Plaintiff retained a big name matrimonial firm to represent her.  Then she hired a legal malpractice firm to sue the matrimonial firm.  The legal malpractice case was dismissed.  Apparently she did not want to pay the legal malpractice firm who moved for a quantum meruit fee hearing.

In 2008 NY Slip Op 5647,  Eileen DeGregorio, appellant, v Joel C. Bender, et al., defendants; Curtis & Associates, P.C., nonparty-respondent. (Index No. 993/02)

"Plaintiff client appealed a judgment by the Westchester County Supreme Court (New York) that awarded nonparty law firm an attorney’s fee based on quantum meruit. 

In an action to recover damages for legal malpractice, the plaintiff appeals from a judgment of the Supreme Court, Westchester County (Friedman, J.H.O.), entered October 20, 2006, which, after a hearing, and upon a decision of the same court dated September 28, 2006, awarding the nonparty, Curtis & Associates, P.C., an attorney’s fee based on quantum meruit, is in favor of Curtis & Associates, P.C., and against her in the total sum of $ 94,017.70.

ORDERED that the judgment is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Westchester County, for further proceedings consistent herewith, including a new hearing and determination before a different Judicial Hearing Officer.

In December 2001 the appellant retained the nonparty, Curtis & Associates, P.C. (hereinafter Curtis), to represent her in the instant legal malpractice action against her former matrimonial [**2] attorney. In February 2004 the underlying complaint in the legal malpractice action was dismissed by decision and order of this Court (see DeGregorio v Bender, 4 AD3d 384, 772 N.Y.S.2d 89). Thereafter, the Supreme Court granted Curtis’ motion for a quantum meruit hearing to determine the fair and reasonable value of the legal services rendered to the appellant. Following the hearing, the court awarded Curtis legal fees in the sum of $ 94,017.70. We reverse.

HN1In fixing an award of legal fees in quantum meruit, the court should consider "evidence of [*2] the time and skill required in that case, the complexity of the matter, the attorney’s experience, ability, and reputation, the client’s benefit from the services, and the fee usually charged by other attorneys for similar services" (Rosenzweig v Gomez, 250 AD2d 664, 672 N.Y.S.2d 907; see DR 2-106[B] [22 NYCRR 1200.11(b)]). HN2An award in quantum meruit should be made after weighing all the relevant factors (see Padilla v Sansivieri, 31 AD3d 64, 65, 815 N.Y.S.2d 173). Here, the hearing court failed to consider and give appropriate weight to all the relevant factors involved in valuing legal services, including the court’s own finding of ethical violations committed by Curtis. "

From Day on Torts we learn that the "Ohio Supreme Court has ruled that a plaintiff in a legal malpractice case must prove the collectibility of damages"  The case is Paterek v. Peterson & Ibold, No 2006-1811 (Ohio June 18, 2008)

We’ve written about this in the past, both here and in the New York Law Journal.  The rule is split in New York.  In the 1st Department, the burden is on defendant.  In the remaining departments, the burden to plead and prove is on plaintiff.

Veras Investment Partners, LLC, et al., Plaintiffs-Appellants, v Akin Gump Strauss Hauer & Feld LLP, Defendant-Respondent.

3812N, 600340/07

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT

2008 NY Slip Op 5563;
June 19, 2008, Decided

The court granted a motion by defendants requiring plaintiffs to divulge attorney client discussions ‘granting defendant’s motion for a declaration that plaintiffs waived the attorney-client privilege by placing certain subjects "at issue," and to compel the disclosure of otherwise privileged communications and attorney work product, unanimously modified, on the law and the facts, disclosure of otherwise privileged materials relating to defendant’s 2002 advice to plaintiffs and the October 2003”
“In this legal malpractice and fraud action, defendant moved for an order compelling disclosure of communications plaintiffs may have had with their nonparty counsel as well as the work product of such counsel. The judicial hearing officer supervising discovery granted the motion on the ground that plaintiffs waived the attorney-client privilege. Thereafter, the Commercial Division denied plaintiffs’ motion to vacate the JHO’s order. The instant appeal, from the Commercial Division’s order, concerns the scope of plaintiffs’ waiver.”

“In rendering his decision, the JHO determined that any relevant advice plaintiffs received from their nonparty counsel bears on the issue of plaintiffs’ reasonable reliance on defendant’s advice regarding the legality of their trading practices. Based solely on the [**9] relevance of such advice, the JHO concluded that plaintiffs had waived the privilege with respect to any attorney-client communications that bear on plaintiffs’ state of mind regarding the legality of their trading practices. The JHO similarly reasoned that plaintiffs waived the privilege as to communications with nonparty counsel regarding defendant’s disclosure of its potential conflicts and plaintiffs’ understanding and waiver of such conflicts.

HN3 "[T]hat a privileged communication contains information relevant to issues the parties are litigating does not, without more, place the contents of the privileged communication itself at issue’ in the lawsuit" (Deutsche Bank, 43 AD3d at 64). Instead, "at issue" waiver occurs when a party has asserted a claim or defense that he or she intends to prove by use of the privileged material (id.). Accordingly, it was error for the JHO to find waiver on the basis of relevance alone. By itself, relevance also provides no basis for the JHO’s conclusion that plaintiffs’ claims stemming from defendant’s 2002 late trading advice and its preparation of McBride and Larson for their proffers raise "factual assertions which can only be resolved by an examination [**10] of the advice given by the other attorneys." The JHO’s order also directs the disclosure of nonparty [*4] counsels’ "analyses and evaluations of plaintiffs’ jeopardy" with respect to plaintiffs’ rationale for entering into the settlement agreement with the regulators. Such materials would constitute attorneys’ work product, immune from disclosure under CPLR 3101(c), because they involve strategy and legal theory (see Rodriguez v City of New York, 29 AD2d 962, 289 N.Y.S.2d 233 [1968], appeal dismissed 26 NY2d 833, 257 N.E.2d 906, 309 N.Y.S.2d 362 [1970]). HN4 The assertion of a cause of action with a claim for damages arising out of the settlement agreement does not constitute a waiver of the work product immunity (see Deutsche Bank, 43 AD3d at 66).”

MITCHELL PHILLIPS AND DALE PHILLIPS, PLAINTIFFS-RESPONDENTS, v MORAN & KUFTA, P.C., JOSEPH J. MORAN, ESQ., RICHARD J. KUFTA, ESQ., DEFENDANTS-APPELLANTS, ET AL., DEFENDANT.

718 CA 07-02711

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT

2008 NY Slip Op 6025;
July 3, 2008, Decided

JUDGES: PRESENT: SCUDDER , P.J., HURLBUTT , SMITH , GREEN , AND GORSKI , JJ.

Order affirmed without costs ”In support of their motion, defendants had the burden of establishing that plaintiffs are unable to prove at least one of those essential elements (see id.). Here, defendants failed to meet that burden inasmuch as, by their own submissions, they raised triable issues of fact "whether discretionary leave to file a late notice of claim against [the County] would have [**3] been available"

DEALY-DOE-EYES MADDUX, Appellant, v RONALD R. SCHUR JR., Respondent.

503708

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT

2008 NY Slip Op 6000
July 3, 2008, Decided

In this legal malpractice action, this Court previously affirmed the denial by Supreme Court (Best, J.) of, among other things, the parties’ motions for summary judgment. Thereafter, a jury trial was convened in December 2005 and, at the close of plaintiff’s proof, the court dismissed the case. In March 2007, plaintiff brought the present motion, purportedly pursuant to, asserting that the court should vacate its prior order of dismissal based upon newly discovered evidence. Opting to treat plaintiff’s motion as one to be relieved from a prior judgment Supreme Court (Aulisi, J.) denied the motion, concluding that plaintiff failed to prove that the evidence would probably have altered the outcome [**2] and that the evidence could not have been discovered earlier. Plaintiff now appeals and we affirm.

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