In this Lexology report, the lawfirm Lewis Brisbois Bisgaard & Smith LLP argues that a fall decision of the Court of Appeals re-affirms the principal that a legal malpractice claim might proceed even in fhe fact of documents signed by plaintniff or its predecessor.  The facts of Bishop v. Maurer  2007 NY Slip Op 6743; 9 N.Y.3d 910; 875 N.E.2d 883; 844 N.Y.S.2d 165; 2007 N.Y. LEXIS 2666

"involved the plaintiffs’ contention that the attorneys who prepared estate planning documents for plaintiffs’ decedent were negligent in drafting. The defendant law firm argued that the claim should be precluded based on the doctrine that parties should be bound by the documents which they (or, here, their decedent) executed. The Court held that the documents did not necessarily preclude a legal malpractice claim, since a client might be able to establish that his or her attorney negligently furnished an incorrect explanation of the contents of the document. "

The Decision in the Court of Appeals: "The order of the Appellate Division should be affirmed, with [**911] costs, and the certified question not answered on the ground that it is unnecessary. It is true that plaintiffs here, [*2] as is normally the case, are bound by the estate planning documents decedent signed. Nevertheless, the conclusiveness of the underlying agreement does not absolutely preclude an action for professional malpractice against an attorney for negligently giving to a client an incorrect explanation of the contents of a legal document (see Arnav Indus., Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner, 96 NY2d 300, 305, 751 NE2d 936, 727 NYS2d 688 [2001]). Here, however, plaintiffs’ complaint is devoid of any nonconclusory allegation that incorrect advice was given. "

Law.com reports that the Proskauer Rose legal malpractice case continues, but that a discovery dispute over deposition documents has been decided in Proskauer’s favor.

"Proskauer Rose will not be required to turn over internal working papers in a legal malpractice suit filed by Boca Aviation, the 4th District Court of Appeal ruled Wednesday.

Documents used to prepare a Proskauer partner for his deposition are protected by attorney-client and work-product privilege since he did not refer to them during questioning, the appellate panel ruled.

The Boca Raton law firm challenged an order by Palm Beach Circuit Judge Diana Lewis requiring production. Judges Barry Stone, Mark Polen and Larry Klein overturned her order in a unanimous, unsigned opinion. "

NY Lawyer [and Law.com] report that Linklaters is being sued for $55 million in "one of the largest cases against a top U.K. law firm in recent times.

The Magic Circle firm is preparing for a 20-day trial in the High Court next January over claims it gave negligent advice to Baltic telecoms company Levicom. Linklaters was instructed to advise Levicom in 2000 over a dispute with telecoms company Tele2 AB.

Levicom claims Linklaters’ advice on the dispute led to an arbitration in 2004, rather than a settlement on favorable terms. The company claims Linklaters advised it that its case had a 70 percent chance of success if it were to go to arbitration, but at a later date reduced that to 50 percent. It says that, based on Linklaters’ advice, it turned down three settlement offers.

According to the claim form, which was initially filed in October 2006 but was amended in April this year, Levicom is claiming damages for "the lost opportunity to negotiate a more advantageous settlement". It is also seeking an uplift of at least 10 percent, bringing the minimum claim value to $55 million. "

As part of the "but for" rule, a hypothetical judgment which plaintiff would have won, except for the attorney’s mistake, is the measure of damages in legal malpractice. We have written about this in the New York Law Journal. [4/20/07] The defense of collectibility is that even if successful in the case below, plaintiff would not have been able to collect the hypothetical judgment.

Here in New York, the Second Department takes the majority position nationwide, and the balance of the other departments take the minority position. Here is an Ohio case Paterek v. Peterson which nicely discusses each position and gives differing states’ views on the matter

To what extent may a legal malpractice defendant seek disclosure of privileged discussions? The general answer is if they are "at issue" in the legal malpractice. Here in the Akin Gump legal malpractice case is a good example. From Law.Com:

"Manhattan appeals court has narrowed the scope of discovery Akin Gump Strauss Hauer & Feld can seek from the former hedge fund managers who are suing the law firm for fraud and legal malpractice.

James McBride and Kevin Larson, the former principals of Veras Investment Partners, sued Akin Gump for over $4 billion in damages last year, claiming the firm advised it that the "late trading" activities which made the fund a target of former New York Attorney General Eliot Spitzer were legal.

A judicial hearing officer had ruled that the Veras plaintiffs had waived privilege regarding these communications by placing them "at issue" in their complaint. But the Appellate Division, 1st Department ruled Thursday in Veras v. Akin Gump, 600340/07, that mere relevance did not suffice to place the contents of otherwise privileged communications at issue. "

The Times Leader reports on a $ 3.4 Million legal malpractice action taking place there, now, post verdict.  The twist is that the winner of the case, executor of an estate had asked the trial judge to recuse himself because of financial conflict of interest.

"Attorneys for the Slusser family have asked Luzerne County Court to deny a petition filed by attorneys for Laputka, Bayless, Ecker and Cohn that seeks to overturn a $3.4 million legal malpractice judgment against the law firm.

In court papers filed Monday, attorneys Stephen Seach and Jonathan Lang of the Robert Powell law firm said that state law orders the judgment should stand.

Because the petition “lacks merit” court papers said, the judgment should be final and “not be subject to reconsideration,” according to state law.

The case has since been sent to the state Supreme Court, which will assign a judge outside Luzerne County to hear any further matters in the case. Court Administrator William Sharkey filed papers last week asking for the move.

A spokesman for the state Supreme Court said a judge has not yet been assigned.

The Slusser family sued the Laputka firm in 2000, alleging the firm was negligent in its handling of its estate.

In February, a jury awarded Bernadette Slusser, executor of the estate of Thomas Slusser, $3.4 million.

The ongoing civil case has received much attention since Philadelphia attorney Jeffrey B. McCarron of Philadelphia accused Luzerne County Court of Common Pleas Judge Mark Ciavarella of having a conflict of interest in the case.

McCarron said Ciavarella’s financial relationship with a company partly owned by Luzerne County Prothonotary Jill Moran, an attorney with the Powell law firm, calls into question his ability to impartially rule on the case.

Ciavarella has since recused himself from the case. "

This case from New Jersey illustrates the border line between behavior that is so bad that an expert is not needed at trial to testify on whether there was a deviation, and behavior that is bad, but still requires an expert. The NJ court found in TARUTIS, v. ALAN ACKERMAN and GREGORY WISOTSKY, that:

"No expert is needed "where the questioned conduct presents such an obvious breach of an equally obvious professional norm that the fact-finder could resolve the dispute based on its own ordinary knowledge and experience and without resort to technical or esoteric information." Brach Eichler, supra, 345 N.J. Super. at 12. For example, no expert testimony was required when the attorney entirely failed to submit a legal argument in his client’s defense, Sommers v. McKinney, 287 N.J. Super. 1, 8-12 (App. Div. 1996), or where the attorney failed to comply with the controlling statute of limitations, Brizak v. Needle, 239 N.J. Super. 415, 429, 431-33 (App. Div.), certif. denied, 122 N.J. 164 (1990). "

But, where the defendant attorney "did not retain an expert to testify to the coefficient of friction of the floor, nor did he propound interrogatories, depose any witnesses, request documents, or request admissions from Resorts" the legal malpractice client still needs an expert to testify that the attorney was negligent.

Arbitration clauses in attorney-client retainer agreements is a trend.  Law firms, who presumably know the costs and efficiencies of litigation choose arbitration in the belief that most cases they are involved in will be a fee dispute.  Legal malpractice, either as a counterclaim to a fee demand or on its own does sometimes intrude, however.

Here is a case from the Illinois Appellate Lawyer  Blog which shows how to waive the advantage obtained by an arbitration clause:

"Jeffrey Woods and three associated parties had a dispute with the Patterson Law firm. The law firm claimed Woods et al. owed $47,000 for legal fees; Woods claimed the law firm committed legal malpractice. The law firm sued for the fees, but voluntarily dismissed its case. Woods then sued for malpractice.

In the malpractice case, the law firm raised an affirmative defense that its agreement with Woods required arbitration of “[a]ny controversy, dispute or claim arising out of or relating to our fees, charges, performance of legal services …” But the firm also made two motions to dismiss the case, filed a demand for a bill of particulars, served interrogatories on plaintiff, and issued a subpoena for documents to a third-party.

After all that, the firm asked the court to compel arbitration of the dispute. The trial court ruled that the law firm waived its right to compel arbitration because it participated so heavily in Woods’s lawsuit. The law firm appealed the denial of its attempt to compel the arbitration.

The appeal was pursuant to Illinois Supreme Court Rule 307(a), which permits interlocutory appeals as of right from an order granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction. The First District Illinois Appellate Court ruled that “a motion to compel arbitration is analogous to a motion for injunctive relief," and that the standard of review is “abuse of discretion.”