The rule is pretty clear; one may not sue a criminal defense attorney unless there is a showing of innocence.  Innocence means acquittal or reversal on appeal.  Here, in Peo v. Radcliff is a stunning example of how and why the rule exists.  In this case, defendant was convicted after a bench trial.  The implication is that the attorney told his client that the trial judge gave him "the wink" and that an acquittal was in the offing.  Note the confluence of literature, TV and this trial.

In People v Radcliffe ;2009 NY Slip Op 52593(U) ; Decided on December 18, 2009 ; Supreme Court, Bronx County ; Price, J. , "On July 10, 2003, defendant was convicted after a non-jury trial of criminal possession of a weapon in the second degree (PL 256.03 [2]) and assault in the second degree (PL 120.05 [2]) by Supreme Court Justice Dominic Massaro. Upon that conviction, Justice Massaro entered judgment against this defendant on September 25, 2003, sentencing him to two concurrent determinate terms of imprisonment of fifteen years and seven years, respectively. On November 22, 2005, the Appellate Division, First Department, rejected defendant’s challenge to the trial court’s suppression rulings and affirmed his conviction. On February 24, 2006, Court of Appeals Judge Victoria Graffeo denied defendant’s petition seeking leave to appeal. "

"The People, in opposing defendant’s motion, argue that Mr. Feige indeed provided meaningful and effective representation in that he thoroughly cross-examined the People’s witnesses at the pre-trial suppression hearing, emphasized weaknesses in the People’s case and delivered a persuasive summation. They further argue that defendant’s waiver of his right to a jury trial and Mr. Feige’s decision to rest on the pre-trial hearing testimony and stipulations as the trial record were not only a reasonable trial strategy, but were tactically justifiable since they were based on Mr. Feige’s belief that doing so would achieve a favorable result. The People also correctly note that although the determination of whether counsel provided meaningful and effective representation is not dependent on achieving the desired outcome, here the trial court ultimately acquitted the defendant of the most serious charges, attempted murder in the second degree and assault in the first degree. This, they argue, supports the notion that Mr. Feige’s representation was indeed meaningful and effective; that the result was not what the defendant desired, expected or liked is of no moment. This court agrees. "
 

"Since defendant’s motion is predicated on Mr. Feige’s mea cupla statements, scrutiny is warranted here as well. Generally, mea culpa statements made by trial counsel cannot be taken at face value because counsel may be motivated by either a desire to assist a former client or protect their own reputation (Barclay v Spitzer, 371 F Supp 2d 273, 283 [EDNY 2005]; but cf, e.g., Henry v Poole, 409 F3d 48 [2d Cir 2005]). Moreover, where, as here, an otherwise excellent attorney, who consistently performs in a highly credible manner as a member of the criminal defense bar, unexpectedly and inexplicable pleads ineptitude, skepticism is particularly called for. As such, this court is wary of Mr. Feige’s claim that he lays awake at night wrought with guilt for having made "the most stunning and appalling decision" of his career.

This court finds it acutely disturbing that after spewing his mea culpas, Mr. Feige implicitly abdicates responsibility to Justice Massaro for the verdict not being what he anticipated. "Had Justice Massaro not done what he did, I would had [sic] proceeded with a trial, as I had throughout my career and as I always intended to do." Unfortunately, for both Mr. Feige and the defendant, nothing in the record before this court remotely suggests that Justice Massaro assured, promised or guaranteed that he would acquit the defendant. Even Mr. Feige’s characterization that Justice Massaro gave him the "wink" is devoid of any factual support. In fact, as noted above, Mr. Feige based his strategic decision on a dubious head-nod and "unmistakable" look, which does not remotely qualify as a promise or guarantee.[FN1] To infer that Justice Massaro somehow made false or misleading representations is intellectually dishonest.

If Mr. Feige is indeed guilty of that which he claims to be, it would perhaps constitute far more than ineffective assistance of counsel. It is patently absurd to believe that an extraordinarily experienced defense attorney with an admittedly inherent distrust for the judiciary would suddenly unravel into a hideously incompetent advocate merely by the way a judge looked at him.[FN2] Of course, it is not for this court to speculative what Mr. Feige thought, believed or intended when concluding that defendant’s best opportunity for success was to waive a jury. What appears unmistakable, however, is the striking similarity between the defendant’s case and an ostensibly fictitious case contained in Mr. Feige’s book "Indefensible."[FN3] Also unmistakable is that in one episode of Mr Feige’s television drama, "Raising the Bar," another ostensibly similar [*10]fictitious case involves a corrupt judge who agrees to acquit the defendant but fails to do so.[FN4]

Perhaps Mr. Feige does indeed seek redemption for his perceived malpractice or perhaps there are other motivational forces in operation. Neither is of any moment. If, however, Mr. Feige is indeed guilty of the ills he claims to be, then in light of the accomplished author and producer he has become, disbarment, which he curiously appears too eager to accept, seems far from adequate. If, on the other hand, Mr. Feige is simply remorseful for misreading Justice Massaro, such remorse hardly qualifies as error, much less ineffective assistance of counsel; it is merely an unsuccessful defense strategy.

A recurring problem in medical malpractice cases is one in which the attorneys take on a case, start the case, and then at the critical juncture when an expert has to be named, abandon the case.  From a business point of view, this behavior is incomprehensible.  On further reflection, it seems to us that the real explanation is that some medical malpractice attorneys really believe that enough cases will settle prior to needing an expert, that it is feasible to start cases they never intend to finish.

In Riley v. Segan Nemerov & Singer P.C., 303097/08;  Decided: December 14, 2009;  Justice George D. Salerno;BRONX COUNTY;  Supreme Court we see a slightly different variant.  In this med mal case, the claim was lack of informed consent to plastic surgery, and the case went well until it was ready for trial, and the expert dropped out.  From the decision it seems that the surgeon-expert lost his license.  From that point on, the law firm just did not get a new expert, or even oppose the eventual motion to dismiss after the case was marked off calendar.  Shockingly, the court determined that no expert was even needed at all.

"Applying the above principals, this legal malpractice action was timely commenced within three years after its accrual. This legal malpractice claim accrued on the date that plaintiffs’ actionable injury occurred, namely, the date of the Order dismissing the case, June 20, 2005, or on the date of the decision, April 29, 2005, upon which the said Order was made. Using either date as the date of accrual, this action was timely commenced within three years of accrual, because it was commenced on April 16, 2008. See McCoy v. Feinman, supra.

Even assuming, arguendo, that the legal malpractice claim accrued prior to April 16, 2005, the continuous representation doctrine would toll the statute of limitations until the attorney-client relationship ended. Segan has not shown that their representation was unequivocally ended prior to April 16, 2005.

Leon Segan never sought leave of court to withdraw as counsel, as required by CLR 321 and 22 NYCRR 604.1(6). Rather, Segan remained the attorney of record until after Justice Silver rendered his decision on April 29, 2005. Segan continued to make appearances in the STP Part of this court on plaintiffs’ behalf, including appearing for oral argument on Dr. Goldstein’s motion to dismiss, on March 11, 2005, and April 8, 2005.

The Segan firm represented plaintiffs for seven years when Leon Segan sent his clients the letter dated the August 25, 2004. Lisa Riley states that, at that time: "it was [her] understanding that my medical malpractice action against Dr. Goldstein was active and that the defendants were doing everything possible to represent [her] best interests." Lisa Riley also indicates that she relied upon and trusted Segan to legally represent her, and she cooperated with them at every juncture. 7

It is also noted that, from the Bill of Particulars served by the Segan firm in the underlying Malpractice action against Dr. Goldstein, that Lisa Riley had suffered severe depression including a "suicide attempt", requiring psychiatric attention, caused by the deformities and scarring resulting from the alleged botched breast-reduction surgery. 8 Especially under such circumstances, Segan should have unambiguously orally communicated with the Plaintiffs, preferably in-person, (and certainly not merely by crafted letters), if they intended to end this long-term relationship of trust and confidence, which began when Lisa Riley was an infant.

"An attorney "does not have an unfettered right to unilaterally withdraw" as counsel, and "[good cause is required, to be determined, ultimately, by the Court" upon motion by said counsel.[citations omitted]." Frenchman v. Queller, Fisher, Danced, Saurianness, Washer & Pool, LP, 24 Misc. 3d 486 (N.Y. Sup. Ct. 2009)."

An often found situation in legal malpractice cases is the successor counsel problem.  In a nutshell, here it is.  Plaintiff hires attorney 1 who makes a mistake.  Plaintiff finds out about the mistake, which has not led to outright dismissal, but rather, to a problem.  Plaintiff hires attorney 2 who is unable to solve the problem, and the case is dismissed.  May plaintiff sue attorney 1 ?  The answer is not clear, as it depends on the individual facts, but attorney 1 will certainly defend on the proposition that successor counsel took over prior to outright dismissal, and had the last clear chance to fix the problem, thus insulating attorney 1 from liability.

Here, in Guzzello v Steinberg, Finneo, Berger, Barone & Fischoff, P.C. ;2009 NY Slip Op 09427 ;
Decided on December 15, 2009 ;Appellate Division, Second Department  we see one additional element added in.  Plaintiff is too late to sue one of the defendants, but they are free to cross-claim amongst themselves.
 

"Although Berger and the Berger firm established that the action insofar as asserted against them was time-barred, the appellants are not precluded from asserting the cross claims against Berger and the Berger firm (cf. Sommer v Federal Signal Corp., 79 NY2d 540, 558; Hill v Metropolitan Suburban Bus Auth., 157 AD2d 93, 100). Moreover, the Supreme Court improperly considered the argument of Berger and the Berger firm that they were entitled to summary judgment dismissing the appellants’ cross claims insofar as asserted against them on the ground that the appellants, as successor counsel, had the opportunity to protect the plaintiff’s rights. That argument was raised for the first time in the reply papers of Berger and the Berger firm (cf. Matter of Harleysville Ins. Co. v Rosario, 17 AD3d 677, 677-678). In any event, since, under the circumstances, the appellants cannot be considered successor counsel (cf. Northrop v Thorsen, 46 AD3d 780, 783; Johnson v Berger, 193 AD2d 784, 786; Sucese v Kirsch, 177 AD2d 890, 892), that argument is without merit. Accordingly, the court should have denied that branch [*2]of the motion of Berger and the Berger firm which was for summary judgment dismissing the appellants’ cross claims insofar as asserted against them. "
 

Rule 1215, setting forth the necessity for a retainer agreement between attorney and client, has some very strong language.  Under the rule, in the absence of a retainer agrement, no legal fee can be enforced.  This is the rule, no?

Actually, no.  A case this week in the Appellate Division, First Department underscores the reluctance of a court to give the rule any substance.  in Nabi v Sells ;2009 NY Slip Op 09408 ;Decided on December 17, 2009 we see yet another re-iteration of the rule in Seth Rubenstein.  No retainer agreement is necessary, and while collection under the retainer agreement may not proceed, the attorney may yet recover in quantum meruit.

"It was error to dismiss the first cause of action merely because plaintiff is not entitled to the declaration he seeks (see Lanza v Wagner, 11 NY2d 317, 334 [1962], cert denied 371 US 901 [1962]); the proper course is to declare in favor of defendants (see Holliswood Care Ctr. v Whalen, 58 NY2d 1001, 1004 [1983]; Mongelli v Sharp, 140 AD2d 273 [1988]). The aspects of the contingency fee retainer agreement prepared by defendants and signed by plaintiff that allegedly render it noncompliant with 22 NYCRR 1215.1 do not bar defendants from recovering in quantum meruit (see Seth Rubenstein, P.C. v Ganea, 41 AD3d 54, 60-64 [2007]; see also Egnotovich v Katten Muchin Zavis & Roseman LLP, 55 AD3d 462, 464 [2008]; Nicoll & Davis LLP v Ainetchi, 52 AD3d 412 [2008]). " We need not decide whether any of the alleged defects in the retainer agreement, alone or in combination, bar recovery in contract. Provided that defendant attorneys were not discharged for cause, in which case they would not be entitled to any fee
(see Matter of Montgomery, 272 NY 323, 326 [1936]), their recovery would be limited to the fair and reasonable value of their services, computed on the basis of quantum meruit (see Matter of Cohen v Grainger, Tesoriero & Bell, 81 NY2d 655, 658 [1993]; Lai Ling Cheng v Modansky Leasing Co., 73 NY2d 454, 457-458 [1989]; Schneider, Kleinick, Weitz, Damashek & Shoot v City of New York, 302 AD2d 183, 186, 188-189 [2002]; Smith v Boscov’s Dept. Store, 192 AD2d 949, 950 [1993]). The rationale for the rule is that, due to the special relationship of the utmost trust and confidence between a client and an attorney, the client has the right to discharge the attorney at any time, for any reason, or for no reason, regardless of any particularized retainer agreement, and the client should not be compelled to pay damages for exercising the absolute right to cancel the contract (see Martin v Camp, 219 NY 170, 173-176 [1916]; see also Demov, Morris, Levin & Shein v Glantz, 53 NY2d 553, 556-557 [1981]; Matter of Montgomery, 272 NY at 327; Matter of Krooks, 257 NY 329, 331-332 [1931]). Against the client’s unqualified right to terminate the attorney-client relationship is balanced the notion that a client should not be unjustly enriched at the attorney’s expense or take undue advantage of the attorney, and therefore the attorney is entitled to recover the reasonable value of services rendered

Is there a difference between quantum meruit and the retainer agreement amounts?  Actually, no. "Although the annulled contingency fee agreement no longer governs the parties’ relationship, it may "be taken into consideration as a guide for ascertaining quantum meruit" (Matter of Tillman, 259 NY 133, 135 [1932]), in addition to such pertinent factors as " the nature of the litigation, the difficulty of the case, the time spent, the amount of money involved, the results achieved and amounts customarily charged for similar services in the same locality’" (Schneider, Kleinick, Weitz, Damashek & Shoot, 302 AD2d at 188-189 [quoting Smith, 192 AD2d at 951]).
"

It’s just a few words spoken to the record, and in this case, none of the participants dispute what was the agreement between the parties, yet, here, a settlement was not a settlement, and all because the judge made a decision and held firmly to it.

In Diarassouba v Urban ;2009 NY Slip Op 09420 ; Decided on December 15, 2009 ;Appellate Division, Second Department  here is what happened:

"While the court was in recess and the jury was deliberating, Conrad Jordan, counsel for the plaintiff, communicated to the defendants’ counsel, Barry M. Viuker, that his client had authorized him to accept a settlement offer in the sum of $150,000. Viuker provided no confirmation of the settlement, but rather asked, "Do we have a settlement?" Jordan responded that [*2]he accepted the settlement offer. Viuker proceeded to leave the room for several minutes, without having responded in any way to Jordan’s statement. The defense counsel’s question, "Do we have a settlement?" was his only and final mention of the settlement agreement until after the court took the jury’s verdict.

During Viuker’s absence from the courtroom, Jordan informed the court clerk that the parties had reached a settlement, although he did not provide a specific settlement amount. The clerk did not record this information, but said that he would inform the Judge, who was already on her way to the courtroom to read a new jury note. Viuker then returned to the courtroom. When the judge arrived at the courtroom, Viuker inquired, off the record, as to the contents of the jury note. The Judge responded that the jury had reached a verdict. Once again, Viuker left the room for a short while.

When Viuker returned, Jordan asked the court to memorialize the settlement on the record prior to taking the verdict, but the court refused Jordan’s requests.

"Mr. Jordan: Could I put my request on the record?
"The Court: Once I have a verdict, I take the verdict, and then the parties are free to do what they agreed to. An agreement is an agreement, counsel.
"Mr. Jordan: Why can’t we put the agreement to settle the case for $150,000 on the record?
"The Court: Because I said what I have to say. Let’s proceed."

Viuker was silent throughout this whole exchange.
The verdict was then taken in the plaintiff’s favor, finding that Dr. Lubin and Dr. Horiuchi were each 35% at fault for the plaintiff’s injury. The jury awarded the plaintiff the sum of $800,000 for past pain and suffering and the sum of $650,000 for future pain and suffering over 30 years. "

Even though Supreme Court ruled that the settlement was effective, the Appellate Division stated a blackletter rule:  "Thus, a settlement agreement is valid only if both parties stipulate to the settlement in a written agreement or it is made in open court and placed on the record. "

" 
 

One might think that after a loss of the underlying case, a legal malpractice action will undoubtedly be successful.  That thought is, of course, naive.  As an example. suppose you are a landlord and owner of a commercial setting who sells to buyer, who is to pay for the sale over time.  buyer disappears, and the store is left unattended.  Seller watches, then padlocks the store for safety, then later runs the business to pay for the upkeep.  Buyer later returns and sues.  Seller’s attorney defends, does not file a counterclaim, then bails out just before trial.  Seller loses the trial.  Malpractice?  US District Court says no.

In CHARL-HO PARK, v.. REIZES; 5:06-CV-0843 (GTS/GJD)UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK 009 U.S. Dist. LEXIS 117077 the court summarizes: "Plaintiff’s Complaint alleges that Defendant committed legal malpractice in the following ways: (1) he improperly advised Plaintiff of his legal rights regarding the padlocking of the premises in question; (2) he improperly advised Plaintiff of the amount that Plaintiff’s tenants needed to pay to cure a default; (3) he failed to assert affirmative defenses and counterclaims on behalf of Plaintiff in an action filed against Plaintiff; and/or (4) he breached his professional duty by abandoning Plaintiff on the eve of trial, thereby [*2] causing Plaintiff to lose that action."

"Specifically, the Court finds that whatever issue of fact may exist with regard to the padlocking incident is not material to the issue of whether Defendant breached a legal duty to Plaintiff. The Court makes this finding for two reasons.

First, whether Plaintiff notified Defendant that his wife had padlocked the area is immaterial because Plaintiff admitted in his deposition that he asked his wife to lock the store for security reasons, as opposed to locking the store for the purpose of keeping the Lees from entering. (Dkt. No. 23, Part 10, at 30-31 [Plf.’s Deposition].) Defendant properly notes that New York courts recognize a landlord’s padlocking or changing of locks as an eviction only when the landlord does so for the purpose of keeping a tenant out. 1 As a result, even assuming that Defendant owed Plaintiff a duty to advise him with regard to whether to padlock the premises in question, Defendant would have had a reasonable basis for not advising Plaintiff to remove the lock. As a result, Defendant [*7] did not breach any duty to Plaintiff with regard to the padlocking incident.

"In any event, whether or not Defendant gave this advice or calculated the amount owed (or even whether the calculation was incorrect) is immaterial to Defendant’s motion for summary judgment. This is because, just as Plaintiff has done with regard to the issue of the padlocking of the doors discussed above in Part III.A. of this Decision and Order, Plaintiff has failed to provide admissible evidence to meet the burden needed to survive summary judgment on the element of causation in his claim regarding the default claim. "

"However, even assuming that Defendant erroneously notified Plaintiff that filing a counterclaim would cost more money (rather than notifying him that it merely could cost more money and time), Plaintiff has failed to adduce admissible record evidence from which a rational factfinder could conclude that such an error caused him any harm. "The object of compensatory damages is to make the injured client whole. Where the injury suffered is a loss of a cause of action, the measure of damages is generally the value of the claim lost." Campagnola v. Mulholland, Minion and Roe, 76 N.Y.2d 38, 42 (N.Y. 1990).."

Nate Raymond of the NYLJ reports a second unusual legal malpractice case, this time with an attorney as the plaintiff.  He sues over a case concerning his former law office and whether he was due money in the wake of its breakup.  "Partnership law expert Leslie Corwin is being sued by an attorney he represented who claims Mr. Corwin mishandled an arbitration with the attorney’s former firm.  The case seems to revolve around the failure of either plaintiff or defendant to list an expert witness for use in the arbitration.  Because he was listed as a witness, but not an expert witness, his testimony on valuation was precluded.

Unanswered, but discussed in the case is why plaintiff did not take advantage of the right to offer documentary evidence on valuation.  Is that comparative negligence?

Allen Roberts, a partner at Epstein Becker & Green, sued Mr. Corwin and his firm, Greenberg Traurig, in October, claiming they were negligent in failing to prove liability against Mr. Roberts’ former partners at New York employment boutique Roberts & Finger. Mr. Roberts is seeking more than $6.6 million in damages (See the Complaint).

Mr. Corwin, in an answer filed earlier this month, acknowledged Mr. Roberts lost the dispute but said the fault lies with Mr. Roberts, who, as an experienced lawyer, acted as co-counsel in his own case. Mr. Roberts "failed to heed advice" from Mr. Corwin, the answer claims, and caused the alleged damages himself. Greenberg also said Mr. Roberts owes the firm more than $141,000 in legal fees."
 

"Mr. Roberts’ side rested without offering other testimony to support theories of valuation and liability, according to Mr. Roberts complaint.

The arbitration panel gave Mr. Corwin the opportunity to submit valuation theories in a chart or addendum. Mr. Corwin did not submit those, the complaint said, nor did he seek to reopen the hearing to receive further evidence"
 

Nate Raymond of the NYLJ reports on a $55 Million legal malpractice case  Ableco Finance LLC v. Hilson, Ippolito and Paul Hastings Janofsky & Walker LLP arising from loans made to a large retailer, and events after the loan went sour, bankruptcy filings, and apparently a big pay back by the lender in Bankruptcy Court.

"A financing unit of Cerberus Capital Management L.P. has sued Paul, Hastings, Janofsky & Walker, claiming the law firm gave it bad advice in connection with a loan the private equity firm made last year to a company looking to bring retailer Steve & Barry’s out of bankruptcy.

Ableco Finance LLC, a unit of Cerberus with more than $6 billion under management, filed an amended complaint Friday in Manhattan Supreme Court against its former lawyers seeking more than $55 million it said it lost because of the $125 million loan. Ableco claims it would never have made the loan last year if the Paul Hastings team had advised it that the buyer would not have rights to all of Steve & Barry’s inventory, which Ableco understood would back the loan.

"No competent, diligent finance lawyer would have put his client in such a vulnerable position," Ableco’s complaint reads in part."

We obtained the Amended Complaint which  has as its main point "Paul Hastings Failed to Advise Ableco That the Terms of the BH/S&B Agency Agreement Made it  Impossible for Ableco to Get a Perfected First Priority Lien on S&B’s Entire Inventory"

The Amended Complaint has but a single claim in Legal Malpractice against all defendants.

As the NYLJ article continues: "It was a difficult time to make a loan, given "an economy that was suffering major disruptions in the housing and credit markets," Ableco said in its complaint. To ensure it got paid back in full, Ableco said it told Paul Hastings lawyers to require a first priority lien on Steve & Barry’s entire inventory, which Ableco estimated to be worth $183.7 million. Language agreeing to a first priority lien made it into the commitment letter drafted by Paul Hastings, and Ableco agreed to make the loan.

But according to the complaint, Ableco had not been advised about an earlier agreement between Bay Harbour and Steve & Barry’s that would have made a right to the entire inventory impossible. Bay Harbour’s earlier agreement with Steve & Barry’s left the retailer with control of more than 50 percent of its stores. While the estate had given Bay Harbour a lien on the assets at these stores, the estate kept priority rights to the inventory and sales proceeds that came ahead of that lien.

As a result, Ableco claimed it was in fact impossible for it to receive its lien on a large portion of Steve & Barry’s inventory. Ableco said Paul Hastings did not provide a copy of the earlier agreement between Bay Harbour and the retailer’s estate, nor communicated its terms, before Ableco made the loan.

With the economy worsening, the company created by Bay Harbour, BH S&B Holdings, began to struggle and it filed for Chapter 11 bankruptcy in the Southern District in November 2008. "