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]). "

This case took several readings to try and sort out the story.  Plaintiff in this legal malpractice case, Citrin v Baratta & Goldstein ;2009 NY Slip Op 03597 ;Decided on May 5, 2009 ;Appellate Division, First Department  was a defendant in the underlying action. There, "Following a five-day jury trial in a prior action alleging fraud and conspiracy against plaintiff Citrin and three codefendants, the jury reached a verdict in favor of the plaintiffs and awarded substantial compensatory and punitive damages. A motion by Citrin for judgment notwithstanding the verdict was denied by the trial judge, who noted in his memorandum decision that the verdict had been supported by the evidence and also rejected Citrin’s other claims, including conflict of interest based on the fact that the same attorney had represented her and a codefendant."
 

Somehow, [through a money payment in settlement?] plaintiff then obtained a stipulation turning the verdict on its head.  "Citrin, through a successor counsel, then settled the matter pursuant to a stipulation, so-ordered by the trial judge, who vacated his prior order "as it pertains to any and all liability against Rita Citrin, directly and/or indirectly, in law and/or based on equitable claims, including all findings of fact supporting such liability."

Citrin then commenced the instant action against her trial attorneys for legal malpractice and breach of contract, alleging a conflict of interest in their representation of both her and a codefendant in the prior action."
 

So, plaintiff obtained a stipulation [sort of like an indulgence] which turned it all around, and allowed her to sue her attorneys.  Motion to dismiss denied.

In Byron Chem. Co., Inc. v.  Groman;  2009 NY Slip Op 03465 ;  Decided on April 28, 2009 ;  Appellate Division, Second Department  plaintiff employer sued its attorneys for an employee benefit provision which was drafted by attorney firm 1, which was then taken over by attorney firm 2.  At issue was whether the doctrine of continuous representation tolled the statute of limitations, and if it did, were the two law firms to be held in the case. The Second Department held that while the law firms continued to intermittently represent the employer, such was not sufficient to toll the statute of limitations.
 

"Contrary to the plaintiff’s contention, the statute of limitations was not tolled by the continuous representation doctrine (see Dignelli v Berman, 293 AD2d 565; cf. Shumsky v Eisenstein, 96 NY2d at 168; see also Maurice W. Pomfrey & Assoc., Ltd. v Hancock & Estabrook, LLP, 50 AD3d 1531; Zaref v Berk & Michaels, P.C., 192 AD2d 346). The defendants’ subsequent representation in matters unrelated to the specific matter that gave rise to the alleged malpractice was insufficient to toll the statute of limitations (see Dignelli v Berman, 293 AD2d at 565). Accepting the facts alleged in the plaintiff’s complaint as true, there was a nine-year lapse between the defendants’ representation as to the employment agreements. The continuous representation doctrine does not contemplate such intermittent representation (see Williamson v PricewaterhouseCoopers LLP, 9 NY3d 1, 9; Shumsky v Eisenstein, 96 NY2d at 167-168; Loft Corp. v Porco, 283 AD2d 556). Accordingly, the Supreme Court correctly granted the defendants’ motions to dismiss the complaint insofar as asserted against them as time-barred. "

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. "