Attorney represents X and then later represents X’s opponent in litigation.  Aside from the fact that the opponent is X’s mother, when does such representation cause a conflict and legal malpractice?  We see in Benaquista v Burke ;2010 NY Slip Op 04896 ;Decided on June 10, 2010
Appellate Division, Third Department  that there is no per se rule.
 

"Plaintiff and his mother co-owned two corporations and defendant represented the corporations in various matters. In December 2002, plaintiff was removed as an officer and director of one of the corporations. Shortly thereafter, his mother and the corporations commenced an action against him for, among other things, mismanagement and misappropriation [*2]of corporate funds. Defendant was the attorney of record for plaintiff’s mother and the corporations in that action. Plaintiff then commenced this action alleging, as pertinent here, that defendant committed legal malpractice. In the complaint, plaintiff alleged that he had previously sought legal advice from defendant concerning business issues between plaintiff and his mother and, in doing so, he had discussed confidential legal and personal matters with defendant. Plaintiff asserted that defendant then used such confidential information against him in commencing the action on behalf of his mother and the corporations, as a result of which he had suffered damages.

In order to recover for legal malpractice, plaintiff must demonstrate that defendant "’failed to exercise the reasonable skill and knowledge commonly possessed by a member of the legal profession’" (Bixby v Somerville, 62 AD3d 1137, 1139 [2009], quoting Arnav Indus., Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner, 96 NY2d 300, 301-304 [2001]) and that plaintiff was damaged as a result of such negligence (see Bixby v Somerville, 62 AD3d at 1139). Nonetheless, as the proponent of a motion for summary judgment, defendant had the initial burden of establishing his prima facie entitlement to judgment as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Defendant met this burden by proffering defendant’s sworn affidavit, alleging that his firm had represented plaintiff’s mother and the corporations prior to his representation of plaintiff — which consisted only of the incorporation of a business owned by plaintiff — and that no conflict of interest existed. In addition, defendant provided plaintiff’s bill of particulars and asserts that it fails to specifically identify any personal or confidential information used by defendant against plaintiff or any damages suffered by plaintiff [FN2]. Thus, the burden shifted to plaintiff to raise a question of fact requiring a trial (see CPLR 3212 [b]; Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067-1068 [1979]).

Plaintiff’s only opposition to defendant’s cross motion was an attorney affirmation and various documents which, as relevant to this appeal, consisted primarily of billing records. Inasmuch as plaintiff failed to proffer any sworn allegations of an individual with personal knowledge of the relevant facts and the documents submitted were not in admissible form, his opposition was insufficient to sustain his burden of raising a triable issue of fact to defeat defendant’s entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d at 327; Zuckerman v City of New York, 49 NY2d at 562; Bixby v Somerville, 62 AD3d at 1139; Polyglycoat Ctr. of Conn. v Arace’s Ford, 126 AD2d 844, 845 [1987]). Accordingly, Supreme Court properly granted defendant’s cross motion for summary judgment dismissing the complaint. "

Attorney and law firm arrange a house sale from plaintiff to defendant in which the sale price is well below market, and plaintiff retains a life estate in the house.  At closing, everything starts to go wrong.  Seller is persuaded to take a mortgage, and the attorney agrees to file the mortgage as well as the life estate.  Neither is recorded.  Buyer then goes out and gets a mortgage almost three times the size of the sale price and defaults.  More than three years passes.  Has the statute of limitations passed?

In Lytell v Lorusso ;2010 NY Slip Op 04964 ;Decided on June 8, 2010 ;Appellate Division, Second Department we see a reversal of the dismissal of the legal malpractice case.
 

"Assuming that the legal malpractice causes of action accrued more than three years before this action was commenced (see McCoy v Feinman, 99 NY2d 295, 301; Ackerman v Price Waterhouse, 84 NY2d 535, 543; Melendez v Bernstein, 29 AD3d 872, 872; Alicanti v Bianco, 2 AD3d 373, 374), nevertheless, the complaint adequately alleged that the plaintiff was "left with the reasonable impression that [Levinson] was, in fact, actively addressing [his] legal needs" after the closing date (Shumsky v Eisenstein, 96 NY2d 164, 169). Thus the "pleading is sufficient to establish that the parties mutually contemplated that [Levinson’s] work and representation for [the transaction] would continue after [the closing date] and, therefore, the continuous representation doctrine applies," and the statute of limitations was tolled (Symbol Tech., Inc. v Deloitte & Touche, LLP, 69 AD3d 191, 195; see Carnevali v Herman, 293 AD2d 698, 699; Khan v Hart, 270 AD2d 231). Levinson failed to demonstrate that the plaintiff knew or should have known that Levinson had stopped representing him in the matter more than three years before the action was commenced (cf. Santulli v Englert, Reilly & McHugh, 78 NY2d 700, 709). Accordingly, the legal malpractice claims should not have been dismissed since Levinson failed to establish that they were time-barred (see Zorn v Gilbert, 8 NY3d 933, 934; 730 J & J, LLC v Polizzotto & Polizzotto, Esqs., 69 AD3d 704; Town of Wallkill v Rosenstein, 40 AD3d 972, 974). In any event, we further note that "the plaintiff adequately pleaded facts which, if proven, would establish the existence of an equitable estoppel" in this case (Doe v North Shore Univ. Hosp., 28 AD3d 603, 604; see Simcuski v Saeli, 44 NY2d 442; General Stencils v Chiappa, 18 NY2d 125).

The Supreme Court properly denied that branch of Levinson’s motion which was to dismiss the cause of action alleging fraud insofar as asserted against them, for failure to state a cause of action (see CPLR 3211[a][7]). "[T]he allegations in the complaint describe a case where a defendant has fraudulently and positively as with personal knowledge stated that something was to be done when he knew all the time it was not to be done and that his representations were false" (Channel Master Corp. v Aluminium Ltd. Sales, 4 NY2d 403, 407-408 [internal quotation marks omitted]; see Braddock v Braddock, 60 AD3d 84, 90; Romano v Key Bank of Cent. N.Y., 90 AD2d 679, 680). Moreover, the cause of action alleged in the complaint "is premised upon one or more [*3]affirmative, intentional misrepresentations . . . which have caused additional damages, separate and distinct from those generated by the alleged malpractice" (White of Lake George v Bell, 251 AD2d 777, 778; see Simcuski v Saeli, 44 NY2d 442, 451-452; Bernstein v Oppenheim & Co., 160 AD2d 428, 430). Additionally, the assertions in the complaint permit a reasonable inference of the alleged conduct (see Pludeman v Northern Leasing Sys., Inc., 10 NY3d 486, 492), and the complaint is otherwise "sufficient to advise [Levinson] of the incidents complained of" (Union State Bank v Weiss, 65 AD3d 584, 585; see CPLR 3116[b]). Thus the complaint adequately alleged fraud. "

In an unusual procedural setting, a suspended attorney’s request for contingent legal fees in a medical malpractice action was denied by Justice Joan Carey, and then vacated by Justice Alice Schlesinger.  in Warren v Del Principio 06/02/2010 Other Courts.  Likely based upon her retiring last year, Justice Schlesinger took over her caseload, and likely took a second look at this case.

Here, the attorney was suspended for reasons other than this case,and presented evidence to show that his work led to a settlement of $ 100,000.  Is he then due a fee?  Justice Schlesinger thinks that he has at least made the first hurdle.

In his affidavit the attorney enumerated the services rendered to plaintiff before suspension from the practice of law, including the initial meeting with decedent, investigation of the merits of the case, consultation with an expert, commencement of a medical malpractice action, depositions and the discovery and securing of a $ 100,000 settlement offer, which was eventually taken. 

Details, Details!  Is this a Connecticut or a New York Case?  Is there standing or not?  Who has the right to sue the attorneys?  in JP MORGAN CHASE BANK, N.A.,  -against- LAW OFFICE OF ROBERT JAY GUMENICK, P.C., ET AL.,08 Civ. 2154 (VM);UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK;2010 U.S. Dist. LEXIS 53993;
May 26, 2010 we see the following:

"Under New York law, the relevant analytical approach to choice of law in tort actions is the "interest analysis," where "the law of the jurisdiction with the most significant interest in, or relationship to, the dispute" is applied. 3 Lazard Freres & Co. v. Protective Life ins. Co., 108 F.3d 1531, 1539 (2d Cir. 1997). And for contract claims, New York courts typically look to the "center of gravity" of the dispute or the "grouping of contacts" in the jurisdictions at issue, unless the policies underlying conflicting laws in a contract dispute are "readily identifiable and reflect strong governmental interests." Allstate, 613 N.E.2d at 940. Regardless of whether the center of gravity or interest analysis is applied, both require consideration of the facts and significant contacts underpinning the dispute. See id. ("[C]ritical to a sound [center of gravity] analysis is selecting the contacts that contain significance in the particular contract dispute."); see also Warshay v. Guinness PLC, 750 F. Supp. 628, 632 (S.D.N.Y. 1990), [*7] aff’d, 935 F.2d 1278 (2d Cir. 1991) ("[T]he facts or contacts which obtain significance in defining State interests are those which relate to the particular law in conflict.")
 

Perhaps its the economic downturn, perhaps just a coincidence, but we have heard of three "imposter" closing scenarios recently.  Here is one that stands out.  In Layton v Layton 06/04/2010 Other Courts 2010 NYSlipOp 31381(U)  wife and husband are divorcing, and the marital house is to go to the wife. A closing is scheduled, and defendant attorneys are there for the bank.  They are to earn $ 580 to be the settlement agent.  At the closing a man, with two forms of expired identification, appeared as husband.  He was not.

What remedies does husband have against the attorneys?  Here is the more interesting question.  If there is no privity between the husband and the settlement agent, does the settlement agent owe a fiduciary duty to the husband [as transferror}?  If the settlement agent owes a fiduciary duty, does presentation of a legal malpractice cause of action in addition to a breach of fiduciary duty cause of action doom the fiduciary duty cause of action?  Here is seems to have colored the picture to the detriment of plaintiff.  The general rule is that a breach of fiduciary duty which relies on the same facts as a legal malpractice cause of action is faulty.  How about a single cause of action on the one set of facts>

We do not know the answer to this question, but would a single cause of action for breach of fiduciary duty have succeeded? 

We’re proud to announce that the New York Law Journal today published an article about Judiciary Law 487.entitled  An Explosion of Developments in Judiciary Law 487

"Legal concepts change by evolution and revolution. Evolution is the most familiar process in legal scholarship. A principle or a statute is analyzed, then re-interpreted in the light of newer or novel events. The basic principles remain in effect. An example of evolutionary change is seen in the process by which intangible computer files have come to be subjected to conversion analysis. Shmueli v. NRT N.Y. Inc., 68 AD3d 479 (2009). Another example is the gradual acceptance of e-mails in contract and communications law.

Revolutionary change is different and sudden. One example is the emergence of Judiciary Law §487 from its centuries long slumber. After a recent decision by the Court of Appeals on this ancient statute, the world of legal malpractice has been stood on its head. What was formerly an ill-known extreme fringe theory of law has burst into prominence and scholarly acceptance. Although the statute is more than 700 years old, it today stands in the mainstream."

Judiciary Law 487 may well be the newest oldest thing in legal malpractice.  Coming, as it does, from medieval England just after the Magna Carta, it is the oldest statute in Anglo-American jurisprudence.   As for continuity, this seems to be the only attorney-specific statute that has survived 100 years, much less 700+

Today, with a boost from the Court of Appeals, the limits of Judiciary Law 487 law are under tremendous expansion, with its outer edges being defined daily.  We’ll comment on the expansion in coming articles.

Justice March Friedman, of Supreme Court, New York County recently decided Tanger v Ferrer  2010 NYSlipOp 31355(U) in which the third-party claim between attorneys was that DLA Piper, US LLP owed a duty to Eaton & Van Winkle LLP after plaintiff sued Ferrer and Eaton  for legal malpractice.  The malpractice is alleged to be the negligent preparation of thee tenders pursuant to CPLR 3219.  Eaton alleged, in its third-party complaint that the tenders were prepared while Eaton was employed by DLA Piper, while the last was prepared while Eaton was in his own firm.

Supreme Court dismissed the third party action,  The partnership agreement between Eaton and DLA did not provide for DLA to indemnify or provide contribution to Ferrer for the acts alleged in the complaint, and there were no facts alleged in the main action to support a claim against DLA for negligent supervision of or control of Ferrer’s work.

The third party action was dismissed.

Is legal malpractice litigation held to a higher standard? Are there more motions to dismiss the complaint granted against legal malpractice complaints than against the rest of the law-o-sphere? We have no hard figures, but anecdotal evidence suggests that legal malpractice is held to a higher standard. As an example, how could Supreme Court and the Appellate Division see things so differently?

In Minsky v Haber ;2010 NY Slip Op 04754 ;Decided on June 1, 2010 ;Appellate Division, Second Department Supreme Court dismissed the action across the board. The Appellate Division held:

"Contrary to the determination of the Supreme Court, the motion of the defendants Eugene Haber, Edward Cobert, and Amy Cobert, individually and doing business as Cobert, Haber & Haber (hereinafter collectively the Haber defendants), to dismiss the complaint insofar as asserted against them pursuant to CPLR 3211 should have been denied. Affording the complaint a liberal construction, and according its factual allegations every possible favorable inference (see Leon v Martinez, 84 NY2d 83, 87-88; Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 38), we find that the complaint sufficiently stated distinct causes of action to recover damages for legal malpractice, breach of contract, breach of fiduciary duty, and fraud. With regard to the privity requirement of the legal malpractice cause of action, the plaintiff satisfactorily alleged that she was assigned a claim of right by her father sounding in legal malpractice against the Haber defendants, that the Haber defendants also were retained to represent her personal interests in addition to her father’s interests, that she was also a third-party beneficiary of the representation of her father by the Haber defendants, and was injured by their alleged misconduct (see generally Nelson v Kalathara, 48 AD3d 528; Fredriksen v Fredriksen, 30 AD3d 370). The other causes of action are sufficiently different from the legal malpractice claim to survive that branch of the Haber defendants’ motion which was pursuant to CPLR 3211(a)(7). [*2]

Furthermore, dismissal of the complaint as time-barred pursuant to CPLR 3211(a)(5) was error, since the plaintiff alleged facts supporting the application of the continuous representation doctrine to toll the statute of limitations for legal malpractice (see CPLR 214[6]; Griffin v Brewington, 300 AD2d 283; Mancino v Levin, 268 AD2d 507; Kuritsky v Sirlin & Sirlin, 231 AD2d 607), and the remaining causes of action also were timely interposed under the circumstances.

The Haber defendants’ submission of documentary evidence did not conclusively establish a defense to the claims asserted by the plaintiff (see CPLR 3211[a][1]; see generally Held v Kaufman, 91 NY2d 425, 430-431; Leon v Martinez, 84 NY2d 83, 88; Peter F. Gaito Architecture, LLC v Simone Dev. Corp., 46 AD3d 530), but merely revealed the existence of factual questions with regard to the propriety of the Haber defendants’ conduct. "

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