A common law retaining lien, known also as a "general possessory lien" entitles the outgoing attorney to "retain all papers, securities, or money belonging to the client" that came into the attorney’s possession in the course of representation, as security for payment of attorney’s fees" 

A retaining lien arises from Judiciary Law  475  and is a statutory lien upon service of a notice of lien, which attaches to the case papers, and allows the attorney to retain as in the "general possessory" lien.   It is enforceable only by retention of the items themselves and is lost if the file or documents are no longer in the attorney’s possession.

A charging line similarly arises from Judiciary Law § 475, and allows for a "statutory lien upon service of a notice of lien, which attaches to any recovery and thus secures the attorney’s right to compensation." 

All of these liens are extant so that the monies or securities held by the attorney are kept available for an attorney fee hearing.  That hearing will be held to determine the amount of fees, based upon a quantum meruit determination.

In this legal malpractice case, Provenzano v. Pearlman [subscription], recently decided in EDNY, plaintiff was struck in the head by an errant television camera, while on the set of a news TV show.  She went to trial in Supreme Kings and lost.  Now, she sues her attorneys in EDNY. 

Defendants, who represented themselves in the Legal Malpractice case, win summary judgment, but not simply on the reflexive use of the Rosner v. Paley, 65 N.Y.2d 736, 481 N.E.2d 553, 554, 492 N.Y.S.2d 13 (N.Y. 1985)) doctrine.  To review, Rosner stands for the proposition that an  "attorney cannot be held liable for malpractice for reasonable discretion exercised during the course of a litigation."

Often, that is the end of the analysis, and judgment is granted.  The counter-argument is that whether the choice [discretion] was reasonable is a question of fact for the jury to determine, and that in fact the decision was unreasonable, both objectively and subjectively.

Here, Judge Townes combed through the evidence presented by both sides, and determined that plaintiff came up short.  "Even assuming that the law firm was negligent in failing to retain a design expert, Provenzano has not provided evidence sufficient for a rational factfinder to conclude that, but for the alleged negligence, Provenzano would have prevailed in the underlying suit. Dr. Allen does not provide any basis whatsoever for a legitimate inference by the factfinder that the unprompted camera movement was caused by a design defect rather than negligent repairs by ABC,"

"Even assuming that the law firm was negligent in failing to call as witnesses the designers of the camera system, Provenzano has not provided evidence sufficient for a rational factfinder to conclude that, but for the alleged negligence, Provenzano would have prevailed in the underlying suit. Provenzano does not offer any specific testimony that the designers could have provided"

"Even assuming that the law firm was negligent in failing to develop further evidence of erratic camera movement, Provenzano has not provided evidence sufficient for a rational factfinder to conclude that, but for the alleged negligence, Provenzano would have prevailed in the underlying suit. "

An unintentionally amusing NY Law Journal article cataloged the social and professional prominence of this Suffolk law firm.  When it was sued in Nassau, it moved to change venue to Suffolk.  Supreme Court approved the transfer of venue.  Per the CPLR one might move in the county where the action is brought or in the county where the action is hoped to be moved.  Each choice has its benefits and detriments.  Here, they moved in Nassau and asked for it to be moved to Suffolk.

An excerpt from the NYLJ article by Vesselin Mitev shows the web of relationships:

"In June, the firm moved to change venue to Suffolk County. The trust opposed the motion, arguing that "it could not obtain a fair and impartial trial" there. The trust pointed out that Mr. Russo’s father-in-law, identified in court papers as William L. Underwood Jr., is a retired Supreme Court justice. Hertha Trotto, also identified in court papers, is a sitting District Court judge and the mother of an associate in Mr. Russo’s firm, according to the trust.

The trust also claimed Mr. Russo is "politically active" as a former town attorney for the Village of Bellport and a former deputy supervisor for the Town of Brookhaven.

Trustee Nancy Gallipoli-Barrie claimed in court papers that Mr. Russo "has a friendship with at least one of the two Commercial Division Justices that this matter would be assigned to if transferred to Suffolk." Ms. Gallipoli-Barrie also expressed her concern over an alleged friendship between Mr. Russo and R.D. Best’s attorney, Richard I. Scheyer of Scheyer & Jellenik in Nesconset.

According to Ms. Gallipoli-Barrie, Mr. Scheyer had told Mr. Russo that R.D. Best’s principal, Robert Dalcamo, was an undercover FBI agent and was to continue with the operation, including accepting deliveries from other areas. However, Mr. Russo had allegedly "failed to inform the Trust of such and failed to stop R.D. Best’s continued dumping." "
 

In this case, plaintiff counterclaimed for legal malpractice in the face of a claim for attorney fees.  Hass & Gottlieb v Sook Hi Lee ,2008 NY Slip Op 08015 ,Appellate Division, First Department

While not specifically stated, it appears that there were procedural bumps along the way.  Not filing for a jury trial, defendant was not permitted to ask for one later.  More intreguing is the AD’s statement:  "The court was within its discretion in refusing to recuse itself. The judge’s remarks complained of were not ad hominem attacks, but observations of defendant’s credibility and conduct in three related cases."

"Even if plaintiff, in this action for attorney’s fees, had been negligent and responsible for defendant failing to obtain a ruling fixing the effective date of her interest in a closely held corporation, defendant failed to show that she suffered any actual harm as a result (IGEN, Inc. v White, 250 AD2d 463 [1998], lv denied 92 NY2d 818 [1998]). There was no evidence of dividends paid out that defendant was unable to collect. Furthermore, in the six years since the underlying judgment, defendant took no steps to bring additional proceedings to cure the alleged defect, so her claims of damages for extra expenses and costs were purely speculative. Similarly, defendant failed to raise any grounds for challenging the trial court’s dismissal, following a six-day nonjury trial, of her claim for the return of documents. "

Continue Reading Plaintiff Loses Both Ends of A Legal Malpractice Case

Besides the garden or varietal political questions over whom should be president, and even the more interesting question of whether a person who was born in a territory rather than a state is eligible to become president [Hawaii  became the 50th state in 1959 and Obama was born in 1961, McCain was born at the Coco Solo Naval Air Station the Panama Canal Zone] comes this law suit by today’s subject, Phil Berg.  Our tie-in from The Martini Shot is the accompanying legal malpractice suit against him:

Lawyer Slapped With $10K in Sanctions for ‘Laundry List of Unethical Actions’
Shannon P. Duffy
The Legal Intelligencer
July 25, 2005

Finding that a Pennsylvania lawyer had committed a "laundry list of unethical actions," a federal judge has imposed more than $10,000 in sanctions and ordered the lawyer to complete six hours of ethics training.

U.S. District Judge J. Curtis Joyner’s 10-page opinion in Holsworth v. Berg is packed with criticism of the conduct of attorney Philip Berg of Lafayette Hill, Pa.

"Other attorneys should look to Mr. Berg’s actions as a blueprint for what not to do when attempting to effectively and honorably perform the duties of the legal profession," Joyner wrote.

"This court has grown weary of Mr. Berg’s continuous and brazen disrespect toward this court and his own clients. Mr. Berg’s actions … are an enormous waste of judicial time and resources that this court cannot, in good conscience, allow to go unpunished," Joyner wrote.

In the suit, Berg is accused of legal malpractice by former clients who claim his failure to respond to an ERISA claim against them led to a default judgment.

But the sanctions against Berg stem from his decision to file a third-party counterclaim of fraud against a pension fund that had sued his former clients, according to court papers.

Joyner blasted Berg for filing the fraud claim, calling it an "irresponsible decision" because the claim was "utterly barren of any scintilla of legal principles."

In the ERISA suit, Berg’s former clients — Richard Holsworth and his company, Richard’s General Contracting — were sued by a group of pension funds led by the Carpenters Health and Welfare Fund of Philadelphia and Vicinity.

Carpenters Health claimed that Holsworth and his company had failed to make required payment of fringe benefit contributions.

According to court papers, Joyner found that Berg "neglected to file a response to [Carpenter Health’s] claim or provide any legal defense whatsoever for his client."

Even after a default judgment was entered against Holsworth, Joyner found that Berg "remained silent."In April 2002 — two months after the default judgment was granted and 11 months after the suit was first filed — Joyner found that Berg "broke his silence" by filing a petition to strike the judgment or to open the default judgment.

Berg’s motion was rejected and a default judgment of more than $5,300 was entered against his clients.The judgment swelled to more than $10,000 when Carpenters Health later successfully moved for a supplemental judgment to recover more than $4,700 in attorney fees for its efforts in responding to Berg’s untimely motions.

Holsworth and his wife later filed a legal malpractice suit against Berg in the Philadelphia County Court of Common Pleas, alleging that Berg negligently failed to represent them in the Carpenters Health case.

A year later, in February 2005, Berg moved to join Carpenters Health as a third-party defendant in the malpractice suit, demanding more than $20,000 in damages.

In his counterclaim, Berg alleged that the ERISA suit filed by Carpenters Health in 2001, which led to the malpractice claim against him, was "a fraud upon the court and a fraudulent taking from the Holsworths."

Carpenter Health’s lawyers removed the case to federal court and filed a motion to dismiss the claim.Joyner agreed, finding that Berg’s fraud claim was "frivolous" and was motivated by an intent "to harass Carpenters Health and the Holsworths, as well as to delay and disrupt the administration of justice."

The claim was fatally flawed, Joyner found, because Berg had no standing to bring suit against Carpenters Health and had "failed to conduct even a minimally reasonable inquiry before filing his complaint."

FROM THE TIMES HERALD NEWSPAPER 8-25-08

Born in the U.S.A.?
By: KEITH PHUCAS, Times Herald Staff
08/25/2008
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PHILADELPHIA – A Lafayette Hill attorney filed a lawsuit in federal court Thursday challenging Sen. Barack Obama’s claim to United States citizenship. The action seeks to remove the Democratic candidate from the November ballot.
To be eligible to serve as U.S. president, a person must be born in this country. According to Obama’s birth certificate, which his campaign posted on its Internet site in June to quell rumors that he is foreign born, the Illinois senator was born in Hawaii on Aug. 6, 1961.
On Thursday, Philip Berg filed a temporary restraining order in federal court to bar Obama from running for president, claiming the Democratic candidate was actually born in Africa.
"We really don’t believe he was born in Hawaii," Berg said. "We think he was born in Kenya."
The presidential candidate’s father, Barack Obama Sr., was born and raised in a small village in Kenya, according to Obama’s campaign Web site.
Berg’s suit claims the senator’s grandmother, brother and sister, who live in Kenya, believe they were present during Obama’s birth in the African country.
Obama’s mother, Ann Dunham, grew up in Kansas, and his parents met at the University of Hawaii when Dunham was a student there, according to the Obama campaign.
Eventually, Obama’s father returned to Kenya, and his son grew up in Hawaii with his mother and for a few years in Indonesia after Dunham married an Indonesian man, Lolo Soetoro. Also, Obama lived with his maternal grandparents in Hawaii.
"If he was born in Hawaii, and he was adopted in Indonesia by Lolo Soetoro, (Obama) would lose his citizenship," Berg said.
The Obama campaign has a special section on its Web site, "Fight the Smears," that debunks the birth certificate story and other reports that have circulated about him during the campaign.
"It’s part of a smear campaign," said an Obama campaign volunteer who identified herself as Rachel. "There are just so many lies out there."
The lawsuit claims three "independent" document forensic experts performed extensive tests on the digitally-scanned image of Obama’s "Certificate of Live Birth" posted on the campaign’s site and found the document to be "a forgery."
Jerome Corsi, author of the book, "The Obama Nation: Leftist Politics and the Cult of Personality," has also deemed the birth certificate phony, according to The Annenberg Political Fact Check, www.FactCheck.org.
The Annenberg Political Fact Check, a project of the Annenberg Public Policy Center of the University of Pennsylvania, aims to expose deception and confusion in U.S. politics.
Recently, FactCheck.org staffers "touched, examined and photographed" the original birth certificate kept at the Obama campaign headquarters in Chicago and concluded the document is genuine.
"The evidence is clear: Barack Obama was born in the U.S.A.," FactCheck.org staffers concluded.
Sean Smith, Obama’s Pennsylvania communications director, was contacted Friday about the suit but declined comment.
 

The elements of legal malpractice are well settled, as the Appellate Divisions write.  One of the triumvirate is proximate cause.  We’ve written in the past about the difference between "the" proximate cause and "a" proximate cause, see: Barnett v. Schwartz, 47 AD3d 197 (2d Dept,20070

Here is a case  Silberman v Reisman, Abramson, P.C. ,2008 NY Slip Op 07958 ,Appellate Division, First Department  in which plaintiff probably lost her worker’s compensation case on the basis that she had an intervening accident.  Her attorneys did not obtain her medical records, and lost the motion.  From a reading of this decision, it seems that the legal malpractice attorneys did not themselves obtain a copy of the medical records in question.
 

"While an issue of fact exists as to whether defendants were negligent in failing to obtain plaintiff’s medical records relating to the intervening 1990 accident, plaintiff adduces no evidence that but for such negligence the Board would not have rejected her reopened claim for the 1983 accident (see Russo v Feder, Kaszovitz, Isaacson, Weber, Skala & Bass, 301 AD2d 63, 67 [2002]). There is simply nothing in the record to indicate the content of the medical records in question, and whether, as plaintiff claims, they would have shown that the intervening accident had no effect on her claimed present inability to work. Failure to demonstrate an issue of fact as to proximate cause requires dismissal of a legal malpractice action regardless of whether the attorney was negligent (id.). We have considered plaintiff’s other arguments, including that defendants’ failure to obtain the medical records should be sanctioned as a form of spoliation, and find them unavailing

New York, being in the northeast , has a rich history of snow & ice cases.  A whole series of rules have arisen which accompany and inform the law of accidents on snow & ice.  As one example, the precipitation must have already ended for a case to be viable. The difference between misfeasance and nonfeasance also applies.  Here in this legal malpractice case Teodorescu v Resnick & Binder, P.C. ,2008 NY Slip Op 07904 ,Appellate Division, Second Department 
 the court lays out a series of rules for snow & ice cases, for legal malpractice and for summary judgment.

Legal Malpractice:  "To prevail in an action to recover damages for legal malpractice, a plaintiff must establish that the defendant 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 that duty proximately caused the plaintiff to sustain actual and ascertainable damages (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442). To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action, or would not have incurred any damages but for the attorney’s negligence (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 442; Davis v Klein, 88 NY2d 1008, 1009-1010; Lamanna v Pearson & Shapiro, 43 AD3d 1111; Cohen v Wallace & Minchenberg, 39 AD3d 691). A defendant moving for summary judgment in a legal malpractice action must present admissible evidence that the plaintiff cannot prove at least one of the essential elements of a legal malpractice cause of action (see Levy v Greenberg, 19 AD3d 462; Crawford v McBride, 303 AD2d 442). "

Snow & Ice: "To make out a prima facie case of negligence in a slip-and-fall case involving an accumulation of snow and ice, the plaintiff must demonstrate that the defendant created the condition which caused the accident, or that it had actual or constructive notice thereof (see Voss v D & C Parking, 299 AD2d 346). To give rise to constructive notice, a defect must be visible and apparent, and exist for a sufficient length of time prior to the happening of an accident to permit the defendant to discover and remedy it (see Gordon v American Museum of Natural History, 67 NY2d 836; see also Chianese v Meier, 98 NY2d 270, 278). In order to prevail in the underlying action against the NYCHA on a theory of constructive notice, the plaintiff would have had to introduce evidence of the origin of the particular icy condition that caused her to fall (see Simmons v Metropolitan Life Ins Co., 84 NY2d 972; Ciaschi v Taughannock Constr., 204 AD2d 883). General awareness that snow and ice may be present is legally insufficient to constitute notice of the particular condition that caused the plaintiff’s fall (see Piacquadio v Recine Realty Corp., 84 NY2d 967; Gloria v MGM Emerald Enterprs., 298 AD2d 355). "

Summary Judgment: "In the instant case, the defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff would not have been successful in an action against the NYCHA on a theory of constructive notice. The defendant relied on the plaintiff’s deposition testimony, which was insufficient to support her claim that the icy patch where she slipped existed when she traversed that sidewalk the previous evening. The plaintiff could not point out the exact location of her fall other than that it was in the middle of the block in front of the George Washington Housing Project. In opposition to the defendant’s motion, the plaintiff failed to raise a triable issue of fact as to whether she could have prevailed against the NYCHA on a theory of constructive notice. The plaintiff offered only speculation that the ice on which she slipped had to have been a product of the prior snowfalls, which were not properly cleared. "

Court calendaring…being in court on all assigned conferences, motions, hearings, appearances , is the most frequent source of legal malpractice cases.  Right behind are the late filings, blown statutes, and missed deadlines for documents. 

Here, a big law managing clerk discusses a calendar system for a world wide law firm.  Its hard to believe that in their California office there was no system in place at all. "We began by focusing on our Palo Alto office, which did not have any system in place

"When it comes to errors and potential malpractice claims, court calendars represent one of the most likely areas where law firms can trip themselves up. Many firms, from the smaller boutiques to mega litigation operations, unknowingly expose themselves to date error and malpractice risk because of the way they oversee their court calendars.

In the most recent "Profile of Legal Malpractice Claims," the American Bar Association found that calendar- and deadline-related errors are the leading cause of legal malpractice claims. A total of 16.63 percent of those malpractice claims were due to the firm not knowing or not properly responding to the court calendar. Of those, 7.09 percent were for failure to know/ascertain a deadline; 5.19 percent were for failure to calendar properly; and 4.35 percent were for failure to react to the calendar.

At my firm, it was concern over malpractice risk and exposure that led to a major undertaking — revamping the way that many of our U.S. offices manage their court calendars. Happily, we are also gaining firmwide efficiencies at the same time. White & Case has 37 offices in 25 countries with a total of 2,300 lawyers. In the United States, we have 770 attorneys in five offices, including our headquarters in New York."