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. "

The outcome in this case is not unique; many legal malpractice cases are dismissed prior to trial, often on the basis that there is no "proximate cause" or "there is documentary evidence that plaintiff cannot prove the underlying case."  Terrance Wray, appellant, v Mallilo & Grossman, etc., respondent.SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT2008 NY Slip Op 6557; 2008 N.Y. App. Div. LEXIS 6403 is another example.  What the decision does not address is whether the attorney’s underlying representation led to the conclusion that there was no 240 or 241 case.

"Here, the defendant met its prima facie burden of establishing entitlement to judgment as a matter of law by demonstrating that the plaintiff would be unable to prove that, but for any negligence on its part, he would have prevailed in the underlying action to recover damages against [*2] the premises owner under the Labor Law §§ 240(1) and 241(6) causes of action. In opposition, the plaintiff failed to raise a triable issue of fact. In the underlying action, the Supreme Court determined that the facts and circumstances giving rise to the plaintiff’s accident were insufficient as a matter of law to sustain a claim under the Labor Law §§ 240(1) or 241(6). Accordingly, the plaintiff is collaterally estopped from relitigating those claims in the context of this legal malpractice [**3] action (see Sutton v Ezra, 224 AD2d 517, 638 N.Y.S.2d 148; Geraci v Bauman, Greene & Kunkis, 171 AD2d 454, 455, 567 N.Y.S.2d 36)."
 

One of the more fascinating aspects of legal malpractice is the large catchment area. That jargon, from psychology simply means that almost everyone uses attorneys, whether the largest CEO, or a hip hop magi zine employee who alleges sexual harassment.

Here, two employees of The Source were fired, and they sued.  Their attorneys Thompson Wigdor & Gilly started an action for them, and for one successful client, they also started a libel action.  She succeeded with a large verdict.

The second client was accused of faking breast cancer in order to avoid being terminated.  The attorneys did not start a libel action for her.  Now they are defendants, and a SDNY decision keeps them in the case.

"A Manhattan federal magistrate judge has ruled that a legal malpractice claim may proceed against a law firm for failing to bring defamation claims on behalf of a client in a high-profile sexual harassment and discrimination case.

Kenneth P. Thompson of New York-based Thompson Wigdor & Gilly represented Michelle Joyce and Kimberly Osorio in a 2005 suit filed against hip-hop magazine The Source. Osorio, the magazine’s former editor-in-chief, and Joyce, a former marketing executive, alleged pervasive sexual harassment and a hostile work environment.

The suit claimed discrimination, retaliation and wrongful discharge on behalf of both women but defamation only on behalf of Osorio, based on an interview in which The Source co-owner Raymond Scott said she had tried to extort the magazine.

Joyce’s claims were dismissed by Southern District of New York Judge Jed S. Rakoff in August 2006. That October, a jury awarded Osorio $8 million, of which $3.5 million was for the defamation claim.

In the suit Joyce filed against Thompson Wigdor in December 2006, she claims the firm should have brought defamation claims on her behalf as well, based on statements made by The Source defendants in April 2005.

At that time, the defendants said in a news release that they "suspect Ms. Joyce falsified health claims in an effort to attack The Source when she learned that she was going to be terminated." Scott said in a subsequent interview that Joyce "didn’t even do nothing around here" and "faked that she was having breast cancer so that we wouldn’t fire her."

In moving to dismiss Joyce’s claims, Thompson Wigdor argued that the statements she cited constituted non actionable opinion. But while Southern District Magistrate Judge Gabriel W. Gorenstein agreed that the statement that Joyce did "nothing" at The Source was an opinion, he said statements that she faked a medical condition were libelous per se.

"[T]he faking of a serious illness to avoid being fired has a precise and definite meaning and it is readily capable of being proven to be true or false," the magistrate judge wrote in Joyce v. Thompson Wigdor & Gilly, 06 civ. 15315. "

New York Lawyer reports that a legal malpractice case in Philadelphia may continue as is a case in New Jersey.

"Just a few weeks after a malpractice claim against Nixon Peabody was allowed to go forward in New Jersey, a Philadelphia judge has allowed to continue a separate, but similar, malpractice action against the firm in Pennsylvania, denying its motion for judgment on the pleadings.

In Jan Rubin Associates Inc. v. Nixon Peabody LLP, Nixon Peabody said the former client waived its right to file a malpractice claim under Pennsylvania law because they entered a settlement agreement in the underlying action.

Philadelphia Common Pleas Court Senior Judge Albert W. Sheppard Jr. disagreed, ruling in a July 31 opinion the state’s law allows exceptions to that rule if the settlement was legally deficient or if the ramifications of the settlement were not fully explained by the attorney.

Nixon Peabody was relying on a 1991 Pennsylvania Supreme Court decision, Muhammad v. Strassburger, in which the plaintiffs decided after settling a case that the amount wasn’t enough and sued their lawyer for malpractice. The court held that simple dissatisfaction with the terms of the settlement was not enough for a malpractice claim, according to Sheppard’s five-page opinion. "

In Legal Malpractice cases, the subtext is consistently one of betrayal, or at best a shortcoming.  Potential clients report that their attorney misled them, or abandoned them, or simply did not do the work.  These claims are often true, to a shocking and heartrending degree.

Here, in this story, not only is there the typical legal malpractice milieu, there is also the unrelated sad back story.

"Thomas Prousalis Jr. and Gayle Prousalis sued Cohen Milstein, along with partners Herbert Milstein and Lisa Mezzetti, in 2003, alleging the defendants had botched the Prousalises’ underlying case against their stockbroker. According to the complaint, Cohen Milstein failed to file witness or exhibit lists in that case, and withdrew as counsel on the morning of an arbitration hearing. As a consequence, the complaint says the Prousalises were forced to abandon their case.

The Prousalises were seeking $25 million in compensatory damages, and $100 million in punitive damages against Cohen Milstein. On Thursday, the jury awarded $500,000 to Gayle Prousalis, but did not find in favor of Thomas Prousalis. Thomas Prousalis, a former Washington lawyer, found himself in trouble with the law shortly after filing the complaint against Cohen Milstein. He pleaded guilty to mail, wire and securities fraud in 2004, and was disbarred in the District of Columbia the same year.