He was one of the best known, and feared plaintiff’s attorneys in New York.  He had entire floors of offices at the Woolworth building in lower Manhattan, and early every morning a large number of trial attorneys would gather for breakfast and pick up their day’s work.  The Eisen and Napoli firm won gazillions of dollars in verdicts until it all ended.

Eisen has been pursuing a legal malpractice case against his own former attorneys for years, and yesterday the Court of Appeals gave it a green light to continue. 

The NYLJ reports:  "The Court of Appeals yesterday revived a legal malpractice suit against law firm Larossa, Mitchell & Ross over its representation of a personal injury lawyer found to have defrauded New York City by fabricating evidence in tort cases.

The suit, which was previously dismissed because Larossa’s ex-client was in dissolution, cannot now be barred on res judicata grounds against a successor firm, the court ruled.

The case stems from the travails of the law firm Morris J. Eisen PC. Once one of the New York’s top personal injury firms, the firm was accused by the city of falsifying evidence in a 1986 civil suit. Seven lawyers and investigators for the firm, including Morris J. Eisen, were subsequently targeted by federal prosecutors in Brooklyn and convicted on Racketeer Influenced and Corrupt Organizations Act charges in 1991.

Mr. Eisen had been represented in the criminal case by James M. Larossa, and the Larossa firm also represented the Eisen firm in the civil suit by the city. Eisen first tried to bring a legal malpractice suit against Larossa after a court granted partial summary judgment to the city on its fraud claims. The city was awarded $2.1 million.

The suit claimed Larossa did not adequately oppose the city’s summary judgment motion, failing to present evidence that would have shown that, notwithstanding any false testimony, the city was actually responsible for the injuries in the cases at issue.

"

We reported this confluence of Politics, Legal Malpractice and big estate probate work several weeks ago.  Defendants were  R. Christopher Bell, the 2006 Democratic gubernatorial nominee and a former U.S. congressman; Annette M. Henry; and their former firm, Bell & Henry in Houston.

Today, the Texas Lawyer Blog writes:  "former client’s breach-of-fiduciary duty claims can go to trial. In a June 24 decision, the 14th Court of Appeals held in Trousdale v. Henry, et al. that Lenieta Wylene Trousdale’s breach-of-fiduciary duty claims against the two attorneys and the firm were timely filed and are separate from her time-barred legal malpractice claims against all three defendants. The 129th District Court in Houston had granted summary judgment to Henry, Bell and the firm and dismissed Trousdale’s malpractice and breach-of-fiduciary duty claims. In a 2-1 decision, the 14th Court concluded that the trial court erred in applying the two-year statute of limitations to Trousdale’s breach-of-fiduciary duty claims, which include her claim that the defendants allegedly failed to tell her that her probate case and a separate fraud-and-conversion suit had been dismissed even though they continued to demand payment from her. The divided 14th Court panel affirmed the trial court’s order dismissing Trousdale’s malpractice claim but reversed the portion of the order dismissing the breach-of-fiduciary duty claims, which are controlled by a four-year statute of limitations. Justice Leslie Brock Yates joined Justice Wanda McKee Fowler in the majority opinion. Justice Eva Guzman wrote in her concurring and dissenting opinion that she would hold all of Trousdale’s claims are time-barred. "

Here, in an early report from the Competition Law 360 Blog is a report that:

"Kaye Scholer LLP is facing a legal malpractice suit over the way attorneys handled several antitrust suits accusing Celanese Americas Corp. of fixing the price of polyester staple fiber.

The suit, filed late last month in Dallas County, Texas, was removed Thursday to the U.S. District Court for the Northern District of Texas."

In a familiar setting, this time the case is receiver v. former attorney.  Other times it is bankruptcy trustee v. attorney.  Southwest Exchange, a former Nevada financial company involved in litigation and in receivership ended 2007 owing $98 million to 130 real estate investors.

Now, in this familiar setting the receiver is suing the law firm of Snell & Wilmer and accusing them of a fraudulent scheme. From the Wild Wild Law Blog     via a local newspaper reports:

"The Review-Journal reports:
The receiver for Southwest Exchange, the Henderson-based financial company that collapsed in 2007 owing $98 million to 130 real estate investors, is suing regional law firm Snell & Wilmer and accusing the law firm’s managing partner in Las Vegas of participating in a fraudulent scheme.

Attorney Steve Morris, who represents Snell & Wilmer, denied the allegations. "The allegations contained in the complaint are false and are not based on the facts," Morris said in a statement. "The complaint is nothing more than a litigation tactic intended to pressure the firm and its partner, Patrick Byrne, into settling claims that simply do not exist."

The article details how Byrne [allegedly] loaned millions of dollars to the owners and operators of Southwest Exchange in exchange for stock and airline flights, failed to disclose to one officer of the company that he was representing another officer of the company, and that Snell & Wilmer "failed to incorporate a provision of Nevada statutes that states that it is a felony for Southwest Exchange to transfer or commingle client money without written consent of the client".

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. "

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.

Decedents, Estates, Administrators, Lawsuits.  This area of legal malpractice is extraordinarily twisted and difficult when asserting privity.  Take for example the question of an executor suing the decedent’s attorney [who prepared the will] or the estate’s attorney [who offered the will for probate.]  They are not necessarily the same person, and different statutes of limitation calculate ions apply.  There will sometimes be privity between the estate and the will-writing attorney, and at other times, none,  see, Jacobs v. Kay, 2008 NYSlipOp 03710.

Here, similarly, is a Texas Case, reported in the Southeastern Texas Record.

"Houston attorney Harold Dutton had appealed Jefferson County 60th District Judge Gary Sanderson’s declaratory judgment that Dugas and his firm owed no duty to a client of Dutton’s. However on June 12 the appeals court upheld Sanderson’s in favor of Dugas in an opinion authored by Justice Hollis Horton.

The case began when Elizabeth Roberts hired Dugas & Associates to handle a survival claim after the death of her brother, Vincent Lazard. Roberts represented to Dugas that she was "the proper party" to bring suit and that she would undertake the steps required to be appointed as the personal representative of her brother’s estate. She also represented to Dugas that no administration of Lazard’s estate was pending.

"Based upon its relationship with (Roberts), Dugas & Associates filed a healthcare liability suit against (Lazard’s) healthcare providers on behalf of his estate," Justice Horton writes.

However Dugas then learned that prior to filing the suit, Patricia Covington had been appointed as executor of Lazard’s estate and that Covington had hired Harold Dutton to prosecute healthcare liability claims.

Dugas then filed suit against Dutton, stating that he was "surprised to learn Patricia Covington had been appointed executor" of Lazard’s estate. "

We reported on this Pennsylvania case last week, having come across several previously unknown words in the decision and article, such as prothonotary.  Here is a follow up article in which the judge recuses himself after the verdict.

"Luzerne County President Judge Mark A. Ciavarella Jr. has recused himself from making post-trial rulings in a $3.4 million legal malpractice case won in February by Robert J. Powell, the prominent attorney with whom Ciavarella has had financial ties.

Ciavarella issued an order Monday directing court administrators to assign another judge to rule on two motions filed by Jeffrey McCarron, the attorney representing the Hazleton law firm that lost to Powell’s clients — a group that includes members of the Slusser family of contractors and construction material suppliers.

In the first motion, filed May 13, McCarron requested a new trial, saying Ciavarella showed an “obvious display of favoritism” toward Powell’s clients. McCarron accused the judge of excluding evidence presented on behalf of his clients, Laputka, Bayless, Ecker & Cohn; making statements in front of the jury that prejudiced the firm’s case; and limiting the testimony of the firm’s witnesses, while granting more leeway to Powell and his witnesses. "