From time to time we forget that Louisiana is a completely different environment.  Its laws are different, its emphasis is different, and even its terms are wholly different.  Here is an article from Hinshaw & Culbertson on the case of McGuire v. Mosley Rogers Title Co., L.L.C., 997 So.2d 23 (La. App. 2008) in which plaintiffs had to admit that they received a letter from their attorney following a closing of the sale of their house [in which they obtained a purchase money secutity interest] and didn’t open the envelope for a year.

"Plaintiffs retained attorney Lance Mosley to help them with the sale of commercial real estate. The sale involved a mix of seller financing and a traditional loan. As a part of the deal, plaintiffs agreed to subordinate their mortgage to the lender’s mortgage. For protection, plaintiffs sought personal guarantees from the buyers and allegedly obtained Mosley’s assurance that he would secure such guarantees. After signing, plaintiffs received copies of the closing documents in the mail but did not even open the envelope, much less review the documents. Over one year later, when the buyers began to have trouble paying, plaintiffs discovered the absence of personal guarantees.

Plaintiffs then sued Mosley for legal malpractice for failure to obtain the personal guarantees. Mosley filed an exception based on prescription, or the statute of limitations. The trial court granted this exception and dismissed the case because the prescriptive period for legal malpractice is one year from when the malpractice should have been discovered. The trial court held that plaintiffs should have discovered the malpractice when they received the closing documents in the mail. Plaintiffs appealed.

Attorneys gnash their teeth when litigating against pro-se parties.  The thought is that the pro-se gets an advantage; they are not held to tight deadlines, are not the subject of rule-specific dismissal, nor are they required to hew to the line of traditional court procedure.

As an example, this pro-se plaintiff in  Kleinser v Astarita; 2009 NY Slip Op 03401; Decided on April 28, 2009; Appellate Division, First Department amended the complaint without leave of court, and then after the decision dismissing the complaint against the amendees, moved for leave to add them and succeeded.  Adding individual defendants to the caption when they were partners in the already named defendant law firm may or may not have collateral benefits to the pro-se.  In this case, law of the case was not an issue.
 

"The law of the case doctrine, however, is not implicated because the court did not alter a ruling by another court of coordinate jurisdiction but rather its own ruling (Wells Fargo Bank, N.A. v Zurich Am. Ins. Co., 59 AD3d 333 [2009]). "[E]very court retains continuing jurisdiction to reconsider its [own] prior interlocutory orders during the pendency of the action" (Liss v Trans Auto Sys., 68 NY2d 15, 20 [1986]), and may do so "regardless of statutory time limits concerning motions to reargue" (id.). Thus, even if plaintiff’s motion for leave to add the four partners were a belated motion to reargue the prior order dismissing the action as against those partners for failure to state a cause of action, the court had discretion to [*2]reconsider its prior order, sua sponte, and correct it. Such discretion was properly exercised here in view of plaintiff’s pro se status. "

The informal way some people go about hiring an attorney is well documented in a new case decided by Justice Ling-Cohan in Camone v. Levy, 2009 Slip Op 30843(U).  Here plaintiff trustee is of a generation skipping trust, and attorney is shown materials in order for him to tell plaintiff whether a federal estate tax return must be filed. 

Plaintiff and others met with an accountant and Levy, but did not retain Levy.  They were told that if the estate had to file a tax return there was a specific cutoff.  Plaintiffs never spoke directly with Levy again.  Plaintiff’s claim is that he directed the accountant to hire Levy, but did not do so directly.  Plaintiff did not even follow up to see if Levy was actually retained.  Levy reviewed the trust documents, which did not include the current financial records and told the accountant that a tax return had to be filed by December 6.  On December 7, one day late, financial records were faxed to Levy.  He prepared a tax return and sent it to the accountant for signature.

Case was dismissed against Levy on the basis that he was never retained to act for plaintiff, and that he received materials only after the deadline.

Here, in an article from NY Lawyer is the shocking outcome of a huge London legal malpractice case.  Linklatters, on trial for $ 55 Million ends up paying $ 5 [actually 5 pounds] as a nominal verdict.  Queery: no motion for summary judgment?  In NY courts, we see such outcomes in pre-answer motions and in motions for summary judgment.

Fromthe article: "Linklaters has staved off paying out a $55 million negligence claim — one of the largest made against a U.K. law firm in recent years — having instead to pay out 5 pounds ($7.50) in nominal damages to telecom company Levicom.

In the judgment, handed down in the Royal Courts of Justice Tuesday, Mr Justice Andrew Smith ruled that, despite finding Linklaters’ early advice to the claimant was expressed negligently, it did not bear any loss to the client and therefore awarded nominal damages of just 5 pounds.

On all other issues, Smith found Linklaters had not acted negligently.

In his judgment, Smith said: "I conclude that Linklaters’ advice was negligent in some respects, but the negligence did not cause [the claimant] Levicom any loss. Linklaters were therefore in breach of contract, but are liable for only nominal damages of 5 pounds."

The judgment follows a five-week trial which started in January after an unsuccessful mediation at the end of last year, over claims Linklaters gave negligent advice to the Baltic telecom company. "

Is an attorney required to perform more work that set forth in a retainer agreement?  If the attorney does not perform more work, will the statute of limitations be tolled by the client’s insanity?  These two questions are partially answered in Turner v Irving Finkelstein & Meirowitz, LLP ;2009 NY Slip Op 03158 ;Decided on April 21, 2009 ;Appellate Division, Second Department .
 "The plaintiff allegedly was assaulted by a coworker at his place of employment in 1997. The defendant law firm represented the plaintiff in the ensuing claim before the Workers’ Compensation Board (hereinafter the Board). The claim was disallowed, the Board affirmed that decision, and full Board review was denied. No later than May 2002, the defendant informed the plaintiff that its representation was complete."

Plaintiff unsuccessfully appealed, and then years later, sued the attorneys.  "In November 2006, the plaintiff, pro se, commenced the instant action, alleging that after he was [*2]denied full Board review, the defendant failed to advise him of "any other legal remedies" relating to the workplace incident. The defendant moved to dismiss the complaint ….In opposition, the plaintiff asserted that he suffered from a mental illness for which he had been hospitalized several times and, thus, he was entitled to a tolling of the statute of limitations pursuant to CPLR 208. The Supreme Court rejected the plaintiff’s claim because the medical records he relied on were not in admissible form.

Although the evidentiary facts alleged by the plaintiff reveal the existence of an issue of fact as to applicability of the insanity toll, we nevertheless affirm on other grounds. "
 

This story from Law.Com by Zusha Elinson tells of the aftermath of a $ 82 million Sony Patent case, with its reports of witness buying, false testimony and unreliable evidence.  From the Legal Malpractice perspective here is the nugget:

"Craig Thorner was the key witness in the Sony legal team’s effort to overturn an $82 million patent infringement verdict in a case against Immersion Corp. over vibrating video game controllers. Sony claimed that Immersion paid Thorner to keep quiet about inventions of his that could have invalidated Immersion’s patents.

But U.S. District Judge Claudia Wilken wouldn’t retry the case, concluding in 2006 that Thorner was an unreliable witness and that there was strong evidence — supported by testimony and internal Sony documents — that Sony paid $150,000 for Thorner’s testimony.

The patent fight between Silicon Valley’s Immersion and Sony, and its salacious post-trial motions, were followed closely by local lawyers.

In a wide-ranging suit filed Tuesday in New Jersey District Court, Thorner accuses Sony’s outside and in-house lawyers of snookering him into the $150,000 deal, which came in the form of convoluted agreement to license his patents. He also accuses Sony’s outside counsel — Gregory Gewirtz of New Jersey firm Lerner David Littenberg Krumholz & Mentlik — of malpractice for allegedly acting as his lawyer in the deal, but for Sony’s benefit.

The lawsuit claims that the lawyers "contrived to take advantage of Thorner’s inexperience and lack of resources in order to (i) obtain a patent license from Thorner on extremely favorable terms, and (ii) induce Thorner to testify against Immersion."

Reached Thursday afternoon, Gewirtz denied the allegations.

"In my view, all the allegations against me and my firm are reckless and false and all, of course, denied," he said. "We will very vigorously defend against all the claims."

The way the deal at issue worked, according to the lawsuit, was this: Electro Source — a video game company also being sued by Immersion — would pay Thorner $150,000 to license his patents. The deal, however, was actually being funded by Sony, which in turn got a license from Electro Source according to the lawsuit and court hearing transcripts.

Thorner claims that Gewirtz agreed to be his lawyer in the negotiations with Electro Source, but was actually looking out for Sony’s interest
 

California corporation retains New York law firm to process a trademark application, which fails.  California plaintiff sues New York defendant  for legal malpractice in Federal District Court, SDNY.  Case is dismissed on jurisdictional basis.  Case is later brought in State Court in New York.  Does California or New York statute of limitations apply?

In Kat House Productions v. Paul Hastings Janofsky & Walker, Justice York determines that California law applies, based upon CPLR 202.  The borrower statute’s purpose is to prevent forum shopping between states and [as the Court of Appeals favors, have a "bright line rule".]

"CPLR 202 is designed "to prevent forum shopping by plaintiffs and to adhere to the generally accepted definition." Global Fin. Corp, v. Triarc Corp., 93 NY2d 525. 

"CPLR 202 is designed to add clarity to the law and provide the certainty of uniform application to litigants.  This goal is better served by a rule requiring the single determination of a plaintiff’s residence than by a rule dependent on a litany of events relevant to the `center of gravity’ of a contract dispute." Global  at 530.

Justice York then decided that since the "place where investors resided and sustained the economic impact of the loss" was the state for borrowing purposes, that the California one year statute of limitations applied.

When may the representation of a client  end, what work does an attorney have to do for a contingent fee client, and how do legal malpractice considerations filter in?  Those questions are answered, in this context, in Matter of Mill Creek Phase 1 , Supreme Court, Kings County, Gerges, J.  Must a law firm perform appellate tasks under a contingent fee arrangement with no further legal fees due it, and what happens if the law firm refuses to perform ?

There, "Non-party Goldstein, Goldstein, Rikon & Gottlieb, P.C. (the Firm) moves for an order awarding it legal fees and disbursements in accordance with the retainer agreement executed by claimants Joseph Vigliarolo and Frank J. Vigliarolo and the closing statement that it prepared. Claimants cross move for an order: (1) directing the Firm to turn over the entire disputed amount of $11,506.46, plus interest; (2) directing the Firm to pay the bill of costs awarded to the City of New York Law Department with respect to the NYCTL 1998-1 Trust appeal in the amount of $1,860; and (3) awarding sanctions in the amount of $2,500 pursuant to 22 NYCRR 130-1.1(a).
 

Claimants further allege that the Firm agreed to accept a contingency fee to represent them in this matter and that the retainer agreement provided that the fee included the cost of defending any appeal taken by the condemnor. Accordingly, claimants did not object to the Firm’s decision to continue to litigate the issue of the amount of interest due on the lien because they did not believe that they were incurring any costs. Moreover, claimants contend that they would not have agreed to pay $11,500 to oppose the appeal, since the lien would have been reduced by only $8,000 if they had been successful. It is their opinion that the Firm chose to use the instant proceeding as a test case in an effort to establish that the interest rate applicable to a tax lien is 6 percent, and not the 18 percent claimed by the lienor. Further, since the additional interest that accrued was only $5,200, while the lien at the time of the commencement of the appeal was $7,000, the financial benefit of pursuing such an appeal was minimal.

Herein, the Firm’s retainer agreement with claimants unquestionably provides that the contingency fee agreed to "shall include the defense of any appeal taken by the condemnor but does not include appeals taken by the client for which, if the attorneys agree to their retention for that purpose, additional compensation will be required." It is equally clear that the appeal at issue herein was taken by the City and defended by claimants. From this it follows that the Firm is not entitled to charge additional fees to defend the appeal…."