One of the more pleasant aspects of reading cases early in the morning is the occasional new word or concept that leaps from the page.  This article discusses a court official called the "Prothonotary,"  A prothonotary is an elected Clerk of the Court of Common Pleas Civil Division.

"A $3.4 million legal malpractice verdict in Luzerne County President Judge Mark A. Ciavarella Jr.’s courtroom should be overturned because the judge failed to reveal his business ties to the winning law firm in the case, according to a motion filed Tuesday in county court.  This report comes from the Citizens Voice.

At the beginning of the February jury trial, in response to questions from a defense attorney, Ciavarella denied having any relationship with attorney Robert J. Powell that would raise questions about his ability to fairly preside over the case. But, the motion argues, Ciavarella should have recused himself without being asked because of his financial interest in a land development deal tied to Powell and his partner in the Powell Law Group, county Prothonotary Jill A. Moran, which was revealed in The Citizens’ Voice last week.

“The Court’s undisclosed business relationship with plaintiffs’ counsel constituted conduct which denied defendants their due process right to a disinterested and impartial tribunal,” said the motion, filed by Philadelphia attorney Jeffrey B. McCarron.

At the beginning of the malpractice trial, without the jury present, Ciavarella reacted testily when McCarron asked him if he had any relationship with Powell that would prevent him from presiding fairly. McCarron said he had information about a possible relationship, including shared vacations, from other attorneys, whom he would not name. McCarron also made a vague reference to Powell’s investment in a private juvenile detention center in Pittston Township, which made millions from a county contract after the county’s judges closed a county-owned center in 2003.

Ciavarella denied taking vacations with Powell or having any relationship beyond normal socializing that he would have with other lawyers in the county. He criticized McCarron for failing to be specific

In an earlier motion seeking a new trial filed on May 13, McCarron alleged Ciavarella had exhibited bias during the trial by excluding defense evidence and making prejudicial statements in front of the jury. At the time the motion was filed, McCarron was unaware of the judge’s business ties to Moran and Powell, he said last week. "

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 nonactionable 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. "

It takes a lot of vexing conduct to be foreclosed from bringing an action in state court.  One has to be very, very obstinate and really tick the judge off.  To do so in a legal malpractice setting is even harder, because the general feeling is that plaintiff must have been hurt by a lawyer before bringing the suit, and perhaps a little slack permitted.

To accomplish foreclosure in both State and Federal courts is a difficult daily double.  This litigant has been foreclosed all around, and will not likely be plaintiff in the near future.  2008 U.S. Dist. LEXIS 41440, RAFFAELE M. PANDOZY, Plaintiff, – against – ROBERT J. GUMENICK, P.C., Defendant. 07 Civ. 1242 (NRB) UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK 2008 U.S. Dist. LEXIS 41440 May 23, 2008, Decided

"Before this Court is defendant Robert Gumenick’s motion to dismiss the Second Amended Complaint brought against him by Raffaele Pandozy. It alleges that defendant committed legal malpractice during his representation of plaintiff in connection with the sale of plaintiff’s cooperative apartment. Among other reasons, defendant moves to dismiss this action as untimely under the applicable statute of limitations. For the reasons set forth below, we grant defendant’s motion on this ground."

"The basic narrative for our purposes is that after an unsuccessful attempt to extricate himself from the contract to sell his apartment and to avoid the specific performance order that the purchaser obtained against him, plaintiff has spent [*2] the better part of the last four years suing everyone involved with the sale. After being barred by the New York state courts from bringing further actions arising out of the apartment sale, he filed three actions in federal court. The two other cases have been dismissed with both decisions finding plaintiff to be a vexatious litigant and enjoining him from filing further suits arising out of the apartment sale and the ensuing litigation. See Segan, 518 F. Supp. at 559; Tobey, 2007 WL 2815627, at *1. "
 

Today’s Outside Counsel Column in the New York Law Journal features our discussion of Barnett v. Schwartz, 47 AD3d 397 (2d Dept, 2007) which we consider to be revolutionary.  The question of "the proximate cause" versus "a proximate cause" is subtle, but of significant importance in the field of legal malpractice. 

Please see today’s column on page 4 of the Law Journal.

Still popular, and still selling records, Sly and the Family Stone were the subject of a film.  Unfortunately, the film and use of many recordings was without out their consent.  Potential litigation followed.  Problem?  While the attorneys were negotiating and battling from their offices, they allowed the statute of limitations to run. 

Thus, EVEN STREET PRODUCTIONS, LTD., Plaintiff, v. SHKAT ARROW HAFER & WEBER, LLP., Defendant.

05 CV 3834 (DAB)   UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK   2008 U.S. Dist. LEXIS 42397 May 29, 2008, Decided .

"Plaintiff Even Street Productions is a corporation incorporated in the State of New York. (Am. Compl. P 1.) Its principal place of business is likewise located in New York County, New York. (Id.) Plaintiff is the assignee of all the rights and interests of the musical career of Sylvester Stewart, professionally known as Sly Stone. (Id.) [*2] These rights and interests include, but are not limited to, his rights and interests as a composer, publisher, recording artist and entertainer. (Id.) Plaintiff is likewise the assignee of the rights and interests of Frederick Stewart, Rose Stewart, Cynthia Robinson, Larry Graham, Greg Errico and Gerald Martini with respect to their past activities as members of the musical group Sly and the Family Stone. (Id.) Plaintiff benefits from royalties and income generated by the exploitation of compositions written by Sylvester Stewart, and from royalties on the sale and exploitation of master recordings made by Sly and the Family Stone. (Am. Compl. PP 2, 3.)

Defendant Shukat Arrow Hafer & Webber, LLP., is a limited liability partnership practicing law; its principal office is in New York County, New York. (Compl. P 5.)

In 2000, Diamond Time Ltd. and New York Times Television produced a documentary titled Jimi and Sly: The Skin I’m In. (Compl. P 11.) This documentary was broadcast on the cable television network Showtime on September 17, 2000 and on at least two other occasions, in September and October of 2000. (Compl. P 13.) The documentary incorporated, without the authorization or permission [*3] of any of the rights holders, 39 musical compositions (the "Compositions") and 10 master recordings (the "Master Recordings") made by Sly and the Family Stone, as well as several film clips containing the image and likeness of Sly and the Family Stone. (Compl. P 12.) All the Master Recordings were and are the exclusive property of Sony Music Entertainment, Inc. ("Sony"). (Compl. P 6.) Copyrights in all the Compositions were and are owned by Mijac Music and administered by Warner/Chappell Music, Inc. ("Warner/Chappell") (Compl. P 4.) "

Here is an article from NY Lawyer about the Wilson Elser legal malpractice case.  They are still in for more than $ 941,000 but have cut about $ 1.7 million from the verdict.

"A California appeals court has upheld a $941,000 legal malpractice verdict against Wilson Elser Moskowitz Edelman & Dicker, but has thrown out $1.7 million of the original award given to the firm’s former client.

The California Court of Appeal, Second District, on May 28 affirmed the $941,000 award to Cal-City Construction, a company that had hired Wilson Elser after the Los Angeles Unified School District removed the company from one construction project and refused to make payments on another.

According to the decision, Wilson Elser had advised the construction company to walk off the job on the second project. However, prior to the construction company’s breach of contract trial against the school district, the law firm told the client that it should not have walked off the job, and that its only option was to settle under unfavorable terms.

In the malpractice action against Wilson Elser, the jury found the law firm liable for $2.5 million in damages, which included $941,000 in damages related to the adverse settlement and $1.7 million for lost future profits.

But the appeals court found that the construction company’s evidence of lost profits was "speculative and uncertain," and that the lower court should have granted the law firm a partial judgment-notwithstanding-the-verdict motion at trial.

Thomas Hyland, managing partner of Wilson Elser’s New York office, said the firm was evaluating the decision. "

In this case. Gabrielli v Dobson & Pinci ,2008 NY Slip Op 04749 ,Decided on May 27, 2008, Appellate Division, First Department, two attorneys represented the plaintiff contractor in succession, which was unable to prosecute its case for contract damages.  Plaintiffs were able to show many departures [deviations from good and accepted practice], but came up short in the legal malpractice case.  This case is an illustration of how the "but for" principal works.

"In this legal malpractice action, plaintiffs cannot show that defendant Ferrante’s failure to comply with a condition precedent under plaintiffs’ contract was the cause of any loss (see AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 434 [2007]), since Ferrante did not prevent them from obtaining the same recovery at a later juncture. Nor can plaintiffs show that Ferrante failed to submit timely a notice of claim to the architect with regard to a separate claim; its timeliness was not before the Second Department when it denied the motion to compel arbitration of said claim (Matter of Anagnostopoulos v Union Turnpike Mgt. Corp., 300 AD2d 393 [2002]).

As to defendant Lefkowitz, the alleged failure to extend a mechanic’s lien filed by his predecessor was not negligent because he was retained after it had expired as a matter of law. The alleged failure to commence or advise of the availability of a plenary action pursuant to General Business Law § 399-c was not negligent since the statute’s bar of mandatory arbitration of certain claims was intended to benefit consumers, not plaintiffs contractors (see Ragucci v Professional Constr. Servs., 25 AD3d 43 [2005]). Even if, arguendo, plaintiffs fall within the protective ambit of the statute, any plenary action would have been barred by the condition precedent, which was also applicable to litigation. Moreover, Lefkowitz’s failure to anticipate the 2005 appellate ruling in Ragucci, upon which plaintiffs rely (id.), would not have constituted [*2]a departure from the professional standard of care (see Darby & Darby v VSI Intl., Inc., 95 NY2d 308, 314 [2000]). "

Law.Com reports that the Wiley Rein legal malpractice case has been dismissed. This was a case with major players: "The Wiley team that defended Blackwater in the underlying case consisted of Fred Fielding, now White House counsel; Barbara Van Gelder, now a partner at Morgan, Lewis & Bockius; Scott McCaleb, still a partner at Wiley; and Margaret Ryan, now a judge for the U.S. Court of Appeals for the Armed Forces. Blackwater’s malpractice suit named Ryan as a separate defendant because, according to the complaint, she led the defense team."

Blackwater is a major player in the Iraq war, and this case involved a wrongful death in Fallujah.  Images of Blackwater contract employees being dragged behind trucks through the streets was a strong and sickening sight..

"Blackwater sued the Washington law firm in January, alleging that Wiley lawyers neglected critical case law and statutes while defending it in a 2005 wrongful death case brought on behalf of four Blackwater guards brutally killed in Fallujah, Iraq, in 2004. "

"In the malpractice complaint, Blackwater argued the wrongful death suit would have been dismissed if it were heard in federal court, where the defense could have relied on similar cases where claims against battlefield contractors were thrown out. But the 2005 case was kept in Wake County Superior Court in North Carolina, despite a motion filed by the Wiley team to get it moved to the U.S. District Court for the Eastern District of North Carolina. The malpractice complaint alleged the motion failed predominantly because the Wiley lawyers didn’t invoke the federal officer removal statute, which gives federal jurisdiction to claims involving federal officers.

Wiley’s motion to dismiss the malpractice suit argued that Blackwater could not have been considered a "federal officer" in the underlying case because the guards who were murdered did not contract directly with the U.S. government, were not providing security for U.S. military personnel, and were not overseen by the U.S. military.

In her five-page order, Retchin said Blackwater’s claim that it was entitled to remove the wrongful death case to federal court under the federal officer removal statute where "dismissal was the only appropriate remedy" were "legal conclusion[s] couched as factual allegation[s]."