"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. "

Plaintiff sued his former criminal defense attorney because the attorney did not perfect an appeal.  So far, so good.  What followed shows how difficult litigation can be, and in how many ways a good case can go awry.  Consider, for example, whether there could be a legal malpractice case against the attorney. The answer is probably no, because plaintiff cannot demonstrate "innocence" or "exoneration" and this is an action against a criminal defense attorney.

But this was an action in contract for not filing the appeal.  The attorney died some months prior to the summons and complaint being "served."  What follows is a several year long exercise in wasted time and money for everyone.

The case is Marte v Graber , 2008 NY Slip Op 08552 , Decided on November 13, 2008 , Appellate Division, First Department.  "Because there simply is no precedent nor any support in New York’s Civil Practice Law and Rules for a court obtaining jurisdiction over an action "commenced" three months after the death of the individual named as the sole defendant, we find that the order appealed from is a [*2]nullity. The complaint should have been dismissed by the motion court as a nullity when the putative plaintiff, having filed a summons and complaint, discovered that the named defendant had died before the filing. As it is, this matter arrives before this Court as a result of a volume of errors rarely seen in this Department, and which are set forth below, seriatim"
 

"In or around July 2005, Amin Marte, incarcerated and acting pro se, filed an unsigned, undated summons and complaint alleging legal malpractice by attorney Herman Graber. Thereafter, Marte discovered that Graber had died on April 2, 2005, approximately three months before the filing of the summons and complaint. Thus the action from its inception was a nullity since it is well established that the dead cannot be sued. See Jordan v. City of New York, 23 AD3d 436, 437, 807 N.Y.S.2d 595, 597 (2d Dept. 2005)("party may not commence a legal action or proceeding against a dead person, but must instead name the personal
representative of the decedent’s estate"); see also Arbelaez v. Chun Kuei Wu, 18 AD3d 583, 795 N.Y.S.2d 327 (2nd Dept. 2005); Laurenti v. Teatom, 210 A.D.2d 300, 301, 619 N.Y.S.2d 754, 755 (2nd Dept. 1994)[FN1]. "

Judges retire or don’t stand for re-election, and then look for a new job.  That’s expected and no one is surprised when they surface as a partner in biglaw, or in a prestigious local firm.  This story borders on the extreme.Charles Toutant of the New Jersey Law Journal reports:

"Lawyers who engaged a retiring judge in discussions about a future business relationship while he was ruling in one of their cases have been sued for damages — specifically, the other party’s attorney fees.

The suit, just filed in Morris County, N.J., is the aftermath of the New Jersey Supreme Court’s September ruling in Denike v. Cupo, A-61-07, which upended a commercial suit judgment based on a perceived appearance of impropriety.

The justices found Gerald Escala, a Bergen County Superior Court judge nearing retirement, created an appearance of impropriety by talking about a job offer with a Hackensack, N.J., law firm while winding up the dispute, in which the firm represented one of the parties.

Now the other party, Michael Cupo, is suing Herten, Burstein, Sheridan, Cevasco, Bottinelli, Litt & Harz and partner Thomas Herten, claiming the firm’s actions amounted to professional negligence and have injured him in the pocketbook.

According to court papers, Escala issued a final decision in the underlying case on Jan. 23, 2006, ordering Denike to pay Cupo the $731,682. The next day, Herten visited the judge’s chambers, inquired about his retirement plans and asked whether he would consider joining Herten Berstein in some capacity. Escala outlined the type of firm relationship he was contemplating. Herten discussed the proposed relationship with his partners on Jan. 25 and told Escala they would need a few days to analyze it.

On Jan. 30, Herten received from Escala by mail an order with terms that seemed inconsistent with the judge’s prior decision. Herten submitted an alternate form of order, which the judge signed on Feb. 1. The same day, Herten told Escala the firm’s analysis of the proposed relationship was not yet completed.

On Feb. 3, Herten visited Escala in chambers and the two agreed to a relationship in principle, with the financial terms to be worked out later. That night, Escala announced at a retirement dinner, attended by his former law clerks and staff, that he was joining the firm. He came aboard Feb. 27
"”Cupo spent over $250,000 to have his case against Lawrence Denike tried to conclusion and now as a direct result of the actions of Thomas J. Herten, Esq., and the Defendant law firm of Herten, Burstein, Sheridan, Cevasco, Bottinelli, Litt & Harz, LLC, he must spend additional funds for the retrial," reads the complaint in Cupo v. Herten.""