Reading this case, in which there is an ancillary legal malpractice case, reminded us of the ubiquitousnature of legal malpractice.  This case, ELIOT I. BERNSTEIN, et al., Plaintiffs, – against – STATE OF NEW YORK, et al., Defendants.07 Civ. 11196 (SAS);  UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK  2008 U.S. Dist. LEXIS 61269August 8, 2008, Decided   August 8, 2008, Filed  makes for fascinating reading.  Just look how it starts:
 

Plaintiff: "This action presents a dramatic story of intrigue, car bombing, conspiracy, video technology, and murder. In short, plaintiffs allege that hundreds of defendants engaged in a massive conspiracy to violate their civil rights and, in the process, contributed to the Enron bankruptcy and the presidency of George W. Bush. In plaintiffs’ words:
Plaintiffs depict a conspiratorial pattern of fraud, deceit, and misrepresentation, that runs so wide and so deep, that it tears at the very fabric, and becomes the litmus test, of what has come to be known as free commerce through inventors’ rights and due process in this country, and in that the circumstances involve inventors’ rights tears at the very fabric of the Democracy protected under the Constitution of the United States."

Defendants: " For many years, pro se Plaintiffs Eliot I. Bernstein and Plaintiff Stephen Lamont have engaged in a defamatory and harassing campaign . . . alleging an immense global conspiracy . . . . Although largely unintelligible, the  [*3] [Amended Complaint] purports to describe a fantastic conspiracy among members of the legal profession, judges and government officials and private individuals and businesses to deprive plaintiffs of what they describe as their "holy grail" technologies"

We often remark that legal malpractice may be found everywhere, and in many an unusual circumstance.  The "Big Dig?"  Sure.  Here is a story from NY Lawyer about a whistle blower whose case was overlooked:

"A would-be whistle blower is suing Washington-based firm Phillips & Cohen in the U.S. Court for the District of Massachusetts for allegedly failing to pursue his false claims case against a contractor to the state’s massive "Big Dig" highway project.

According to the lawsuit for legal malpractice and breach of contract, the plaintiff claimed that he entered into a contract with Phillips & Cohen and attorney Peter W. Chatfield around June 2000. The plaintiff alleged that the firm failed to pursue his case for several years, also that he "did not discover that he had suffered any damages or losses resulting" from Phillips & Cohen’s lack of action until September 2006. Johnston v. Chatfield, No. 1:08-cv-11219-WGY (D. Mass.)

The plaintiff is a former employee of asphalt and concrete supply company Aggregate Industries Northeast Region Inc.

In July 2007, the company pleaded guilty and agreed to pay $50 million to settle criminal and civil charges related to a fraudulent scheme involving concrete. Aggregate agreed to provide up to $75 million in insurance coverage for maintenance problems related to the scheme. "

Matrimonial law is rife with questions of legal malpractice.  As in most spheres of the law, settlements take place in the majority of cases.  The general rule in legal malpractice is that one may sue the attorney after a settlement if the settlement was "effectively compelled" by the actions of the attorney.  Here is a case which seem to have arisen after the attorney sued for fees.Steven L. Levitt & Assoc., P.C. v Balkin ;2008 NY Slip Op 06640 Decided on August 19, 2008 Appellate Division, Second Department .
 

"The Supreme Court should have denied that branch of the motion of the plaintiff/counterclaim defendant and the additional counterclaim defendant (hereinafter together the respondents) which was for summary judgment dismissing the appellants’ first counterclaim alleging legal malpractice, based upon allegations that the respondents misrepresented the scope of the oral stipulation of settlement in the related civil action, and that the settlement of the related civil action was not knowingly and voluntarily made. The respondents made a prima facie showing of entitlement to judgment as a matter of law by submitting evidentiary proof, in the form of the transcript of the aforementioned oral stipulation (see Pacella v Whiteman Osterman & Hanna, 14 AD3d 545; Malarkey v Piel, 7 AD3d 681; Laruccia v Forchelli, Curto, Schwartz, Mineo, Carlino & Cohn, 295 AD2d 321). In response, the appellants raised a triable issue of fact as to whether or not they in fact voluntarily and knowingly entered into the terms of the stipulation, specifically with respect to Ronald’s receipt of a credit in the sum of only $500,000, rather than in the sum of $937,000, from Karen’s share of her equitable distribution award. The appellants raised a triable issue of fact by showing that Ronald, in response to a question posed by the court during the proceeding in which the stipulation was placed on the record, changed his response from "no" to "yes," when asked by the court if he understood that it would "not entertain any setting aside of the [settlement] without a showing of extreme circumstances." Ronald explained, in an affidavit, that he changed his answer at the explicit instruction of his attorney, Steven L. Levitt, the plaintiff’s principal. This change in his answer was allegedly based upon statements in the record that the settlement of the related civil action would "be effective as of the date of execution of the documents," and not the date of the court appearance. Ronald averred that he understood that "[t]he formal stipulation of settlement" would reflect his attorney’s representation to him that the misstated sum of $500,000 was to be corrected to $937,000, that the correction would be worked out when the stipulation was put on paper, and that "[i]t would all be fixed’ later."

Continue Reading Legal Malpractice and Compelled Settlements

Forget about the Kentucky statute of limitations issue [although the discovery v. mistake date which starts the statute running is important here in NY].  Focus on the bad luck and the series of mistakes which take place in this poor plaintiff’s case discussed in the Kentucky Court Report:

"Lane appeals TC’s grant of summary judgment to Hugh Montgomery Richards on her legal malpractice claim holding that it was not filed within the one-year statate of limitations. Lane retained Richards in April 1998 to represent her on a federal court action against the Bell County School Board. This action was subsequently dismissed by the federal court on February 11, 2002. Lane then retained another attorney, H. Wayne Roberts, to handle her appeal. The appeal was also dismissed by the Sixth Circuit Court of Appeals on August 12, 2003. By letter dated September 12, 2003, Attorney Roberts advised Lane of the dismissal and his unwillingness to further appeal to the US Supreme Court, but did correctly advise her that she had 90 days from the dismissal date to file a writ. Roberts also informed Lane that in his opinion she had a malpractice claim against Attorney Richards, and conservatively stated that she had 1 year from August 12, 2003 in which to file such a claim. Lane then retained yet another attorney, Thomas Grady, to file the writ with the US Supreme Court in October 2003, and Attorney Grady verbally advised Lane that the writ had been timely filed. While not hearing back for some months, Lane wrote to Grady on July 28, 2004 inquiring about the writ status. In response, one of the partners in Grady’s firm responded by letter dated December 28, 2004 advising Lane that Grady had been fired from the firm and more importantly, that he had prepared the writ but never filed it with the Supreme Court. Lane then filed this legal malpractice claim on November 3, 2005."
 

Legal malpractice sometimes seems to be the language franca in law news. It can show up in any setting.  Here is a most unusual story from Law.com [link  unavailable]:

"A legal malpractice lawsuit against Baker, Donelson, Bearman Caldwell & Berkowitz stemming from a case involving a 6-ton marble sculpture of Jesus Christ’s face may proceed to trial.

The Court of Appeals of Tennessee ruled Aug. 15 that the lower court erred when it threw out two of the former client’s theories for malpractice and granted a final judgment to the plaintiff on a third theory. The decision remanded the case back to the lower court for trial.

The former client is Christus Gardens, a tourist attraction and gift shop in Gatlinburg, Tenn. It sued Baker Donelson for its alleged failure to file an appeal on time in a copyright infringement lawsuit that Christus Gardens was defending.

Christus Gardens lost the infringement case brought by the copyright owner of "Miracle Face," a giant sculpture resembling a burial stone that served as the main attraction at Christus Gardens.

Self-described as "America’s No. 1 Religious Attraction," the park closed in January, according to its Web site.

The owner of the "Miracle Face" copyright sued Christus Garden in federal court after it began selling in its gift shop miniature versions of the sculpture created by other companies. Those companies had used the copyrighted sculpture to create a mold for the smaller items.

The federal district court found Christus Gardens liable for $100,000. "

Huber v. Taylor is the case.  Here in this extensive report from Litigation and Trial Blog is the full story of a legal malpractice/disgorgement case and its appeals.

"The prior opinion, Huber v. Taylor, 469 F.3d 67 (3d Cir. 2006), was one of the more important recent opinions for "lawyer’s lawyers" in the Third Circuit. The case is also a great example of how the paperwork these cases, e.g. attorney malpractice or disputes between lawyers, can quickly mushroom, and why they get so expensive.

Most importantly, it shows just how far the Third Circuit (and I’d say most appellate courts, federal or state) is willing to go to police the professional by enabling clients to recover from attorneys.

Let’s start with the facts, as recounted by the second appeal:

Plaintiffs, all of whom have asbestosis, were previously represented by Defendants in asbestos personal injury actions in Mississippi state court. Asserting multiple claims on behalf of themselves and a putative class of asbestosis victims, Plaintiffs alleged that Defendants failed to disclose both the material terms of settlement offers as well as the fee-sharing arrangements among co-counsel during the course of the Mississippi litigation. They also alleged, among other things, that Defendants (1) distributed less of the settlement funds–totaling hundreds of millions of dollars–to them than to other similarly situated clients, all to the benefit of Defendants; and (2) charged expenses that were inflated, inappropriate, and, in some instances, fictitious. Plaintiffs asked for compensatory damages, disgorgement of attorneys’ fees, as well as punitive damages."

One of the more interesting aspects of legal malpractice litigation is the ferocity with which defendant attorneys will employ in their defense…especially when contrasted with the particulars of plaintiff’s complaint…usually that the attorneys were way below lackluster when they were prosecuting the underlying case.

Here is an example from the MassTortDefense blog.

"A legal malpractice case is the somewhat surprising setting for an interesting Daubert toxic tort opinion, but we found one. Young, et al. v. Burton, et al, 2008 WL 2810237 (D.D.C. 7/22/08).

Plaintiffs sued a law firm for allegedly failing to file a timely personal injury lawsuit for their alleged mold-induced injuries. The lawsuit would have sought recovery from a landlord for damages suffered by plaintiffs allegedly as a result of exposure to toxic mold while residing in a DC apartment building. In order to succeed on their legal malpractice claim, plaintiffs needed to show their underlying claim was meritorious. Thus, plaintiffs needed admissible expert testimony as to the cause, nature, and extent of their injuries.

Defendants moved to exclude the expert’s testimony, arguing that his opinions were not based on a reliable methodology.

Following a Daubert hearing, the Court concluded that the diagnosis of plaintiffs, as well as the proffered opinions relating to general and specific causation, were not sufficiently grounded in scientifically valid principles and methods to satisfy Daubert."

It’s all over the law news today, and here is NY Lawyer’s report on the Kirkland Ellis patent legal malpractice case in Illinois:

"In an Illinois state court filing last week, Kirkland & Ellis is being sued for legal malpractice by a former client that blames the law firm for the loss of a patent case that cost the company $18.75 million.

Magnetek Inc., a Menomonee Falls, Wis.-based maker of digital power and motion-control systems, filed the lawsuit against Kirkland on Aug. 14 in the Circuit Court of Cook County. Magnetek v. Kirkland, No. 2008L008970. The company alleges that the law firm failed to investigate and discover prior art and misconduct related to the patent that was the focus of a lawsuit brought by Ole K. Nilssen in the U.S. District Court for the Northern District of Illinois against Magnetek in 1998. Nilssen v. Magnetek, No. 98-C2229.

Kirkland spokeswoman Kate Kortenkamp declined to comment on the case or to say which law firm her firm will hire to handle the case. Magnetek has hired Mitchell Katten of Chicago-based Katten & Temple, a three-attorney firm that was formed in April, and Martin Washton, a former Gibson, Dunn & Crutcher attorney who is now at Los Angeles-based Towle, Denison, Smith & Tavera. "