Here is a short decision with deep reaching consequences.  In Kurman v Schnapp ;2010 NY Slip Op 03786 ;Decided on May 4, 2010 ;Appellate Division, First Department we see the deceitful act of an attorney, and the Appellate Division substituting its finding for that of Supreme Court.  We have commented on the natural inclination of attorneys, applying rules of attorney behavior to other attorneys, to minimize and overlook.  How, one asks, could Supreme Court have come to such a different conclusion from the Appellate Division?
 

"Plaintiff stated a cause of action under Judiciary Law § 487 by alleging that defendant deceived or attempted to deceive the court with a fictitious letter addressed to him from the former licensing director of the City’s Taxi and Limousine Commission (TLC) that stated, inter alia, that plaintiff was under a lifetime ban on owning any licenses with the TLC (see Amalfitano v Rosenberg, 12 NY3d 8, 14 [2009]). Plaintiff further sufficiently alleged specific damages that could not have occurred in the absence of defendant’s conduct (see id. at 15). The 2008 affidavit by the TLC’s former licensing director offered by defendant in support of his motion fails to demonstrate conclusively that plaintiff has no cause of action (see Lawrence v Graubard Miller, 11 NY3d 588, 595 [2008]).

Plaintiff’s breach of fiduciary duty cause of action is not duplicative of his legal malpractice cause of action, since it is premised on separate facts that support a different theory (see Ulico Cas. Co. v Wilson, Elser, Moskowitz, Edelman & Dicker, 58 AD3d 1, 9-10 [2008]; Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc., 10 AD3d 267, 271 [2004]. As alleged, plaintiff’s breach of fiduciary duty claim arose in December 2006, when defendant commenced his litigation activities against plaintiff in the Westchester County Supreme Court action, and continued through defendant’s 2007 disqualification from representing the Queens Medallion Leasing Inc. defendants, and thereafter. In contrast, plaintiff’s legal malpractice claim is based upon defendant’s alleged 2005 and 2006 "communications with the TLC that may have left the impression that [defendant] was still representing [plaintiff] at that time."

Lamont Dozier, author of "Baby I need your Loving" [the Four Tops], "Baby Love", "Back in my Arms Again", "Come See about Me" [The Supremes] and many many others, got snagged in the Pullman financing scheme. the Pullman Bonds.  Before him, David Bowie was the recipient of the financing arrangement.

In LAMONT DOZIER, Plaintiff, – against – WILLKIE FARR & GALLAGHER LLP, DEUTSCHE BANK TRUST COMPANY AMERICAS ;  09 Civ. 9865 (LMM); UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK;2010 U.S. Dist. LEXIS 42321; April 26, 2010, Decided  we see a simple discussion of amendment of pleadings.

The motion for leave to amend is denied, first, because it contravenes the November 9, 2009 stipulation and, second, because amendment as to Willkie (against whom, alone, the new claim is asserted) would be futile as time-barred.

The proposed second amended complaint identifies and describes the transaction which is (as alleged in the new fourth claim against Willkie. (Proposed Second Am. Compl. P 37) "the subject matter of this litigation," as follows:
In or about June 2, 1998, Defendant Willkie represented Dozier in a securitized transaction (the "Transaction") entered into by Dozier with entities and individuals identified as David Pullman (hereinafter "Pullman") and Fahnestock & Company (hereinafter "Fahnestock") wherein the Transaction was to provide revenue to Dozier through the securitization of his future stream of music, entertainment and intellectual property royalties.
(Id. P 8.)

"An action to recover damages arising from an attorney’s malpractice must be commenced within three years from accrual." McCoy v. Feinman, 99 N.Y.2d 295, 301, 785 N.E.2d 714, 755 N.Y.S.2d 693 (2002) (citing N.Y.C.P.L.R. § 214(6) ) . "An action [*4] to recover damages for legal malpractice accrues when the malpractice is committed." Shumsky v. Eisenstein, 96 N.Y.2d 164, 166, 750 N.E.2d 67, 726 N.Y.S.2d 365 (2001) (citation omitted). More than three years has, plainly, passed since the 1998 malpractice alleged by plaintiff.
 

In Macdonald v Guttman ;2010 NY Slip Op 03519 ;Decided on April 29, 2010 ;Appellate Division, Third Department  one gets a whif of some questionable behavior.  Plaintiff is the wife in a divorce action.  A footnote to the dcision tells us of the Husbands situation: "  Footnote 1:According to the complaint, Lucenti suffered from mental illness that occasionally required hospitalization, and he was alleged to have been institutionalized at a mental health facility at the time that plaintiff commenced the divorce action. Seven months later, Lucenti executed the stipulation pro se. "
 

The divorce was completed and each side agreed that their securities were to be jointly held, and all dividents reinvested.  Soon after, it became apparent that the wife was not re-investing dividends, and the case devolved into a referee’s search for assets.  It turns out that the wife eventually got "$89,323 in dividends from the jointly held securities and plaintiff received $5,176. "
 

So, "When plaintiff and Lucenti could not reach an agreement regarding the distribution of the securities, and after hearing arguments of counsel, Supreme Court (Relihan Jr., J.), in a November 2003 order, determined that all the securities listed in the referee’s report were marital property, and redistributed them almost evenly between plaintiff and Lucenti based on their value at the time of the 1996 stipulation. A notice of appeal was filed by plaintiff, but defendant failed to timely perfect the appeal. In December 2005, this Court denied defendant’s motion seeking an [*3]extension of time to perfect the appeal. Plaintiff then commenced this legal malpractice action against defendant and his law firm, claiming that, but for defendant’s failure to perfect the appeal, she would have been successful on the appeal on the ground that, in its November 2003 order, Supreme Court improperly set aside the provisions of the stipulation in redistributing the parties’ securities. Supreme Court (Garry, J.) granted defendants’ motion to dismiss the complaint for failure to state a cause of action. Plaintiff appeals, and we now affirm. "

A recurring theme in legal malpractice litigation is the law firm which takes on a case, and just days before the statute of limitations runs out, says, we don’t want the case.  Courts often accept this type of behavior, reasoning that if the client has a good case, there are many attorneys who would take it, and if it is not good, then "so what?"  So long as there is some time left on the s/l, the attorney will be off the hook.

This view fails to take into account those cases which have merit but might take some investigation, or some preparation, or some actual work to get started.  Then sometimes, this type of bait and walk away backfires.  One repeated instance in the NJ/NY situation in which the NJ 2 year statute of limitations on personal injury conflicts with the NY 3 year.  This is exactly what happened in Conklin v Owen ;2010 NY Slip Op 03399 ; Decided on April 27, 2010 ;Appellate Division, Second Department .  From the decision:
 

"In September 2002 the plaintiff retained the defendant Joseph A. Owen, a New York attorney, and his law firm, the defendant Owen Law Firm, PLLC, to represent him. The representation arose out of an accident that occurred on August 4, 2002, at a fair in Sussex County, New Jersey, when a swing the plaintiff sat on allegedly flipped over. The swing allegedly was owned or maintained by a New Jersey entity named Images of Our Own (hereinafter Images). By letter dated June 21, 2005, Owen withdrew as counsel, advising the plaintiff that New York’s three-year statute of limitations was about to expire and to consult another attorney. The plaintiff alleged that the defendants failed to commence an action before the two-year statute of limitations expired in New Jersey, and, as a result, the plaintiff commenced this legal malpractice action.

An attorney is liable in a malpractice action if the plaintiff can prove that the attorney failed to exercise the skill commonly exercised by an ordinary member of the legal community and that such negligence was the proximate cause of damages (see Rudolph v Shayne, Dachs, Stanisci, Corten & Sauer, 8 NY3d 438, 442; Barnett v Schwartz, 47 AD3d 197, 203; Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth, LLC v Comprehensive Mental Assessment & Med. Care, P.C., 26 Misc 3d 1109, 1120-1121). An attorney may be liable for ignorance of the rules of practice, for failure to comply with conditions precedent to suit, for neglect to prosecute or defend an action, or for failure to conduct adequate legal research (see McCoy v Tepper, 261 AD2d 592; [*2]Gardner v Jacon, 148 AD2d 794, 796; Grago v Robertson, 49 AD2d 645, 646).

To succeed on a 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 Allen v Potruch, 282 AD2d 484; Shopsin v Siben & Siben, 268 AD2d 578). The defendants, as the movants, failed to submit evidence sufficient to establish their entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320). The plaintiff likewise also failed to meet his initial burden on his cross motion (id.). There are triable issues of fact, inter alia, as to whether a timely action could have been commenced in a New York court at the time the defendant attorney withdrew (see CPLR 202). Therefore, the Supreme Court properly denied that branch of the defendants’ motion which was to dismiss the cause of action to recover damages for legal malpractice and the plaintiff’s cross motion for summary judgment on the cause of action to recover damages for legal malpractice. "

This is really the central question in legal malpractice.  While the popular conception is that one needs to find the mistakes, the truth is that there are mistakes in every human endeavor.  What counts in legal malpractice is the linkage to a bad outcome.  However, Justice Schaffer gives a much better response in Landau, P.C. v LaRossa, Mitchell & Ross ;  2010 NY Slip Op 50620(U)
Decided on April 7, 2010 ;  Supreme Court, New York County ;  Schlesinger, J.
 

"This brings the Court to its final discussion of what precisely the plaintiff has to prove to recover from the defendant, and whether either side is deserving of having its motion granted.

As everyone here acknowledges, because it is the law (!), a plaintiff in a legal malpractice case, must do more than simply allege and prove that his attorneys were negligent in representing him; he also must show that the negligence made a difference in the outcome, so that a plaintiff must show that he would have prevailed or received a greater award but for the negligence of his lawyer. [See, e.g., Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438 (2007)] Or in the case of a defendant, would not have suffered the damages he did. The latter situation is what the plaintiff argues here. He urges that because there was ample evidence to show the cases would have likely settled or been successfully tried without the tainted evidence, even if those awards might have been less than was actually received, the damages that he ultimately paid back to the City would have been less, and perhaps much less. The opposing sides differ as to how much the plaintiff has to prove on that point at this stage of the proceedings.

In this regard, a legal malpractice action has often been described as a trial within a trial. This is so because the plaintiff must adduce evidence that shows at least a likelihood that he would prevail on the underlying merits of the case. So, for example, in the First Department decision, Tanel v. Kreitzer & Vogelman, 293 AD2d 420 (2002) the Appellate Division found that the defendants’ motion for summary judgment in the malpractice action should have been granted. While it was conceded that the defendant law firm was negligent in failing to move for a default judgment within one year of the hospital’s default, the plaintiff had failed to successfully oppose the affidavit of the medical expert who opined that there was no medical malpractice. Therefore, the plaintiff was unable to show the underlying case had merit or that but for the negligence of the [*6]defendant, they would have prevailed. All that was required there, as suggested by the Court, was to successfully present competing proof to show that their claim had merit. But they did not and so the action was dismissed.

But here, the plaintiff does show, despite the contrary arguments made by defense counsel, that in both actions there was testimony and documents to prove a prima facie case on the issue of constructive notice, the only seriously contested issue, without the use of the tainted evidence. The 1995 reargument papers by the defendant, for which they must take responsibility, prove that point.

So has the plaintiff here done enough to satisfy the "but for" element of a legal malpractice case? I believe it has. As the Court said in Gladden v. Logan, 28 AD2d 1116 (1st Dep’t, 1967):

Obviously it is impossible to show conclusively that had that action gone to trial it would have resulted in a verdict favorable to plaintiff. What plaintiff must do is to prove such facts in regard to the accident as enables a jury to find that she would have recovered.

As was said in Zarin v. Reid & Priest, 184 AD2d 385 (1st Dep’t. 1992 citing to Carmel v. Lunnay, 70 NY2d 169). "The test is whether a proper defense would have altered the result of the prior action.’ "The plaintiff maintains that it is likely here that it would. The defendants insists that it would not have. Thus, I find a classic dispute regarding the interpretation to be given to the same facts. This, then, should result in a denial of both motions, and it does.

Eisen, P.C. should finally have its day in court on its claim that the defense did not adequately oppose the City’s motion leading to a settlement in the latter’s favor for over a million dollars. There were factual contentions made by the City in that motion that were never challenged. That arguably was not simply a matter of judgment. I say that, because nowhere in the voluminous papers submitted by the defense, is the argument ever made that there were good reasons or any reasons for the omission. The only explanation proferred was that it was Mr. Eisen’s idea and decision to exclude that argument. For reasons previously discussed, that is not good enough.

The plaintiff is not entitled to summary judgment on liability because it is part of its burden in a legal malpractice to show both aspects, i.e., that there was substandard representation which influenced the result in an unfavorable way. The defendants counter that they were not negligent, or that even if they were, there would have been no different result. "

In Martinez v Te 2010 NY Slip Op 03391 ;Decided on April 27, 2010 ;Appellate Division, First Department Catterson, J.  Justice Catterson of the First Department discusses a trial gone wrong in Bronx County, and overrules Judge Wright’s post trial decision.
 

In this  medical malpractice case, the jury sent notes, and then decided against plaintiff.  We’ll let Judge Catterson take it from here: "At 3:15 P.M., the jury returned a verdict for Dr. Te. During polling, one juror, regarding the second interrogatory (whether Dr. Te departed from accepted standards of care by performing the WIT on plaintiff in view of the size of his middle lobe), responded "yes, because we don’t have the actual – well, I say yes and why, because I say no, because we don’t have the standard procedures to go for." The court responded "there was a question from the jury asking for anything, any documents setting forth the standard. There were none." The juror responded "[t]here weren’t, so." Again, plaintiff sought no clarification of the juror’s statements nor made any objections prior to the jury being discharged.

Several months later, the plaintiff moved to set aside the verdict. The plaintiff argued that the proof of liability was "overwhelming," in contrast to Dr. Te’s "weak defense." The plaintiff argued that Dr. Te conceded that it was a reasonable conclusion that the "impassable" stricture in the urethra was caused by the hot water therapy. The plaintiff concluded that this concession weakened the defense, especially in view of Dr. Kaminetsky’s evidence that the stricture was in the bulbar urethra and Dr. Cohen’s testimony that the stricture was caused by the misplacement of the catheter during the WIT procedure. Hence, the plaintiff argued that the verdict was inconsistent with the weight of the evidence. "

One thing we’ve remebered for many years is that an inconsistent verdict must be preserved by asking for corrective action before the jury is disbanded.  Here, the Court holds, "Initially, we note that the bulk of the plaintiff’s arguments are unpreserved. The absence of any objection or request for clarification with regard to the court’s response to the jury note, or to the verdict (Rodriguez v. Budget Rent-A-Car Sys., Inc., 44 AD3d 216, 220, 841 N.Y.S.2d 486, 490 (1st Dept. 2007); Maione v. Pindyck, 32 AD3d 827, 829, 821 N.Y.S.2d 110, 112-113 (2d Dept. 2006)), on the basis that the jury was "confused," prior to the jury being discharged, has deprived this Court of an adequate record to review the claim. If the verdict had been questioned at that time, the matter could have been promptly resolved. Hence, the court, in setting aside the verdict on the basis asserted, necessarily deprived Dr. Te of an opportunity to address the claim when it could have been resolved prior to the jury being discharged.

Accordingly the order of the Supreme Court, New York County (Geoffrey D. Wright, J.), entered on or about August 5, 2009, which granted plaintiff’s motion to set aside the verdict, should be reversed, on the law, the motion denied and the verdict reinstated."

A trend in legal malpractice retainer agreements, especially in the Intellectual Property field is the all encompassing Arbitration clause.  Beyond the statutory required arbitration in attorney fee disputes below a certain dollar figure, these arbitration clauses require arbitration of all disputes, whether in tort, contract or other claims. 

Arbitration has long been said to be quick and economic, but recent experience has led to a different take.  In a $1 million dollar legal malpractice case, the fees to the arbitration company and to the arbitrator may approach $ 75-$100,000.  Of course to bring the same action in Supreme Court costs about $ 385. 

Matter of Brady v Williams Capital Group, L.P. ;2010 NY Slip Op 02434 ;Decided on March 25, 2010 ;Court of Appeals ;Jones, J. investigates the situation in which a litigant can’t afford arbitration, and the consequences.  Without deciding the case [it requires further fact finding in Supreme Court] the Court of Appeals reviewed Federal law in pursuit of an answer.
 

in Green Tree Financial Corp-Ala. v Randolph (531 US 79 [2000]). In Green Tree, the Supreme Court, applying Gilmer, recognized that "the existence of large arbitration costs could preclude a litigant . . . from effectively vindicating her federal statutory rights in the arbitral forum" (531 US at 90), a result which cuts against the broad public policy in favor of arbitration. Further, the Supreme Court adopted a case-by-case approach by ruling that "where . . . a party seeks to invalidate an arbitration agreement on the ground that arbitration would be prohibitively expensive, that party bears the burden of showing the likelihood of incurring [the] costs" that would deter the party from arbitrating the claim (id. at 92). Although the Green Tree Court did not set forth a standard of how detailed a showing the party seeking to invalidate an arbitration agreement must make, the Court held the "risk" of "prohibitive costs is too speculative to justify the invalidation of an arbitration agreement" (id. at 91). "
 

In adopting the standard New York courts are to apply in resolving the question of a litigant’s financial ability, we are mindful of the strong State policy favoring arbitration agreements and the equally strong policy requiring the invalidation of such agreements when they contain terms that could preclude a litigant from vindicating his/her statutory rights in the arbitral forum. We believe that the case-by-case, fact-specific approach employed by the federal courts (see e.g. Bradford; Morrison v Circuit City Stores, Inc., 317 F3d 646 [6th Cir 2003]; Spinetti v Service Corp. Intl., 324 F3d 212, 218 [3d Cir 2003]), as well as the principles set forth in Gilmer and Green Tree, properly acknowledge and balance these competing policies.

Based on the foregoing, we hold that in this context, the issue of a litigant’s financial ability is to be resolved on a case-by-case basis and that the inquiry should at minimum consider the following questions: (1) whether the litigant can pay the arbitration fees and costs; (2) what is the expected cost differential between arbitration and litigation in court; and (3) whether the cost differential is so substantial as to deter the bringing of claims in the arbitral forum (see Bradford, 238 F3d at 556). Although a full hearing is not required in all situations, there should be a written record of the findings pertaining to a litigant’s financial ability. Finally, we do not see the need to detail the precise documentation a court should request to resolve this issue. Such matters are best left to the court’s discretion.

Legal malpractice sometimes seems to be the language franca in law news. It can show up in any setting. Here is a most unusual story from Law.com [link unavailable]:

"A legal malpractice lawsuit against Baker, Donelson, Bearman Caldwell & Berkowitz stemming from a case involving a 6-ton marble sculpture of Jesus Christ’s face may proceed to trial.

The Court of Appeals of Tennessee ruled Aug. 15 that the lower court erred when it threw out two of the former client’s theories for malpractice and granted a final judgment to the plaintiff on a third theory. The decision remanded the case back to the lower court for trial.

The former client is Christus Gardens, a tourist attraction and gift shop in Gatlinburg, Tenn. It sued Baker Donelson for its alleged failure to file an appeal on time in a copyright infringement lawsuit that Christus Gardens was defending.

Christus Gardens lost the infringement case brought by the copyright owner of "Miracle Face," a giant sculpture resembling a burial stone that served as the main attraction at Christus Gardens.

Self-described as "America’s No. 1 Religious Attraction," the park closed in January, according to its Web site.

The owner of the "Miracle Face" copyright sued Christus Garden in federal court after it began selling in its gift shop miniature versions of the sculpture created by other companies. Those companies had used the copyrighted sculpture to create a mold for the smaller items.

The federal district court found Christus Gardens liable for $100,000. "