We’ve noted in the past that many legal malpractice cases arise when attorneys work outside of their zone of experience.  As an example, there are unique rules for medical malpractice which do not exist elsewhere.  A certificate of merit is required to be filed with the complaint, and the failure to file it can have serious ramifications.  That obligation does not exist elsewhere.

Experienced medical malpractice attorneys know this; one-timers may not.  Beyond a special filing, an experienced practitioner has a bevy of experts and techniques to obtain the medical records, to review for deviations, to understand the case law in the area.  One-timers do not, and trouble may well ensue.

Injuryboard.com brings us this insight:  when the economy dips and attorneys take cases outside of their core areas, legal malpractice claims show an uptick. "Experts predict that the current economic downturn will give rise to an increasing number of legal malpractice lawsuits. Historically, claims against lawyers escalate during economic downturns.

There are several different reasons for the increase in malpractice claims: (1) assets lose value; (2) deals go sideways; and (3) attorneys start practicing outside of their core competence. This last reason is perhaps the most interesting.

Lawyers feeling economic pressure are more likely to retain work they would otherwise refer out to someone with more specific knowledge. We see this with increasing frequency when it comes to personal injury claims.

Instead of referring personal injury claims to personal injury attorneys, business and real estate and family law attorneys are starting to handle these claims to prop up their own sagging practices. This leads to a host of problems.

While personal injury claims can see simple on their faces, they are laced with complexities and really only can be competently handled by experienced practitioners. There are just too many "hidden" traps for the occasional practitioner."

This case Tavarez v Hill ;2009 NY Slip Op 29002 ;Decided on January 5, 2009 ;Supreme Court, Bronx County ;Victor, J.     recently partially decided covers two areas. The first area is disqualification of counsel because of multiple representation of four car accident victims, all in one car. "Should the court, sua sponte, stay the motion made for summary judgment until there is a final resolution of a potential "conflict of interest" issue arising from plaintiffs’ counsel’s representation of multiple parties in the same action? "

"The court’s records reflect that no additional motion on the issue of liability has been made; and thus, there is a meaningful risk that counsel for plaintiffs may be burdened with a conflict of interest, since the issue of liability of each driver is yet to be determined, and, in this proceeding, the passenger plaintiffs may have interests adverse to those of their driver."

"An attorney who chooses to represent multiple parties in the same action will risk being held to have violated the Code of Professional Responsibility (and its applicable Disciplinary Rules); as well as sanctioned for having engaged in a conflict of interest; and in addition thereto, suffer the indignity and cost of becoming a defendant in a malpractice action. "

The second area is shortcomings in opposition to a motion for summary judgment.  "In support of the motion, the defendants have submitted, among other things, numerous affirmations from physicians in various specialties. In opposition, counsel for the plaintiffs has submitted only unaffirmed medical reports and test results; and in adddition, failed to address arguments made by the defendants as to "gaps in treatment" and the failure to provide evidence of "recent" examinations supporting the serious injury claims made by each said plaintiff. "

Here is a fascinating case from the Fourth Department.  Lawfirm refuses to pay expert for his trial testimony [what has happened to the demand that a certified check be handed over prior to taking the stand?] and expert sues for his fee.  Law firm turns around and sues for loss of case based upon expert’s testimony.  In Kane v Shapiro, Rosenbaum, Liebschutz, & Nelson, L.L.P. ;2008 NY Slip Op 10422 ;Decided on December 31, 2008 ;Appellate Division, Fourth Department  we see just the tip of an iceberg.  In this portion plaintiff was directed to obtain his own copy of the transcript in order to oppose a motion.  "Memorandum: Plaintiff commenced this action seeking to recover fees allegedly due from defendant law firm for his services as an expert witness in a medical malpractice action, and defendant asserted a counterclaim seeking the contingent legal fees that it allegedly lost as a result of plaintiff’s expert testimony in the underlying action. Supreme Court erred in granting in part plaintiff’s motion seeking disclosure sanctions by directing defendant to provide plaintiff with that portion of the trial transcript in the underlying action consisting of the direct testimony of plaintiff as well as his testimony on cross-examination. The affidavit submitted by plaintiff’s attorney in support of the motion failed to demonstrate "that counsel has conferred with counsel for [defendant] in a good faith effort to resolve the issues raised by the motion"
 

Is it legal malpractice to lose a case because of an expert’s testimony?  It depends on which side of the prism one stands.  If the mere selection of an expert is claimed to be negligence, then the judgment rule is largely applied.  If it is failure to cross-examine that expert, then a wholly different analysis ensues.  We’ll follow on with this analysis in a later entry.

This case discusses three important concepts in legal malpractice.  Standing, immunity  and proximate cause. Cangro v. Solimon  2008 Slip Op. 33345. holds that  under Rule 1(h) of Part 36 of the Rules of the Chief Judge, a guardian ad litem’s attorney requires judicial appointment, and is immune from suit, absent permission from the court. The same is true of trustees, referees and receivers.

Beyond this interesting tidbit, the case is worth reading for questions of proximate cause, emotional damages in legal malpractice and qualified immunity for attorneys in litigation.

There is a traditional cadence to the start of a legal malpractice case.  First comes a dispute, retention of an attorney, initial success, then a downturn into failure followed by a legal malpractice case.  With the real estate market very troubled, and foreclosures on the rise, a prediction of legal malpractice/foreclosure actions is warranted. Here is one such possibility.Greenpoint Mtge. Funding, Inc. v Valentin ; 2009 NY Slip Op 50002(U) ; Decided on January 5, 2009 ; Supreme Court, Kings County ; Lewis, J.  
 

Defendant home owner had several opportunities to fix the foreclosure situation, but failed in the end to stave off the foreclosure sale.There is a tantalizing clue that an attorney was retained and was unable to fix the situation.

"Calixte Valentin, one of the named defendants herein, has moved this court by Order to Show Cause, dated the 2nd day of October, 2008 to vacate the judgment of foreclosure auction and sale of his home, located at 3510 Avenue L, Brooklyn, NY, and to void and reverse the transfer of title to said premises from Rafael Badalov, the successful bidder at the mentioned sale, to him and his wife, Marie Valentin. Mr. Valentin represents that he and his wife executed a Greenpoint mortgage on the subject property for $93,750.00 on December 16, 1992 on which a foreclosure action was commenced in 2006. In October of said year, a reinstatement letter was received by him calling for payment of $11,045.49 ($9,806.75 in loan defaults plus $1,238.74 in legal fees) to restore the mortgage, which sum he withdrew from his checking account and sent to plaintiff’s attorneys on November 18, 2006. Approximately six weeks later the check was returned to him, whereupon he and his wife consulted with an attorney who advised them that he was in contact with Greenpoint’s lawyer. Thereafter, he ceased receiving monthly mortgage statements, and thereafter received court documents which were turned over to the lawyer that he had retained whom he assumed was negotiating a payment plan with the bank until receiving notice that a foreclosure sale had taken place and the property deeded over to Rafael Badalov on or about June 13, 2008. "
 

Might we be seeing a legal malpractice case now that the house has been sold, and the owner won’t take his surplus funds? "In addition, counsel[ for the foreclosure sale purchaser] stresses the injustice of the current situation in that although his client acquired title to the subject premises on June 13, 2008, is making monthly payments of $2,620.00, the defendant and his family continue to occupy the premises without paying rent or use and occupancy despite the fact that surplus funds of $213,569.91 are due him from the auction sale
 

As yet another example of why legal malpractice is a difficult discipline, here is a case in which there was a failure to file a counterclaim,  The legal malpractice case ends in dismissal, because the Appellate Division determines that the counterclaim, even if made would have failed. Ginther v Rosenhoch ;2008 NY Slip Op 10292 ;Decided on December 31, 2008 ;Appellate Division, Fourth Department
 

"One necessary element of such a cause of action is that, " but for the [defendants’] negligence, the plaintiff[] would have been successful in the underlying action’ " (Oot v Arno, 275 AD2d 1023, 1023). Here, plaintiff alleges that defendants committed legal malpractice by, among other things, failing to assert a counterclaim in the underlying action, for recovery of premiums paid by plaintiff under a disability insurance policy. We note, however, that the Second Circuit affirmed the judgment of the District Court in favor of the plaintiff insurer in the underlying action on the sole ground that the claim for benefits made by defendant, the plaintiff herein, was untimely under the policy (Provident Life & Cas. Ins. Co. v Ginther, 51 Fed Appx 72). Thus, it cannot be said that, but for defendants’ negligence, plaintiff would have been successful on a counterclaim for recovery of premiums in the underlying action (see Oot, 275 AD2d 1023).
 

The matter of Chen v. Mt. Sinai was handled by attorney Steven F. Goldman, and settled just after depositions for $ 2.4 million.  Mt. Sinai was represented by Martin Clearwater & Bell, a premiere NY med-mal defense firm.  One would think that was good news for Mr. Goldman.  However, he ends up, after a Second Circuit decision, with no fee at all.  Legal Malpractice litigation might follow had he garnered a fee.  It might still if one scrutinizes the question of whether sufficient provision was made for a severely injured child. From the opinion: "The circuit noted that Mr. Goldman provided no real assistance to Judge Korman in his effort to determine whether the settlement was reasonable."Equally disturbing, the record suggests that Goldman himself had made only limited inquiries into David’s condition and the nature and extent of David’s future medical needs,"

Law.Com writes: "A federal judge acted within his authority when he denied all fees to a lawyer who won a $2.4 million medical malpractice case but who failed to investigate the future needs of a child disabled at birth and overcharged his client, a federal appeals court has ruled.

The U.S. Court of Appeals for the Second Circuit on Monday upheld the discretion of Eastern District Judge Edward Korman to refuse Steven F. Goldman’s application for $388,000 in fees.

Mr. Goldman obtained a settlement with the Mt. Sinai-NYU Medical Center Health Systems, NYU Downtown Hospital and the doctors involved. He then filed a stipulation of settlement and infant compromise order directing that he be paid $408,000 in fees and $20,000 in expenses, and that Ms. Chen be paid $250,000 for her loss of services claim, and $1.7 million as trustee for her son’s special needs trust.

But Judge Korman said he was unable to analyze the reasonableness of the settlement because Mr. Goldman failed to provide documentation for his fees and for David’s current medical condition and a projection of his expenses for future medical care.

Saying the attorney’s information was "totally unhelpful," the judge appointed a special master, attorney Steven North, who was told by Mr. Goldman that he had applied the sliding scale fee system set forth in New York Judiciary Law §474-a for medical malpractice compensation.

When Mr. North inquired as to the fee, Mr. Goldman claimed he had miscalculated it under the sliding scale, and it was actually $388,000."
 

Law.Com reports [as does the BLT Blog] that a legal malpractice case by Blackwater Security Consulting has been dismissed, now for the second time against Wiley Rein.    The legal malpractice case arises from the horrible death of Blackwater employees in Falugia, Iraq.

The fact of deaths in Iraq ending in US litigation brings to mind a recent speech which attributed the idea to Alexis de Tocqueville that all serious issues in the US ultimately end in courts.  If it ends in court, look for legal malpractice litigation to follow.

"On Dec. 29, Judge Jennifer Anderson of D.C. Superior Court dismissed the $30 million malpractice suit brought against the firm by Blackwater Security Consulting on summary judgment. She’s the second judge to throw out the case since it was filed last January.

"They have the right to ask more judges to look at it," says Zuckerman Spaeder partner Mark Foster, who represents Wiley Rein in the matter. But if Blackwater’s lawyer, Barry Nace of Paulson & Nace, chooses to do so, Foster says, "I think he’d be wasting his time." (Nace is on overseas travel and could not immediately be reached for comment.)

Blackwater alleged that Wiley botched its defense of the security contractor in a wrongful death case brought on behalf of four Blackwater guards killed in Iraq in 2004. Blackwater claimed the suit would have been dismissed if it had been heard in federal court, instead of in a North Carolina trial court. Blackwater said the Wiley lawyers failed to get a venue change because they didn’t invoke the federal officer removal statute, which grants federal jurisdiction to claims involving federal officers."