We can’t tell an awful lot of the facts of the underlying case from the Second Department decision in Nelson v Roth   2010 NY Slip Op 00658   Decided on January 26, 2010   Appellate Division, Second Department but we do see the ironic clash of two well known Legal Malpractice defense firms, one acting as a plaintiff’s attorney while at the same time defending an attorney in this case. 
 

Plaintiff sues defendant for legal malpractice.  In an attempt to knock out the plaintiff’s attorney (success would not end the case, but would definitely place it in jeopardy, and create a time out ) defendant started a third party action against the plaintiff’s attorney, and then at the same time moved to dismiss the complaint.

"The Supreme Court properly granted that branch of Sieradzki’s motion which was to dismiss the third-party cause of action to recover damages for legal malpractice. "On a motion to dismiss pursuant to CPLR 3211(a)(7), the pleading is to be afforded a liberal construction" (Kempf v Magida, 37 AD3d 763, 764). The court must accept the facts as alleged in the complaint as true, accord the plaintiffs the benefit of every possible favorable inference, and determine whether the facts as alleged fit within any cognizable legal theory (see Arnav Indus., Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner, 96 NY2d 300, 303; Leon v Martinez, 84 NY2d 83, [*2]87-88). To establish a cause of action alleging legal malpractice, a plaintiff must prove, inter alia, the existence of an attorney-client relationship (see Terio v Spodek, 63 AD3d 719, 721; Velasquez v Katz, 42 AD3d 566, 567). To prove an attorney-client relationship, there must be an explicit undertaking "to perform a specific task" (Terio v Spodek, 63 AD3d at 721). " It is well established that, with respect to attorney malpractice, absent fraud, collusion, malicious acts, or other special circumstances, an attorney is not liable to third parties, not in privity, for harm caused by professional negligence’" (Moran v Hurst, 32 AD3d 909, 911, quoting Rovello v Klein, 304 AD2d 638, 638). Viewing the third-party complaint in the light most favorable to Roth, she failed to allege the existence of an attorney-client relationship between herself and Sieradzki.

Further, the Supreme Court properly denied that branch of Roth’s cross motion which was for summary judgment dismissing the complaint. "To make a prima facie showing on a motion for summary judgment, the attorney in a legal malpractice action must present admissible evidence that the plaintiff cannot prove at least one of the essential elements of a legal malpractice claim" (Terio v Spodek, 63 AD3d at 721). The evidence submitted demonstrated the existence of a triable issue of fact as to whether there was an attorney-client relationship between Roth and the plaintiffs. In light of Roth’s failure to meet her prima facie burden, it is unnecessary to consider the adequacy of the plaintiffs’ opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

Finally, the Supreme Court properly, in effect, denied that branch of Roth’s cross motion which was to disqualify Sieradzki as counsel for the plaintiffs. Roth failed to satisfy her burden by offering any proof that Sieradzki’s testimony would be "necessary" (Bentvena v Edelman, 47 AD3d 651, 652). "

Client hires law firm, law firm is said to have made mistakes, law firm is said to have made corrective motions based upon its own mistakes, and then charged client.  Law firm sues client, and client answers without filing a counterclaim.

Its not evident from the decision but we guess that client then hired an attorney who seeks to change an affirmative defense to a counterclaim for legal malpractice.  in addition, attorney seeks to add an employee of the law firm as a "third party" defendant, and asks for a copy of the file and discovery responses.  How does Judge Gische of Supreme Court, New York County decide?

In Wagner Divs, P.C. v Gargano 01/20/2010 ;  2010 NYSlipOp 30156(U)  Justice Gische decides:

a.  In a regular case, retaining lien trumps need for file

b.  In a case with a legal malpractice counterclaim, need for file trumps law firm’s retaining lien

c.  Law firm has to allow photocopying

d.  Defendant must pay for the copies

e. Amendment should be, and is, freely granted here.

Victoria Kremen suffered unnecessary, and negligent bilateral mastectomy.  It is said that removal of secondary sexual characteristics is akin to removal of ones central identity.  Ms. Kremen was subjected to a horrible misdiagnosis, with subsequent surgery.

Things only went from bad to worse.  She hired attorneys, but the action was not filed correctly.  From law.com: ""[T]he following illustrates why members of the public may hold cynical views of the legal profession," Supreme Court Justice Emily Jane Goodman began her ruling in Kremen v. Benedict P. Morelli & Associates, 101739/06.

Victoria Kremen underwent a double mastectomy after allegedly being misdiagnosed with breast cancer. She accused Morelli Ratner and the now defunct Schapiro & Reich of mishandling the action she brought against her doctors, a suit that was ultimately dismissed because the 2 1/2-year statute of limitations had expired.

Morelli Ratner was formerly known as Benedict P. Morelli & Associates.

Kremen also lost her bid to sue the attorneys for legal malpractice on the ground that they had failed to preserve her case. Now, Morelli Ratner is pressing a counterclaim against Kremen to recoup $6,000 the lawyers spent in advancing her medical malpractice case. "

The Appellate Division reversed Justice Goodman’s decision on the statute of limitations against Morelli Ratner and dismissed. "Plaintiffs allege negligence in legal representation in their original medical malpractice action, which was dismissed as untimely. Specifically, they allege failure to argue their entitlement to the "bankruptcy toll" of the statute of limitations. 11 USC § 108 (a) (2) provides debtors a two-year toll of an existing statute of limitations period, but only if "such period has not expired before the date of the filing of the petition." Here, the bankruptcy toll was not triggered because the statute of limitations had already run. "

Morelli Ratner then sued plaintiff for $ 6000 of expenses.  Justice Goodman has rendered a decision on this claim. From Law.Com: "A Manhattan judge has slapped the personal injury firm of Morelli Ratner with $6,000 in sanctions for bringing a "spiteful" and "wasteful" suit against a former client. Supreme Court Justice Emily Jane Goodman’s ruling comes three months after she sharply criticized the firm for launching a "nonsensical" action to recover the costs of an unsuccessful medical malpractice action from Victoria Kremen. "

Professional Judgment is what we hire attorneys for, and what we expect from them.  Litigants are generally unable to proceed through difficult thickets of choice of courts, choice of strategy, choice of questions to ask at a trial.  Nevertheless, we expect that our attorney will exercise correct and satisfactory professional judgment.  When the client suspects that a bad result came is a departure from good and accepted practice, rather than justified by the facts, a legal malpractice case will follow.

In our examination of STONEWELL CORP., and RICHARD GLADSTONE, Plaintiffs, -against- CONESTOGA TITLE INSURANCE CO., WILLIAM KOLSHORN, 04 CV 9867 (KMW)(GWG) we looked at the legal malpractice definitions and application.  Today, we look at the professional judgment defense.

"The Court is not persuaded by Stonewell’s contention that Dollinger was negligent in advising Stonewell to proceed in the "bias[ed] forum" of the Middle District of Florida instead of the more "impartial" forum of the New York district court. (See Pl. Resp. at 10, 13, DE 126.) The Court will not endorse the view that some district courts are "biased" while others are "impartial," and that an attorney’s duty to a client includes determining whether or not a court is "biased." The appropriate inquiry is whether the defendant-attorney exercised a "degree of care, skill and diligence commonly possessed and exercised by a member of the legal community." Nobile, 265 F. Supp. 2d at 288. Based upon the record before the Court, Dollinger met the requisite standard of care and conduct in pursuing the first "innocent owner" petition. 5

 Stonewell’s reliance [*19] on Rubens v. Mason, 527 F.3d 252 (2d Cir. 2008), is without merit. In Rubens, the Court of Appeals for the Second Circuit vacated the district court’s granting of defendant’s motion for summary judgment in a legal malpractice suit, holding that one alleged act — the attorney’s decision not to present an expert witness in an arbitration proceeding — may have constituted negligence. In a highly fact-specific analysis, the appellate court noted that, under some circumstances, "[d]etermining whether [the attorney’s] alleged failures were negligent or merely reasonable tactical decisions present[] a question of fact that [can]not be resolved on summary judgment." Rubens, 527 F.3d at 254 (quoting Rubens v. Mason, 387 F.3d 183, 190 (2d Cir. 2004)). In the instant case, the Court must engage in its own fact-specific analysis to determine whether there is a disputed issue of fact as to whether Dollinger’s conduct was negligent or proximately caused any damages to Stonewell. See Rubens, 527 F.3d at 255; Wester, 757 N.Y.S. 2d at 501.

The Court finds that Dollinger’s decision to notify the court in the Southern District of New York of the status [*20] of the Florida proceedings and to request an interim stay pending decision on the first "innocent owner" petition in Florida satisfies the basic standards of legal practice. It is undisputed that the Florida and New York courts both had jurisdiction over the issue of whether Stonewell was a bona fide purchaser of the Center Point Mall property, a legal matter that would essentially determine the validity of Stonewell’s title. See United States v. Weiss, 467 F.3d 1300, 1307 (11th Cir. 2006) (holding that the Florida district court had jurisdiction over the criminal forfeiture proceeding pursuant to 18 U.S.C. § 3231, while the New York district court had diversity jurisdiction over the Williams action pursuant to 28 U.S.C. § 1332).

Given the highly complex and substantively overlapping legal proceedings touching upon the validity of Stonewell’s purported title to the Center Point Mall property at the time, there was no clearly superior legal strategy for Stonewell. It was reasonable for Dollinger to inform the Williams court about the Florida proceedings and to seek an interim stay in the Southern District of New York. The Williams court itself agreed with Dollinger’s assessment of the [*21] situation in granting the interim stay. The record does not indicate that Dollinger’s decision to give priority to the litigation in the Florida district court by filing the "innocent owner" petition there, and to seek the interim stay of the Williams action, constituted anything less than competent legal representation under difficult circumstances. Where a claim of legal malpractice is based upon a plaintiff’s displeasure, developed only with the benefit of hindsight, regarding a defendant-attorney’s selection of one among several reasonable strategic options, summary judgment should be granted in defendant’s favor. See Rosner, 481 N.E. 2d at 554; Bernstein, 554 N.Y.S. 2d at 490."

Complex multi-state, multi-district, criminal-civil high stakes litigation…really, it can only end in a legal malpractice case.  Here, in Stonewell Corp. v. Conestoga Title Ins. Co., 2010 U.S. Dist. LEXIS 1107 [2004 cv 9867] a decision by Judge Kimba Woods lays out just how complex a case can get.  Today we will deal with the elements of legal malpractice, and tomorrow, with the defense of "professional judgment."

"Stonewell asserts three separate claims alleging that Dollinger committed legal malpractice while representing Stonewell in proceedings related to Stonewell’s purported property rights over a Center Point Mall property in New Jersey. First, Stonewell claims that Dollinger committed legal malpractice by: (1) advising Stonewell to pursue certain legal actions, including filing an "innocent owner" petition pursuant to 18 U.S.C § 1963(l) in the Middle District of Florida; (2) failing to advise Stonewell of the risks of taking such legal actions; (3) advising Stonewell to stay related proceedings in the Southern District of New York; and (4) failing to advise Stonewell of or otherwise [*3] address an alleged conflict of interest with respect to a second "innocent owner" petition in light of Dollinger’s relationship with Conestoga Title Insurance Company (hereinafter "Conestoga"). "
 

"A plaintiff must establish the following elements for a claim of legal malpractice under New York State law: (1) an attorney-client relationship, (2) attorney negligence (3) that is the proximate cause of a loss, and (4) actual damages. See Allianz Ins. Co. v. Lerner, 416 F.3d 109, 118 (2d Cir. 2005); Estate of Re v. Kornstein Veisz & Wexler, 958 F. Supp. 907, 920 (S.D.N.Y. 1997). To succeed on a motion for summary judgment in a legal malpractice action, the defendant must establish that the plaintiff cannot prove at least one of these essential elements. See Rubens v. Mason, 527 F.3d 252, 255 (2d Cir. 2008); Carney v. Philippone, 332 F.3d 163, 167 (2d Cir. 2003).

To find negligence, a court must find sufficient evidence that the defendant-attorney’s conduct "fell below the ordinary and reasonable skill and knowledge commonly [*14] possessed by a member of his profession." Achtman v. Kirby, McInerney & Squire, LLP, 464 F.3d 328, 337 (2d Cir. 2006) (quoting Grago v. Robertson, 49 A.D.2d 645, 370 N.Y.S. 2d 255 (N.Y. 1975)). If the pleadings and evidence indicate no more than an "error of judgment" or a "selection of one among several reasonable courses of action," dismissal of the claims is warranted. Rosner v. Paley, 65 N.Y.2d 736, 481 N.E. 2d 553, 554, 492 N.Y.S.2d 13 (N.Y. 1985); see also Nobile v. Schwartz, 265 F. Supp. 2d 282, 288 (S.D.N.Y. 2003) (noting that a plaintiff must show that the attorney "failed to exercise that degree of care, skill and diligence commonly possessed and exercised by a member of the legal community").

Common examples of circumstances for which an attorney may be held liable include "ignorance of the rules of practice, failure to comply with conditions precedent to suit, or . . . neglect to prosecute or defend an action." Hatfield v. Herz, 109 F. Supp. 2d 174, 180 (S.D.N.Y. 2000) (quoting Bernstein v. Oppenheim & Co., 160 A.D.2d 428, 554 N.Y.S. 2d 487, 489-90 (1st Dep’t 1990)) Allegations that amount to nothing more than a "dissatisfaction with strategic choices" will not support a malpractice claim as a matter of law. Bernstein, 554 N.Y.S. 2d at 490."

We’re proud to point today to the article "Settlements and Subsequent Legal Malpractice" in today’s New York Law Journal.  One interesting wrinkle on the legal malpractice scene is how settlements, and the rote allocutions at settlement affect legal malpractice.

"It is well settled that to establish a cause of action for legal malpractice, "a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney’s breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages." Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438 (2007), quoting McCoy v. Feinman, 99 NY2d 295 (2002), "To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence" Rudolf at 442; Fireman’s Fund Ins. Co. v. Farrell, 57 AD3d 721 (2d Dept. 2008).

The four elements of legal malpractice, put more simply, are: departure, proximity, ascertainable damage, and the "but for" element. The defense of a legal malpractice action may take place on any of the four elements set forth. Was the behavior of the attorney a departure from the degree of skill and care? Was the departure a proximate cause of the damage? Was there one or more than one cause of the damage? "

One way that settlements may upset a later legal malpractice case is when the judge asks "Are you satisfied with the work of your attorney?"  How this question crept into a settlement allocution is buried in ancient ritual.  How important it is is shown in a few recent cases.

"Recently, one Appellate Division case and two Supreme Court cases have challenged the "effectively compelled" principle, and in effect, turned it on its head. The setting for this triumvirate of cases is matrimonial settlements. For reasons not sanctioned in the CPLR or any statute, the custom on settlement of a matrimonial action is to allocute the two parties to the settlement. Beyond the questions of whether the parties have capacity, are in sufficient health to understand, are not taking cognitive altering medication, the court often chooses to ask whether the clients are satisfied with their attorney’s work. The genesis of this practice is not clear; its purpose seems to be to insulate the attorneys from later criticism. In this latest set of cases, the insulation appears to work."

For the rest of the discussion, please see today’s NYLJ.

Our meme today, again, is that legal malpractice is to be found in all endeavors involving attorneys.  It is no stranger to Bankruptcy proceedings, and in today’s case, a verdict is found against a Long Island Bankruptcy attorney.  Mizuno v Fischoff & Assoc. ;2010 NY Slip Op 50064(U) Decided on January 14, 2010 Supreme Court, Suffolk County ;Whelan, J.  demonstrates how plaintiff lost his house when the case could have been saved.  Supreme Court, Suffolk County entered a judgment for plaintiff in a substantial amount.
 

"Can a homeowner who loses his home to foreclosure, after filing four separate bankruptcy petitions, prevail on a legal malpractice claim against his bankruptcy attorney and recoup the remaining equity in the home as damages? This Court not only finds the claim to viable but, based upon this record, holds that a substantial award of damages is appropriate. "

"In order to prevail in an action to recover damages for legal malpractice, a plaintiff must establish both that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, resulting in actual damages to the plaintiff, and that "but for" the attorney’s negligence, the plaintiff would have succeeded on the merits in the underlying action or not have sustained any damages (Dupree v Voorhees, _ AD3d _ , 2009 WL 4681166 [2d Dept Dec. 8, 2009]; Ali v Fink, 67 AD3d 935, _ NYS2d _ [2d Dept 2009]; Santiago v Fellows, Epstein & Hymowitz, P.C., 66 AD3d 758, 886 NYS2d 766 [2d Dept 2009]).

Here, it is obvious, from the testimony of defendant’s associate, that the provision in the Conditional Order which held that a default would not be protected by the filing of a new petition, was simply forgotten. The legal advise to commence a new bankruptcy proceeding was contrary to the dictates of the May 1, 2000 order and offered no protection to plaintiff, in response to the foreclosing bank’s claim that plaintiff was in default of the Conditional Order. Moreover, the defendant’s law office just assumed that plaintiff had not complied with the Conditional Order and accepted the representations made by the foreclosing bank’s attorney."
 

"With regard to the element of causation, plaintiff has to show that he would not have incurred any damages but for the attorney’s negligence. Defendant attempted to show that plaintiff did not have the ability to pay the monthly mortgage payments and offered plaintiff’s tax returns for the 1998 (Def. Ex. P), 1999 (Def. Ex. Q), 2000 (Def. Ex. L), 2001 (Def. Ex. M), and 2002 (Def. Ex. O) as evidence of plaintiff’s inability to pay. Plaintiff offered bank account statements from December 2001 to April 2002 (Pl. Ex. 8) to demonstrate the ability to pay the monthly payments. Plaintiff also testified that for the year, 2002, the month of July was the only [*6]month that he would have had difficulty making the required payments.

In deciding the issue of causation, the Court need not speculate as to the financial ability of the plaintiff to pay into the future. The sole issue to be determined is whether "but for" the negligence of the defendant, plaintiff would not have lost his home to foreclosure. Here, plaintiff satisfied his burden by the submission of evidence that he could comply with the Conditional Order during the time frame in question, that is, satisfaction of the November 15, 2001 payment by January 15, 2002 and each monthly payment thereafter up to the foreclosure sale date of April 4, 2002. Such evidence satisfied plaintiff’s obligation to establish causation.

Having found for the plaintiff on the issue of liability, the Court must address the issue of damages. The object of awarding damages in a legal malpractice action is "to make the injured client whole" (Campagnola v Mulholland Minion & Roe, 76 NY2d 38, 42, 556 NYS2d 239 [1990]). Compensatory damages are generally awarded where a plaintiff can demonstrate that he or she suffered any actual damages (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 31 AD3d 418, 818 NYS2d 153 [2d Dept 2006]). "

Plaintiff sues law firm for legal malpractice.  Case rests on representation in a commercial real estate lease.  There was a four year period in which the landlord was building the premises, and the question of in what year  a tax escalation clause starts led to this legal malpractice case. 

Global Bus. Inst. v Rivkin Radler, LLP 01/13/2010 Other Courts 2010 NYSlipOp 30062(U)  follows a familiar path in which the court makes factual determinations, as a matter of law even when the parties have not moved for summary judgment.

Several years ago, the matter was transferred to Civil Court pursuant to CPLR 321(d).  Now plaintiff seeks to increase the ad damnum clause and restore to Supreme Court.  They fail, because the court scrutinizes the evidence and determines [via summary judgment or something like it] that it was the client and not the law firm who negotiated the tax escalation clause themselves.