In STEPHEN F. BRUMMER, , v THE BARNES FIRM, P.C., CELLINO & BARNES, P.C., STEPHEN E. BARNES, ROSS M. CELLINO, AND RICHARD J. BARNES, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT;2008 NY Slip Op 8831; 2008 N.Y. App. Div. LEXIS 8924 we see a discussion of legal malpractice cases centering on a failed appeal.  The rules are fundamentally different for legal malpractice cases centering on appeals and those centering on the underlying case.  One thing that is not mentioned by the court is that it remains a question of law and not a question of fact whether an appeal would succeed. Experts may not opine and no jury will be asked to answer this question; only the judge will answer it

Here, plaintiffs were defendants in the underlying case, and they sue their attorney for a failed appeal.  "Plaintiff commenced this action alleging that defendants committed legal malpractice by failing to take an appeal from an order granting the cross motion of the Town of Tonawanda (Town) for summary judgment dismissing the complaint against it in plaintiff’s underlying Labor Law action. We conclude that Supreme Court properly granted defendants’ motion for summary judgment dismissing the complaint in this legal malpractice action. ""Plaintiff failed to raise a triable issue of fact inasmuch as he "did not set forth the requisite factual allegations demonstrating that, but for defendants’ alleged negligence, there would have been a more favorable outcome in the underlying action" (Ellsworth v Foley, 24 AD3d 1239, lv denied 6 NY3d 712; see generally Williams v Kublick, 302 AD2d 961), i.e., he failed to raise an issue of fact whether he would have prevailed on an appeal with respect to the dismissal of the complaint in the underlying action against the Town (see Lagana v Willner, 267 AD2d 210; see also Senise v Mackasek, 227 AD2d 184, 185). Indeed, the record establishes that the Town was not liable under the Labor Law because it was not the owner of the property where plaintiff was working, nor was it an agent of the owner because it did [**3] not have the authority to supervise and control the work ."

Attorney A refers a case to Attorney B, and agree that they will share in a contingent fee between them.  Ethical issues aside, may Attorney A, who has not committed malpractice nor taken an active role in the case, be held responsible for Attorney B’s malpractice?

Rosenstrauss v Jacobs & Jacobs ;2008 NY Slip Op 08472 ;Decided on November 5, 2008
Appellate Division, Second Department  answers that question as follows:
 

"Moreover, the argument of the defendants Markovits & Markovits and Robert L. Markovits (hereinafter together the Markovits defendants), that they cannot be liable because they merely referred Purgess to the other defendants, is belied by the retainer agreement, in which the Markovits defendants agreed to share any contingency fee in the medical malpractice action. Accordingly, the Supreme Court properly denied the defendants’ separate motions for summary judgment dismissing the complaint. "  Here is more:
 

"Patricia J. Purgess retained the defendants to represent her in an underlying medical malpractice action, which she commenced on November 4, 1993. In an order dated March 20, 1996, the Supreme Court, Orange County, dismissed that action pursuant to CPLR 3404. The defendants neither moved to [*2]vacate that order nor perfected an appeal therefrom. Nearly 11 years thereafter, Purgess moved to vacate the aforementioned order of dismissal. In an order dated April 24, 2007, the Supreme Court denied her motion as barred by the doctrine of laches. In a companion appeal, this Court is affirming the order dated April 24, 2007 (see Rosenstrauss v Women’s Imaging Center of Orange County,AD3d [decided herewith]).

"In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession’ and that the attorney’s breach of this duty proximately caused [the] plaintiff to sustain actual and ascertainable damages"
 

"Turnabout is fair play"  This childhood aphorism describes the third-party practice in a newly reported case, 601 Realty Corp. v. Conway Farrell, Curtin & Kelly PC, NY Slip Op. 33076, from Supreme Court, Nassau County.  The case arises from a lead paint case, and features Conway Farrell’s attempt to third-party plaintiff”s personal attorney which fails.

During the trial, Conway Farrell was representing the landlords in a lead paint case.  They seemed to have worked out a stipulation which would have avoided apportionment of damages between the individuals and the Realty Corp, and limited it to the Corporation. The stipulation was never signed, and in retrospect, its form probably precluded its signing.

The stipulation called for the attorney, not the client to sign it, and in the stipulation there was a representation of no insurance.  Attorney says that he could not make such a representation, and that his client would not have wanted him to sign, anyway.

Conway Ferrell says that the failure to sign the stipulation was malpractice, and excuses them from liability.

The case cannot be uploaded to this site, so read it at its original NYS posting.

Criminal Law practitioners enjoy a blanket immunity for legal malpractice not permitted to any other field of law.  Briefly put, a convicted criminal defendant may not successfully sue his attorney unless he can demonstrate innocence or later exoneration.

Here is a case of an individual who pled to a counterfeiting [presumably handbags, ect, and not currency], and was then deported.  His legal malpractice case was wiped out across the board.

Yong Wong Park v Wolff & Samson, P.C.; 2008 NY Slip Op 09176 ;Decided on November 20, 2008 ; Appellate Division, First Department :
 

"Plaintiffs’ claim that defendants committed legal malpractice by advising plaintiff Yong Wong Park to plead guilty to a federal charge of trafficking in counterfeit goods without advising him of the immigration consequences of his guilty plea, or by giving him wrong legal advice about such consequences, is barred by Park’s undisturbed guilty plea (see Carmel v Lunney, 70 NY2d 169, 173 [1987]). We reject plaintiffs’ argument that innocence need not be alleged where, as here, the alleged malpractice related to a collateral matter (deportation) rather
than the core of the criminal action (see Biegen v Paul K. Rooney, P.C., 269 AD2d 264 [2000], lv denied 95 NY2d 761 [2000]; see also Casement v O’Neill, 28 AD3d 508 [2006] [guilty plea bars malpractice claim regardless of plaintiff’s subjective reasons for pleading guilty]). There are other deficiencies in the legal malpractice claim requiring its dismissal: it does not allege that "but for" defendants’ alleged malpractice Park would not have pleaded guilty (see Carmel, 70 NY2d at 173); and to the extent the claim is based on the allegation that defendants affirmatively gave Park wrong advice about the immigration consequences of a guilty plea, such allegation conflicts with, and is precluded by, contrary factual findings made in the federal proceedings in which Park sought to vacate his plea on the ground of ineffective assistance of counsel (see Siddiqi v Ober, Kaler, Grimes & Shriver, 224 AD2d 220 [1996], lv denied 88 NY2d 812 [1996]). "

Demonstrating the ancient rubric, "the enemy of my enemy is my friend" the case of Rosenstrauss v Women’s Imaging Ctr. of Orange County ;2008 NY Slip Op 08473 ; Decided on November 5, 2008 Appellate Division, Second Department    shows us how a procedural issue forces plaintiff to espouse the defense of the legal malpractice defendant attorneys, in order to save the legal malpractice case.  As we said yesterday, there is no lack of irony in legal malpractice,
 

Plaintiff was a medical malpractice plaintiff, and her case was marked off calendar when depositions stalled.  It was still pre-note of course, and was not restored within one year.  Remember that pre-note dismissals are different from post-note dismissals,

Plaintiff sues her attorneys for legal malpractice and they defend by saying that the dismissal was baseless.  They seem to have a point, especially under the Lopez v. Imperial Delivery Serv. (282 AD2d 190 case concerning pre-note dismissals,  so what is a legal malpractice plaintiff to do>

Here they chose to try to fix the med mal case. They did not succeed.  From the dissenting opinion:

"The procedural device of dismissing an action for delay in prosecution is a legislative creation, not a part of the court’s inherent power (see Airmont Homes v Town of Ramapo, 69 NY2d 901, citing Cohn v Borchard Affiliations, 25 NY2d 237). Indeed, it is well settled that a pre-note of issue action can only be dismissed for failure to prosecute if the preconditions contained in CPLR 3216 are met (see Baczkowski v Collins Constr. Co., 89 NY2d 499; Travis v Cuff, 28 AD3d 749; Hodge v New York City Tr. Auth., 273 AD2d 42). "CPLR 3216, as it now reads, is extremely forgiving of litigation delay. A court cannot dismiss an action for neglect to prosecute unless: at least one year has elapsed since joinder of issue; defendant has served on plaintiff a written demand to serve and file a note of issue within 90 days; and plaintiff has failed to serve and file a note of issue within the 90 day period (CPLR 3216[b])" (Baczkowski v Collins Constr. Co., 89 NY2d at 503). It is undisputed in this case that no demand to serve and file a note of issue within 90 days was ever served upon the plaintiff.

In my view, it is improper for the majority to obtain the prohibited result of dismissal of this action for neglect to prosecute despite the lack of compliance with CPLR 3216, merely by terming the rationale for the result as laches, particularly where, as here, the application of the doctrine of laches is contrary to established precedent (see Lopez v Imperial Delivery Serv., 282 AD2d 190). This action was improperly dismissed pursuant to CPLR 3404, and the conditions of CPLR 3216 were not met. As such, the plaintiff is entitled to have the March 20, 1996, dismissal of the medical malpractice action vacated and the action restored to the trial calendar. Therefore, I respectfully dissent. "

There is no lack of irony in legal malpractice litigation.  Because of the structure of the "case within a case" defendant attorney often takes on the defenses available in the underlying case.  So, plaintiff’s attorney sees defendant attorney loudly and heatedly making the very same arguments that were made in the underlying action with absolutely no cognitive dissonance.

Here is an example in SF Holdings Group, Inc. v Kramer Levin Naftalis & Frankel LLP ;
2008 NY Slip Op 08520 ; Decided on November 13, 2008 ; Appellate Division, First Department .
 

This was a fairly complicated transaction in which a plant in St. Thomas was left off the table.  Legal malpractice litigation ensued, and one defense was that plaintiff, a sophisticated business, knew that the plant was not part of the transaction.

Here is the interesting part.  The court held that being sophisticated, yet relying on the attorney is proper, and will not amount to a full defense to legal malpractice.  The attorney would argue that there can be no legal malpractice when the client understands the risks and the nature of the transaction.

The court held that such argument amounts to potential mitigation only. "Given the procedural context, the motion court correctly rejected Kramer Levin’s argument that plaintiffs, as a matter of law, were aware that St. Thomas was not working capital based on the merger agreement itself. Kramer Levin did not conclusively establish, for the purposes of plaintiffs’ alleged awareness, that the merger agreement on its face discloses that the St. Thomas facility was not included under the definition of working capital (see Held v Kaufman, 91 NY2d 425, 431-432 [1998]). Further, to the extent that Mehiel, a sophisticated businessman, executed the merger agreement on behalf of plaintiffs with full knowledge of its terms, "[a]ny negligence on the part of [the client] in reviewing the agreement is merely a factor to be assessed in mitigation of damages" (Mandel, Resnik & Kaiser, P.C. v E.I. Electronics, Inc., 41 AD3d 386, 388 [2007]

Whether attorney for Plaintiff or for defendant, each practitioner in the Legal Malpractice field has either a professional or personal interest in legal malpractice insurance.  No one, whether prosecuting or defending legal malpractice cases wants to lose or have coverage excluded, and attorneys do not want to have coverage lost for the defendants in a legal malpractice case.

Here is a blurb from McGuire Woods on prior knowledge exclusions in legal malpractice insurance:

"Professional liability and D&O insurers regularly rely on "prior knowledge exclusions" to restrict coverage. These exclusions apply if the insured knew, prior to commencement of the policy period, that the activity in which it was involved would result in a claim against it. Typically, cases involving prior knowledge exclusions turn on the extent of the insured’s knowledge of the risk of a claim and whether that knowledge is sufficient to bar coverage.

Recently, in Executive Risk Indemnity Inc. v. Pepper Hamilton LLP, 865 N.Y.S.2d 25, 2008 N.Y. App. Div. Lexis 6885 (N.Y. App. Div. Sep. 23, 2008), the New York Supreme Court, Appellate Division construed a "prior knowledge" exclusion very narrowly in a declaratory judgment action involving a dispute over coverage for alleged legal malpractice. The court held that in order to apply the exclusion to claims against a law firm based on the wrongful conduct of the firm’s client, the insurer must prove not only that the law firm had knowledge of its client’s misconduct, but also that the firm participated in the client’s wrongful conduct in such a way that it believed that it might be subject to liability for that conduct.

The coverage dispute arose from Pepper Hamilton’s representation of Student Finance Corporation, which financed student loans and then securitized and resold them to investors. In March 2002, Student Finance’s principal told a partner in the law firm that the company had been using its own reserve accounts to make forbearance payments for overdue loans. By covering up defaults, Student Finance allegedly made its securities more attractive to investors.
 

Worker is injured on the job by a paving machine.  Worker collects WC benefits from his employment.  Worker sues paving machine manufacturer in products liability, and his attorney blows the statute.  Worker succeeds in legal malpractice.  May WC carrier recoup benefits?

Had the case been tried as a products liability case [not legal malpractice] in NY, the answer would be yes, recoupment.  Here, in this Florida case, the answer is no. Here is the blurb from Risk & Insurance.com

"Case name:Columbia v. Brewer, No. 1D07-5658 (Fla. Dist. Ct. App. 10/22/08).

What it means: An injury suffered as a result of legal malpractice does not occur in the course of a claimant’s employment, and the defendants in a legal malpractice case are not third-party tortfeasors under Florida law. As a result, the claimant’s employer is not entitled to recoup the workers’ compensation benefits it has paid from the proceeds of the legal malpractice settlement. Instead, it may sue the third party that caused the claimant’s injuries if the claimant fails to do so within one year after the cause of action accrues. "