Broadway and Barry Manilow…it seemed destined for success, but lack of investors doomed the production of Harmony.  The case revolved around alleged wrong advice on the date of the second option payment, which plaintiff has argued could have been made with the correct date advice.

The option lapsed, an arbitration with Manilow and others ensued, and plaintiffs sued attorney Robert Barandes of Beckman, Lieberman & Barandes for malpractice. In Snorkel Prods., Inc. v Beckman Lieberman & Barandes, LLP ; 2009 NY Slip Op 03840  Decided on May 14, 2009
Appellate Division, First Department  we see that plaintiffs have salvaged [in the second act], a small part of the case, in which it is determined that although they cannot proceed on a theory of lost profits in the non-production, they may sue for the costs of arbitration, said by Tom Hyland of Wilson Elser, to be in the $ 200,000 range.
 

"The only loss proximately caused by defendants’ negligent advice was plaintiff Snorkel’s loss of its right to produce the play. While there is no nonspeculative basis for valuing [*2]that right, Snorkel may seek to recover as damages the expenses it incurred in connection with the arbitration commenced by Manilow and Appoggiatura to recover their rights. "
 

This morning’s Law Journal revealed a pair of cases in which just about the same thing happened.  Attorneys acted badly, and the client suffers.  Clients depend on their attorneys, and can do just about nothing without the attorney acting as intermediary.  Clients, too, suffer when their attorney is punished by the court.

In Pacheco v Zenobio ;2009 NY Slip Op 50882(U) ; Decided on May 8, 2009 ;Supreme Court, Kings County ;Battaglia, J. we see that "In short, Plaintiffs’ counsel persisted in frivolous motion practice after having been clearly and specifically warned by the Court that a further motion on the same grounds would be sanctionable.

Plaintiffs filed a Note of Issue and Certificate of Readiness on April 25, 2008. At that time, a significant amount of disclosure was outstanding, including the injured Plaintiff’s medical examinations and all disclosure with respect to the third-party actions. While it appeared that some items of disclosure were completed after the filing of the Note of Issue, including the [*2]injured Plaintiff’s medical examinations, it was undisputed that no disclosure had been conducted with respect to the third-party actions, and that defendant Michael Zenobio’s examination before trial had not been held." 

After one losing motion to restore the case to the trial calendar, and then a second, the court wrote: "In the event that Plaintiffs file a disclosure motion without attaching a proper good-faith affirmation or prematurely file a motion involving disclosure, counsel may be subject to sanctions pursuant to 22 NYCRR 130-1.1 or costs pursuant to CPLR 8303(a)."

Perhaps needless to state, the Court’s warnings were not heeded.

Plaintiffs again moved for an order "restoring the plaintiffs [sic] matter to the active trail [sic] calender [sic] by restoring the plaintiffs(s) [sic] Calender [sic] number." Incredibly, the motion was served on the same day as the compliance conference, February 13, 2009. The cross-motion for costs and sanctions followed. "  Plaintiff suffers sanctions and a long delay in the case.

In Jameson v. City of New York  1:07-01312 [subscription] we see worse.  As Mark Fass of the NYLJ reports: "A federal judge has thrown out a lawsuit against New York City filed by a man who was shot several times by his wife, a city police officer, with her city-issued gun.

Eastern District Judge Roslynn R. Mauskopf dismissed the case with prejudice, citing the failure of the plaintiff’s attorney, Michael P. Mays, to comply with a series of court orders demanding his "meaningful participation" in the case.

Judge Mauskopf also ordered Mr. Mays to pay $1,000 in unpaid contempt fines that have accrued over the last month.  Plaintiff has had a bad few years already.

"In April 2006, the plaintiff, 43-year-old retired police officer Todd Jamison, was sitting in his parked Mercedes-Benz in East New York, Brooklyn, when his estranged wife, Officer Alison Jamison, pulled up along side him in a rental car, shot him several times, then sped to the next corner. She then made a u-turn, fired several more shots and sped off.

Ms. Jamison was arrested later that day when she returned the car to a rental agency at Newark International Airport.

Mr. Jamison survived the shooting, though he was hospitalized for several months. According to subsequent news reports, Ms. Jamison shot her husband in a pique of anger over his many affairs. The tabloids soon dubbed Mr. Jamison "Officer Romeo" and the "Casanova Cop."

Ms. Jamison was convicted of attempted murder and sentenced to up to seven years in prison."

Now, plaintiff’s case is dismissed, and his attorney is unlikely to have a very good excuse.

Is this legal malpractice?

Henry Gottlieb at Law.Com reports this $10.6 million Legal Malpractice settlement between Buchanan Ingersoll and RCM Technologies over a stock registration agreement, today.  Here is the news article:

" A lawyer and two Philadelphia firms have agreed to pay $10.6 million to settle a claim that they botched work on a New Jersey company’s stock transactions and failed to alert the company to the errors.

Buchanan Ingersoll & Rooney, the wind-down committee of defunct Clark, Ladner, Fortenbaugh & Young, and a former partner of both firms, Stephen Cohen, agreed to settlements of a malpractice complaint by computer and engineering consultant RCM Technologies of Pennsauken, N.J.

RCM accused Cohen of preparing a stock registration agreement that failed to memorialize a plan to restrict the rights of two key shareholders to sell their RCM holdings. That drafting, plus an alleged failure to alert RCM in time for remedial action, cost the company millions of dollars, according to the Morris County, N.J., suit.

How much the defendants paid was not included in stipulations of dismissal filed with the court. But RCM did disclose the sums in its March 27 annual report filed with the Securities and Exchange Commission.

A comparison of the dates of the stipulations of dismissal and the SEC filing shows that the Clark Lardner settlement in 2007 was worth $800,000 to RCM and that the company recovered $9.8 million — $5.9 million after taxes — in a March 16 settlement with Buchanan Ingersoll."

Real Estate sales and the plummeting economic scene have dominated the news cycles for months now.  Legal Malpractice litigation often follows economic disturbances, and this case, Walker v. Berman, 2009 NY Slip Op 50887(U) ; Decided on May 4, 2009 ; Supreme Court, New York County ; Stallman, J. is an example.  In this case plaintiff wanted to buy an apartment house, but got something different.
Unsophisticated buyer purchases a building at 151 West 76th Street, and relies on broker and attorney to guide buyer through what would turn out to be a difficult process.  In the end, buyer bought a "Class "B" Multiple Dwelling. Ex. G. A Class "B" Multiple Dwelling is a dwelling that is intended for use as the temporary abode of individuals and families; the classification includes hotels, lodging houses, rooming houses, boarding houses, boarding schools, furnished room houses, lodgings, club houses, colleges, and dwellings designated as private dwellings but occupied by one or two families with five or more transient boarders, roomers or lodgers in one household. Multiple Dwelling Law § 4. The Class "B" Multiple Dwelling designation also appears on the certificate of occupancy search ordered by plaintiff prior to agreeing to the purchase (Ex. N), and on the listing notice provided to plaintiff by defendant ."

Plaintiff sues attorney who defaults. [A quick look at the Lawyer’s Diary shows no entry for this attorney.  A search of the OCA attorney directory shows that Ira L. Berman is disbarred.]  Plaintiff now tries to go after the broker, with negative results.

"After the contract was signed, but prior to closing, plaintiff informed Robin that there were some problems with the Certificate of Occupancy, and, allegedly, Robin advised plaintiff to confer with her attorney regarding the legal ramifications associated with the Certificate of Occupancy.

After the closing, plaintiff discovered that the Class "B" Multiple Dwelling classification is used for buildings operated as a Single Room Occupancy (SRO) dwelling, not a regular apartment building (i.e., a Class A multiple dwelling). Consequently, plaintiff asserts that she paid far more for the building that it is worth, believing it to be an apartment building, not an SRO. "

Result?  Plaintiff seems to lose all the way around.  Attorney defaults, has been disbarred, has no insurance defense, and broker is not liable.

Questions of attorney billing, expenses and disbursements often surface in the guise of a legal malpractice defense.  Did the attorneys over bill ?  Did they over-charge for expenses?  May a law firm use Lexis or WestLaw as a profit center?  For example, if the law firm is paying a flat fee for legal research, may it charge hourly legal research rates to the client [not the attorney’s time…legal research fees]

Here is a case from California, which arose after a NY legal malpractice case.  From the National Law Journal:

"A California plaintiffs’ attorney has filed a lawsuit against a New York-based law firm on a behalf of a former client of the firm for what she claims is a hidden but widespread practice within the legal profession: law firms secretly profiting off legal research fees by overcharging clients.

Consumer protection attorney Patricia Meyer filed a suit against New York’s Chadbourne & Parke on March 2 for allegedly overcharging J. Virgil Waggoner, a Texas businessman, by several thousands of dollars for computerized legal research. His bill was roughly $20,000 for the research, she said, but it should have been closer to $5,000. Waggoner v. Chadbourne & Parke, No. BC408693 (Los Angeles Co., Calif., Super. Ct.).

She did not serve the firm until May 1 because, she said, she did not want to compromise other investigations alleging similar claims.

Meyer of San Diego’s Patricia Meyer & Associates said that many similar lawsuits are in the pipeline, noting that she has amassed evidence that shows at least a dozen other law firms are overcharging clients for legal research, but not telling them.
 

According to Meyer, profiting off fees, such as computerized legal research fees, without the clients’ knowledge violates rules of professional conduct set forth by both the California and American bar associations, which limit the recovery of legal fees. She said that law firms can charge clients more for services than what they actually cost — they just have to let the client know upfront. "
 

This case has been widely reported, and we covered it a month ago, too.  Here, from the Blog of Legal Times we read about the $ 72 million legal malpractice verdict based upon patent law.

"Yesterday, a federal jury in San Antonio slapped Akin Gump Strauss Hauer & Feld with a $72.6 million judgment for botching a patent application filed by a Texas-based company and an inventor.

Akin Gump had been hired in 1995 to handle a series of patent applications for Air Measurement Technologies, a company created by Louis Stumberg Jr. and his partner, James Fulton, who had invented an automatic “man down alarm” for firefighters and other emergency personnel. Stumberg currently lives in San Antonio, and Fulton died in 2001.

In their complaint, AMT, North-South Corp., which held a license on the invention, and Stumberg accused the firm of failing to disclose information to the U.S. Patent and Trademark Office. Plaintiffs also accused former Akin Gump partner Gary Hamilton, now a name partner at Hamilton & Terrile in Austin, of withholding information with the intent to deceive the PTO.

AMT and Stumberg initially sued six parties for infringement, and received settlements totaling $9 million. "

"In a statement, Akin Gump says, “A judgment has not yet been entered on the verdict against Akin Gump. However, if a judgment is entered, Akin Gump will appeal because the evidence does not support the jury’s verdict.”

Two of the hardest causes of action to prove and prevail upon in legal malpractice are the "failure to appeal" claim and one under Judiciary Law 487.  Failure to appeal claims are difficult because one must not only prove that the attorneys could have and failed to file an appeal, but one must also prove [to a judge and not to a jury] that the appeal would have prevailed.  Judiciary Law 487 claims, although recently cited with approval by the Court of Appeals in Amalfitano v. Rosenberg, remain in general disfavor.  Here is a case which illustrates both: McCluskey v Gabor & Gabor ;
2009 NY Slip Op 02757 ;Decided on April 7, 2009 ;Appellate Division, Second Department .
 

"Here, the plaintiff alleged, inter alia, that the defendants committed malpractice by failing to take an appeal in the underlying age discrimination action from so much of an order as dismissed his causes of action alleging fraud. We find, however, that, inasmuch as the causes of action alleging fraud were properly dismissed (see Kaufman v Torkan, 51 AD3d 977, 980; Weitz v Smith, 231 AD2d 518), the plaintiff cannot establish that the defendants committed malpractice by failing to take an appeal from that order (see Suffolk Ave. Car Wash & Lube v Oberman, 256 AD2d 75; Saferstein v Klein, 250 AD2d 831). Consequently, the Supreme Court should have granted that branch of the defendants’ cross motion which was for summary judgment dismissing so much of the complaint as alleged that they committed legal malpractice by virtue of their failure to take an appeal from the portion of the order in the underlying action dismissing the fraud causes of action.

The defendants’ alleged misconduct, even if it were proven, did not rise to a violation of Judiciary Law § 487 that would warrant the imposition of treble damages (see Gelmin v Quicke, 224 AD2d 481, 483). Consequently, that branch of the plaintiff’s cross motion which was for leave to amend the complaint to add causes of action alleging a violation of Judiciary Law § 487 was properly denied as patently devoid of merit (see Lucido v Mancuso, 49 AD3d 220, 226-227, lv granted AD3d, 2008 NY Slip Op 68750[U][2d Dept 2008]; Glorioso v DeBlasio, [*3]227 AD2d 588, 589). "

Originally dismissed in Supreme Court, this case was re-instated by the Appellate Division, First Department last week. Mortenson v Shea ;2009 NY Slip Op 03611 ;Decided on May 5, 2009
Appellate Division, First Department is a situation in which a New Jersey law firm was retained to sue a New York law firm for legal malpractice.
 

"This action was dismissed on the erroneous grounds that the New Jersey defendants were not and could not be retained to actually commence a legal malpractice action against an attorney in New York State, and that the limited services provided by defendant law firm in attempting to settle the underlying claim did not include a duty to advise plaintiff about the applicable New York statute of limitations. A legal malpractice claim may arise out of the giving of faulty advice to a client (see Scheller v Martabano, 177 AD2d 690 [1991]). Furthermore, an attorney may be liable for his ignorance of the rules of practice, his failure to comply with conditions precedent to suit, his neglect to prosecute an action, or his failure to conduct adequate legal research (see McCoy v Tepper, 261 AD2d 592 [1999]). "