issued in April 2000 by the Massachusetts Commission Against Discrimination on the state’s maternity leave law called for employers to notify workers in writing if the company does not intend to offer full maternity leave rights for more than eight weeks.

The jury’s July 2004 verdict against Global totaled more than $2.5 million, including punitive damages. "
 

It’s rare, but here is a case in which plaintiff was granted summary judgment against the target attorney in a legal malpractice case.  in Anne Koplick Designs, Inc. v Lite ; 010 NY Slip Op 06356
Decided on August 10, 2010 ; Appellate Division, Second Department .  In its short, but stark decision the Second Department writes:

"Here, the plaintiffs made a prima facie showing of their entitlement to judgment as a matter of law on the issue of liability (see CPLR 3212[b]; Yiouti Rest. v Sotiriou, 151 AD2d 744, 745). In support of their motion, the plaintiffs submitted an expert affirmation of an attorney establishing that the defendant Justin N. Lite failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession by, among other things, advising the plaintiffs to default in a lawsuit commenced against them in California and advising them that a default judgment obtained in California would not be enforceable in New York, a clearly incorrect statement of the law (see Logalbo v Plishkin, Rubano & Baum, 163 AD2d 511; Yiouti Rest. v Sotiriou, 151 AD2d at 745). The plaintiffs’ submissions also established that, but for the defendants’ malpractice, they would have succeeded in defending the underlying claim. In opposition, the defendants failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324)."
 

It may be too late to sue, which implicates the statute of limitations.  Then again, it may be too early to sue,  Why would one bring an action too soon?  The answer is that sometimes time could run out before events can support a legal malpractice case which will mature later.  Here is an example from Law.Com and Gina Passarella atT he Legal Intelligencer
August 02, 2010

"Wolf Block and a number of former partners are seeking a stay of a legal malpractice lawsuit brought against them by car dealership owner Alan Potamkin over the firm’s drafting of a prenuptial agreement.

Potamkin is in the midst of a divorce action in Florida in which the validity of the prenuptial agreement has been brought into question. He entered a tolling agreement with Wolf Block to toll the statute of limitations while his attorneys as well as lawyers for Wolf Block attempted to enforce the prenuptial agreement in the divorce action. When the Florida judge denied summary judgment on the issue and ruled discovery of assets should continue, Potamkin filed the complaint in the malpractice case in Philadelphia Common Pleas Court.

Wolf Block, through its attorney, Nicholas M. Centrella of Conrad O’Brien, requested the Philadelphia court issue a stay in the malpractice action until the divorce is finalized.

In denying summary judgment, the Florida court ruled the prenuptial agreement does not conclusively establish that either party waived equitable distribution of the assets. Wolf Block now counters that the Florida ruling was "simply an interlocutory ruling" that denied summary judgment and did not determine the legal effect of the prenuptial agreement.

"At the present time, therefore, plaintiff cannot establish the essential elements of his claims beyond piecemeal allegations of purported damages based on what has transpired thus far in the divorce action," Wolf Block said in its motion. "Until the Florida court enters judgment assessing damages, if any, against plaintiff in the divorce action on the basis of its interpretation of the prenuptial agreement and post-trial remedies are pursued to completion, the scope of plaintiff’s claims and the alleged damages he purportedly suffered will not be known."

Wolf Block said in its motion to stay and supporting brief that it understood Potamkin had to file the suit before the completion of the divorce action because of statute of limitations concerns. But it said the state Supreme Court’s 1993 opinion in Bailey v. Tucker allows for the defense to file preliminary objections and seek a stay, at which point "the trial court shall then reserve its ruling" until resolution of the underlying action"
 

This case Tavarez v Hill ;2009 NY Slip Op 29002 ;Decided on January 5, 2009 ;Supreme Court, Bronx County ;Victor, J. recently partially decided covers two areas. The first area is disqualification of counsel because of multiple representation of four car accident victims, all in one car. "Should the court, sua sponte, stay the motion made for summary judgment until there is a final resolution of a potential "conflict of interest" issue arising from plaintiffs’ counsel’s representation of multiple parties in the same action? "

"The court’s records reflect that no additional motion on the issue of liability has been made; and thus, there is a meaningful risk that counsel for plaintiffs may be burdened with a conflict of interest, since the issue of liability of each driver is yet to be determined, and, in this proceeding, the passenger plaintiffs may have interests adverse to those of their driver."

"An attorney who chooses to represent multiple parties in the same action will risk being held to have violated the Code of Professional Responsibility (and its applicable Disciplinary Rules); as well as sanctioned for having engaged in a conflict of interest; and in addition thereto, suffer the indignity and cost of becoming a defendant in a malpractice action. "

The second area is shortcomings in opposition to a motion for summary judgment. "In support of the motion, the defendants have submitted, among other things, numerous affirmations from physicians in various specialties. In opposition, counsel for the plaintiffs has submitted only unaffirmed medical reports and test results; and in adddition, failed to address arguments made by the defendants as to "gaps in treatment" and the failure to provide evidence of "recent" examinations supporting the serious injury claims made by each said plaintiff. "

Guardians, Referees and other court appointees have a qualified immunity to suit.  At a bare minimum, permission from the court is required before bringing suit.  Here in Cangro v. Solomon Justice Edmead of Supreme Court, New York County sets forth the rules in three areas:  suing guardians, privity and an eventual requirement that permission be sought before suing either of these attorneys again.

Phyllis C. Solomon, Esq. was retained as attorney for  guardian to plaintiff in a 2001 matrimonial action.  She was tasked with the question of whether the proposed Stipulation of Settlement between plaintiff and her husband appeared to be fair to plaintiff.  Her answer was yes.

Plaintiff then sued Solomon on a number of theories, all in the nature of fraud and misrepresentation.  That law suit was dismissed, on the basis that no permission to sue was obtained before commencing an action against the guardian and its appointees,  and on appeal, plaintiff’s appendix was struck.

Plaintiff then sued Solomon and her attorney in that proceeding.  The attorney, Ms. Shepps, was sued in her individual capacity, and the law firm was not named.

Justice Edmead determined that there was no privity between Solomon and Plaintiff, that the action was time barred, and that litigation against plaintiff’s guardian or the guardian’s agents cannot proceed without court permission. pursuant to section 1(H) of Part 36 of the Rules of the Chief Judge.

All of this ended with an order that plaintiff may not file any future actions against defendants or the respective law firms without prior permission of the administrative judge

One may lose the right to bring a legal malpractice case based on earlier attorney fee dispute resolution. In this case , Margrabe v. Sexter & Warmflash, PC, 07-CV-2798, District Judge Kenneth M. Karas, SDNY, we see just how the process operates. Plaintiff retains attorneys to represent her in a shareholder derivative matter. Attorneys were successful in obtaining a significant amount of money for her, but from then on things went badly. Attorneys were terminated, fees were disputed, escrow accounts started, and a defamation action commenced over the termination letter. Eventually the attorneys smartly started an attorney fee dispute action under Judiciary Law 475, and were awarded fees. This was the end of the issue, although plaintiff did not yet know it.

From the Court: "Plaintiff claims that Defendants failed to exercise the degree of skill and knowledge commonly possessed by members of the legal profession in their representation of her in the Rusciano Lawsuit. (Compl. ¶27.)

In the R&R, Magistrate Judge Yanthis recommended that the Court grant Defendants’ Motion to Dismiss Plaintiff’s legal malpractice claim on res judicata and collateral estoppel grounds. (R&R 4-5.)

Although Plaintiff initially objected to Magistrate Judge Yanthis’s recommendation (Pl.’s Objections to R&R ("Pl.’s Obj.") 4), Plaintiff has since acknowledged to the Court that, based on the Court of Appeals’ denial of Plaintiff’s appeal, her legal malpractice claim "is barred under New York State law by the doctrine of res judicata." (Letter from William Greenberg, Esq. to the Court (Jan. 30, 2009).)

The Court agrees that, in New York, a judgment "fixing the value of a professional’s service necessarily decides that there was no malpractice." Lipani v. Collins, Collins & Dinardo, P.C., No. 90-CV-5278, 1992 WL 168267, at *3 (S.D.N.Y. June 25, 1992) (quoting Nat Kagan Meat & Poultry, Inc. v. Kolter, 416 N.Y.S.2d 646, 647 (App. Div. 1979)); accord Best v. Law Firm of Queller & Fischer, 718 N.Y.S.2d 397, 397 (App. Div. 2000) (holding that plaintiffs were "precluded from asserting a cause of action alleging malpractice" against the defendant law firm inasmuch as the New York Supreme Court had found that law firm was entitled to its agreed-upon legal fee).5 Here, it is undisputed that the Plaintiff’s legal malpractice claim is precluded by the state supreme court decision that Sexter & Warmflash was entitled to its reasonable legal fees. Accordingly, Plaintiff’s malpractice claim is dismissed as barred by the doctrines of res judicata and collateral estoppel."
 

As yet another example of why legal malpractice is a difficult discipline, here is a case in which there was a failure to file a counterclaim, The legal malpractice case ends in dismissal, because the Appellate Division determines that the counterclaim, even if made would have failed. Ginther v Rosenhoch ;2008 NY Slip Op 10292 ;;Appellate Division, Fourth Department
 

"One necessary element of such a cause of action is that, " but for the [defendants’] negligence, the plaintiff[] would have been successful in the underlying action’ " (Oot v Arno, 275 AD2d 1023, 1023). Here, plaintiff alleges that defendants committed legal malpractice by, among other things, failing to assert a counterclaim in the underlying action, for recovery of premiums paid by plaintiff under a disability insurance policy. We note, however, that the Second Circuit affirmed the judgment of the District Court in favor of the plaintiff insurer in the underlying action on the sole ground that the claim for benefits made by defendant, the plaintiff herein, was untimely under the policy (Provident Life & Cas. Ins. Co. v Ginther, 51 Fed Appx 72). Thus, it cannot be said that, but for defendants’ negligence, plaintiff would have been successful on a counterclaim for recovery of premiums in the underlying action (see Oot, 275 AD2d 1023).

Gina Passarella of the Legal Intelligenser reports on a case from Philadelphia that illustrates the difference between Breach of Fiduciary Duty and Legal Malpractice involving  Cravath, Swaine & Moore.  and Airgas, inc.

From the article:  ‘U.S. District Court Judge Eduardo C. Robreno ruled that under Pennsylvania law, Airgas sufficiently showed that Cravath had a fiduciary duty to Airgas and sufficiently supported its four damages claims for attorney fees, cost of obtaining new financing counsel, inability to obtain new financing and disgorgement of fees paid to Cravath. Robreno also upheld, at this juncture, Airgas’ claims for punitive damages.

Airgas sued Cravath after the firm decided to represent other longtime client Air Products & Chemicals in Air Products’ takeover bid for Airgas. Robreno had said the Delaware Chancery Court, which was overseeing litigation between the two companies regarding the takeover bid, should be the one to decide whether Cravath can represent Air Products or if it is barred by a conflict of interest.

The Delaware court in March ruled Cravath could continue in its representation, finding Airgas didn’t show how it would be harmed by Cravath’s involvement. But Airgas’ claims for damages based on an alleged breach of fiduciary duty have continued in the Eastern District of Pennsylvania before Robreno.

In his opinion Tuesday denying Cravath’s motion for judgment on the pleadings, Robreno said the parties "hotly dispute" the nature and scope of Cravath’s representation of Airgas and Air Products, when Cravath officially stopped representing Airgas and what Cravath learned while representing the company. He said he would treat the motion for judgment on the pleadings as a motion to dismiss.

"Airgas has pleaded its claim in detail and alleged facts that Cravath disregarded its duty of undivided loyalty to its client Airgas by accepting, without a prior disclosure, a representation of Air Products designed explicitly to help Air Products take over Airgas," Robreno wrote in a 23-page opinion in Airgas Inc. v. Cravath Swaine & Moore. "Airgas alleges that at the same time (August-October 2009) that Airgas had engaged Cravath and assumed its undivided loyalty, Cravath was covertly advising Air Products on how to end Airgas’s independent corporate existence. This pleading sufficiently sets forth a claim for breach of fiduciary duty."