Taking over a pro-se case can be dangerous, as an attorney in NJ has recently found out.  In this story from Law.com recounts the attorney took over after a pro-se college professor started a employment discrimination law suit:

"A lawyer who prevailed in a Title VII suit three years ago has been engaged since then in an unusual fee fight: against her own client, who says his pro se work entitles him to keep the fees awarded.

Worse for the lawyer, Antonia Kousoulas, the client is asserting his right to the $144,462 in fees and interest — now sitting in a court registry — through a malpractice counterclaim that a federal judge on Monday refused to throw out.

The underlying suit, Kant v. Seton Hall University, 00-Civ.-5204, was filed pro se in October 2000 by Chander Kant, a tenured assistant professor of economics at Seton Hall University’s Stillman School of Business. Kousoulas, who heads an eponymous New York firm, entered her appearance as Kant’s lawyer the following March.

Kant, born in India, claimed national-origin discrimination in the school’s failure on three occasions to promote him to full professor. He also alleged he was denied promotion in retaliation for complaining of discrimination. The discrimination claim was dismissed on summary judgment."

Judiciary Law sec. 487 is perhaps our oldest statute, certainly the oldest statute in existence concerning legal malpractice.  Recently the Court of Appeals decided Amalfitano v. Rosenberg.  Now we are seeing a resurgence of interest, and in this particular case a court reconsidering its earlier decision to dismiss a Judiciary Law 487 case based upon the Court of Appeals Decision.  Amalfitano has two very important holdings: 

    a.  Plaintiff did not have to bring the 487 claim in the underlying action;

    b.  Attorney fees paid to combat the deceit are sufficient damages for a 487 claim.

In  Dupree v Voorhees , 2009 NY Slip Op 29121   Decided on March 23, 2009   Supreme Court, Suffolk County Palmieri, J. Here Supreme Court reconsidered its earlier decision:

"However, the Court’s analysis of the Judiciary Law cause of action was based not on the merits of the facts alleged in support of such a claim, but rather on Appellate Division cases decided before the recent Court of Appeals determination in Amalfitano v Rosenberg, supra. A reading of that case indicates that, contrary to what this Court concluded in the May 1 decision, it should not be fatal to a plaintiff that the misrepresentation(s) upon which the Judiciary Law claim is based became known during the course of the underlying litigation, and that attorneys’ fees alone may be considered damages proximately caused by the wrongful conduct.

Therefore, reading the plaintiff’s complaint and submissions in the present action favorably to the plaintiff, as it must on a motion to dismiss (Guggenheimer v Ginzbrug, supra), it is apparent that the plaintiff here is not attempting to collaterally attack a judgment in a concluded action. As limited by this Court’s determination regarding the absence of any other potential damages, the plaintiff here is seeking to recover the additional legal fees made necessary in her matrimonial action because of the alleged misrepresentation by Villar. "

The Court of Appeals decided an interesting attorney fee sharing case today, in which the successful attorneys called their referring attorneys "unethical" and then promptly lost the case.  Samuel v Druckman & Sinel, LLP   2009 NY Slip Op 02447   Decided on March 31, 2009
Court of Appeals   Pigott, J. determined the following problem.  Attorney A refers a medical malpractice case to Attorney B.  Client agrees to fee and responsibility sharing in writing.  Attorney B later brings in Attorney C to help.  Med mal case is settled and Attorney A is paid his 1/3.  Attorney
B and C ask the court, successfully, for enhanced fees, and get them.  Attorney A asks for his 1/3 and is rebuffed.

"Moreover, contrary to the holding of the Appellate Division, it is of no moment that Sinel did not contribute to that part of the work that resulted in the award of the enhanced fee. In the realm of fee-sharing disputes, "courts will not inquire into the precise worth of the services performed by the parties" (Benjamin v Koeppel, 85 NY2d 549, 556 [1995]). DR 2-107 also makes clear that, regardless of any division of services, where "by a writing given to the client, each lawyer assumes joint responsibility for the representation", attorneys are free to negotiate such division of fees as they deem appropriate (Code of Professional Responsibility DR 2-107 [a] [2] [22 NYCRR 1200.12 [a] [2]; see Lynn v Purcell, 40 AD3d 729, 730-731 [2d Dept 2007]; see also Simon’s New York Code of Professional Responsibility Annotated at 439 [2008]). Further, Samuel, who is bound by the same Code of Professional Responsibility as Sinel, cannot be heard to argue that the fee-sharing agreement and the obligations thereunder must be voided on ethical grounds, when he freely agreed to be bound by and received the benefit of the same agreement, particularly where, as here, there is no indication that the client was in any way deceived or misled (see Benjamin, 85 NY2d at 556).

Based on the foregoing, Sinel is entitled to one-third of the entire legal fee of $1.9 million, with interest from June 10, 2005, the date of the entry of the compromise order, the "earliest ascertainable date" the claim existed …"
 

Among the many weapons a court has is the rarely used injunction against future case filings.  After all, it’s a citizen’s right to sue.  One of our favorite New Yorker cartoons is the young child asking her mom when she will be old enough to sue someone.  Plaintiff in this case won’t be suing anyone until Justice James gives permission. 

In Capogrosso v. Kansas ;2009 NY Slip Op 01916 ; Decided on March 19, 2009 ; Appellate Division, First Department  we see plaintiff’s case dismissed on statute of limitations grounds.  Plaintiff is herself an attorney.  The Appellate Division agreed that prior approval was necessary in the future.
 

"Judgment, Supreme Court, New York County (Debra A. James, J.), entered July 24, 2007, in an action for legal malpractice, dismissing the complaint pursuant to an order, which, inter alia, granted defendant’s motion to dismiss the complaint and enjoined plaintiff from initiating any further litigation without prior approval of the administrative judge of the court in which she seeks to bring a further motion or future action, unanimously affirmed, with costs.

Plaintiff’s action for legal malpractice is barred by the statute of limitations, which began to run no later than the day the order dismissing her underlying medical malpractice action was entered (see McCoy v Feinman, 99 NY2d 295, 298 [2002]). The injunction barring plaintiff from initiating further litigation without prior court approval was justified in light of the evidence of plaintiff’s repeated abuse of the judicial process
and her penchant for vexatious conduct (Sassower v Signorelli, 99 AD2d 358 [1984]).

In this particular case, it is possible to read through the entire Appellate decision and not even know what was alleged against the attorneys.  Rather, on summary judgment, the court determines that plaintiff could not have won against the insurer, hence, legal malpractice case is dismissed.  Unlike other types of cases, the fight is usually on the "case within a case" or on a more basic issue such as statute of limitations.  In this case, Schorsch v. Moses Singer, 2009 NY Slip Op 02293 ,Decided on March 26, 2009 , Appellate Division, First Department  we see:
 

"The court properly found that Margaret Schorsch’s affidavit failed to create an issue of material fact as to whether her brother David was responsible for the 1995 inventory loss, or whether he was an "authorized representative" of M.R.S. Antiques so as to defeat coverage under the "dishonest acts" exclusion in the policy. Her affidavit contradicts detailed statements she previously made under oath in a 1995 case she brought against David wherein she alleged that he, as an integral member of the family business, had stolen company inventory and was thus responsible for the loss. This contradiction negated the authority of her affidavit as a basis for defeating defendant’s motion for summary judgment (see Sugarman v Malone, 48 AD3d 281 [2008]).

Plaintiffs’ assertion that the insurance policy did not contain an exclusion for dishonest acts is contrary to the record evidence. It is true that the insurer’s counsel, in the February 14, 1997 letter denying coverage, mistakenly cited to a different policy it had issued to M.R.S. Antiques. However, the slight differences between the language of the Fine Arts Coverage dishonest acts exclusion and the one incorrectly cited by counsel in the letter do not affect the [*2]material terms of the applicable exclusion. The basic scope is the same: coverage is excluded for dishonest acts by "you" or the insured’s "employees" or "authorized representatives" or "anyone entrusted with the property." Since the inventory loss was caused by the dishonest acts of David, who qualified as an authorized representative of M.R.S. Antiques or a person otherwise entrusted with the missing property, coverage was properly denied. "

Law.Com reprints an interesting article from the Texas Lawyer on the relationship between the economy and legal malpractice litigation.  One theory is that plaintiffs are more in need of recovery, and will either bring more legal malpractice law suits, or are willing to sue over smaller sums.  A second theory is that the economic downturn causes attorneys to take on too much work, which will in any economy create more mistakes, hence later legal malpractice litigation.

From the article; "Economic downturns often increase the risk that lawyers will face unhappy clients complaining of legal malpractice. While some lawyers may think they have nothing to fear since their practices do not involve areas of law many blame for the economic collapse, such a belief is unfounded. Some legal malpractice risks are not tied to any one specialized practice area but simply become more common when the economy goes bad.

Trouble sometimes arises because scenarios lawyers did not consider occur, or difficult economic circumstances test tough-to-draft language. Similarly, insignificant conflicts of interest — either between the lawyer and the client or between clients in multiple representation situations — take on heightened importance as clients face difficult financial circumstances.

Clients, desperate to stay afloat, may be more inclined to sue their lawyers, taking a chance that malpractice litigation will solve their financial problems. Lawyers, too, are more likely to sue clients for fees in a recession. Since legal malpractice is a mandatory counterclaim to a suit for fees, clients often elect to pursue a legal malpractice counterclaim rather than lose their opportunity to do so.

Some legal malpractice issues are simply an inevitable outcome of activity occurring more frequently in a bad economy. A spike in the number of foreclosures often means more people are unhappy with related legal services. People often sue lawyers who act as trustees in foreclosures, alleging failure to conduct the sale in a proper manner, though the more likely scenario is a suit to enjoin foreclosure."

As collection activities rise, more people will seek relief under the Fair Debt Collection Practices Act. Various state and federal fair debt collection practices laws may apply to lawyers involved in collection activities, including foreclosures and collection litigation, so all such lawyers should understand and abide by these laws’ requirements if there is any doubt as to their application.

Lawyers, regardless of specialty, are more likely to have to consider the application of bankruptcy law and related issues applicable to insolvent adversaries in a tough economy. Failure to warn a client of the potential application of voidable preferences easily can trip up attorneys. Lawyers are sometimes sued for failing to make sure that a bankruptcy trustee completes the actions necessary for clients not in bankruptcy to consummate deals with debtors. Any time a lawyer is dealing with an adversary in bankruptcy, understanding the bankruptcy angles is critical.

We do not have firm statistics in this area, but from a general overview of litigation it seems to us that a higher percentage of legal malpractice cases are subject to motions to dismiss under CPLR 3211(a)(1) than are other types of cases.  We have thought about why this might be.  A benign explanation is that since there is always a "case within a case", there is a greater source of dispositive documents which might early derail a case.  A less benign explanation is that the defense bar realizes that the bench does not hold legal malpractice cases in high regard [laws written to legislate behavior of attorneys by attorneys, judged by attorneys], or that plaintiff’s bar is a largely disparate group of practitioners.

In any event, this is a recent case from the Fourth Department on the issue: Younis v Martin
2009 NY Slip Op 02118 ;Decided on March 20, 2009 ; Appellate Division, Fourth Department.
 

"In determining such a motion, "[t]he facts pleaded are to be presumed to be true and are to be accorded every favorable inference, although . . . factual claims flatly contradicted by the record are not entitled to any such consideration" (Gershon v Goldberg, 30 AD3d 372, 373; see Parola, Gross & Marino, P.C. v Susskind, 43 AD3d 1020, 1021-1022). Although we agree with defendant that some factual claims by plaintiff in the complaint were contradicted by evidentiary material that he appended to the complaint, the record establishes that the court’s decision to deny the motion was not predicated upon those factual claims. "
 

In the high flown world of patent infringement, large legal fees are the norm.  Here, from law.Com we see the story of $ 10 million in legal fees, all spent in a fruitless effort to enforce a patent infringement case against Palm.  In the end, plaintiff paid its attorney $ 7 million plus in fees, and paid the opposing attorney $ 2.6 million and all for naught.

"E-Pass Technologies is trying to recover millions it paid to Moses & Singer and Squire, Sanders & Dempsey in an ill-fated patent infringement suit by going after the two firms with a negligent misrepresentation lawsuit.

E-Pass originally sued Palm Inc. and others in the Northern District of California in 2000. But U.S. District Judge D. Lowell Jensen dismissed the litigation in 2006, found the German patent holding company had committed litigation misconduct, and awarded attorney fees to the defendants.

"In advising E-Pass to file and maintain their patent infringement claim, they spent $10 million in legal fees and costs without a sound basis to make the elemental case of patent infringement," said James Rosen of Rosen Saba, which filed the suit for E-Pass against its former lawyers at Moses & Singer and Squire Sanders.

The suit against the law firms (.pdf) was filed in San Francisco Superior Court in January, but Rosen Saba didn’t serve it then because it was waiting for a decision on E-Pass’ appeal of the underlying case, Rosen said. On Friday the U.S. Circuit Court of Federal Appeals affirmed Jensen’s decision, and Rosen said the law firms will now be served.

The suit names E-Pass’ primary trial counsel, Moses & Singer, and a partner at the New York firm, Stephen Weiss. It also targets Squire Sanders and San Francisco partner Mark Dosker.  "