Here is a "brief chambers opinion" from Judge Newman:  Bennett, petitioner v. Mukasey, respondent ,U.S. COURT OF APPEALS, SECOND CIRCUIT.  As you may guess, it was not Mukasey whose legal work was left unfinished.  Bennett’s attorney filed a petition, and then when the legal fees went unpaid, allowed it to be dismissed.  Only a year later, when the client asked how his case was going, and the attorney got paid did the attorney ask the court to re-instate.

"Treating the motion as a one-judge procedural motion, See Fed. R. App. P. 27(c); 2d Cir. R. 27(f), I denied it on April 21, 2008, "without prejudice to a further submission, within ten days, explaining in detail the alleged ‘lack of cooperativeness’ between counsel and petitioner, including whether such lack concerned payment of, or liability for, counsel fees . . . ."

On May 7, 2008 (two days late, see Fed. R. App. P. 26), Rosenthal filed his response. He reported that in May 2006, he met with Bennett and that "[t]erms for . . . retention were discussed, and agreed upon and a modest retainer fee was paid." "Thereafter," the response continued, "as uncomfortable as it is to relate, Petitioner demonstrated a lack of cooperativeness with counsel by failing to pay as agreed upon . . . , and a letter sent to Petitioner advising him of the situation and the need to bring the outstanding balance to date went without response." "In late 2007 or early 2008," the response further continued, "Counsel received a call from Petitioner inquiring as to the status of the case, and was advised accordingly. A further promise to pay was forthcoming, but full payment on that promise was not received until March, 2008. The instant motion ensued."

By his own admission, Rosenthal evidently believes that a retainer agreement and initial payment for an appeal imposes upon counsel no obligation to pursue the appeal, that required steps may await further payment, and that a client’s appeal may be permitted to be defaulted and dismissed for lack of such further payment. The Lawyer’s Code of Professional Responsibility, as adopted by the New York State Bar Association ("NY Code"), makes clear that Rosenthal is incorrect. It provides: "Full availability of legal counsel requires both that persons be able to obtain counsel and that lawyers who undertake representation complete the work involved." NY Code, EC 2-31 (emphasis added). Moreover, "[a] lawyer shall not . . . [n]eglect a legal matter entrusted to the lawyer," id., DR 6-101(A)(3)," and "shall not intentionally . . . [f]ail to carry out a contract of employment entered into with a client for professional services [or] . . . prejudice or damage the client during the course of the professional relationship," id., DR 7-101(A)(2), (3). "

Here is an Indiana Case in which the concept of equitable subrogation is attempted in a legal malpractice case.  Here, insurer seeking equitable subrogation loses. In Queerey & Harrow LTD v. Transcontinental Ins. Co. two hurdles face the insurer:  privity and policy.  Attorney represents insured, and not carrier, much less the more distant excess carrier.  The Indiana Supreme Court holds that there is not a sufficient relationship between the attorneys and the excess carrier.

The second hurdle is policy.  Here the Supreme Court values the "obligations’ of loyalty and client confidentiality over the right of a carrier to re-coup its [unnecessary?] losses.

Attorneys for insurance carriers are rarely the subject of a legal malpractice case…it is much more often plaintiff’s attorney.  The Poppe law firm blog reports this case of a car insurance defense attorney who goes to trial on the underlying auto accident without ever meeting with the client, and to make matters worse, admits liability without the client’s consent.  While the Poppe blog does not set forth the full facts, it’s my guess that there was a verdict in excess of the policy, and that the resulting case against the attorney is for the amount above the policy along with disbursements and interest.

Here is the report:"Lawyer Osborne never contacted client Turner about the trial. In fact, he never even spoke to his client before the trial. One more thing. Lawyer Osborne stipulated (admitted) that client Tuner was negligent—even though he never spoke with his client. The jury awarded $1.7 million against the absent Turner. By the time Turner knew about the trial it was over, and he was facing a huge judgment.

In the legal negligence trial, Taylor W. Jones of Jones Jensen & Harris sued the former law firm alleging they bungled the car wreck defense and would have won the case if they had not commited legal malpractice. A jury agreed.

Georgia insurance defense law firm, Swift, Currie McGehee and Hiers defended lawyer Osborne. James T. McDonald, of the Swift law firm defended Osborne.

The jury awarded Turner $991,000 against his "lawyer."

In New York legal malpractice litigation, the defendant attorney may not ask for a set off in the amount of the hypothetical contingent fee.  That is, defendant attorney is sued for losing a personal injury action argues that the damages must be reduced by one-third, the amount plaintiff would have had to pay to an attorney, and which plaintiff will now be getting as a wind-fall.  No reduction in New York is allowed.

Here is the Poppe law firm blog report on Kentucky and Texas: "Any interesting debate is brewing in the legal malpractice arena. If an attorney takes a case on a contingent basis be entitled to reduce the client’s award for legal malpractice by the amount the attorney would have received as compensation? Sound complicated? Well, it is. Here is an example. Vicky Innocent is hurt badly in a car wreck. She hires Larry Lawyer to represent her on a 1/3 contingent basis. This means that the lawyer will take 1/3 of whatever he recovers Vicky for her injuries (for example, if he recovers $100,000 for her, then Larry’s fee would be $33,333.33). Now let’s assume that Larry Lawyer forgets to file the lawsuit within the statute of limitations and Vicky can no longer recover from the at-fault driver. So, Vicky hires a Malpractice Attorney to to sue Larry Lawyer to recover for her what she would have received from the car wreck. If a jury Vicky $100,000, does Larry Lawyer get to subtract $33,333.33 from it and just give Vicky $66,666.66? If so, then she is likely going to be hit with another whammy when Malpractice Attorney asks for his 1/3 contingent fee. Poor Vicky may only end up with $33,333.33 after the reduction. Such is the argument currently brewing over legal malpractice damages in Texas. "

Plaintiff was driving a truckfull of marijuana when he was stopped and arrested.  He says in the legal malpractice complaint that he spent less than an hour with his attorney prior to pleading guilty.  He believes that this was legal malpractice, and the criminal trial [appellate ?] court agreed with him to a certain extent.  They allowed withdrawal of the plea based upon ineffective assistance.

But is ineffective assistance of counsel legal malpractice?  The Legal Profession Blog reports:

"The Kansas Supreme Court affirmed the dismissal of a legal malpractice claim brought by a convicted defendant against his retained counsel. The client was arrested driving a truck that contained more than 3000 pounds of marijuana. He denied knowledge of the drugs but pleaded guilty on the attorney’s advice. He claimed that the attorney "spent less than 1 hour with him prior to the disposition of his criminal case." He was allowed to withdraw his plea on a finding of ineffective assistance of counsel and got diversion after serving the sentence. A disciplinary investigation "determined that none of [the lawyer’s] actions rose to the level of professional misconduct."

The absence of expert testimony was fatal to the malpractice claim:

The two issues [the client] raised involved matters outside the common knowledge of a lay person. The intricacies of the interplay between state and federal jurisdiction, the customs of a particular court, and the federal law surrounding immigration and deportation are all specialized areas of the law about which a lay juror would not know. Accordingly, we do not believe there was any way Singh could prove deviation from the standard of care without the use of expert witness testimony. The district court properly granted [the attorney’s] motion for summary judgment on that issue. "

Some law firms are sued for malpractice, and some sued twice or thrice.  Here is a story  from the Poppe Law firm blog about an Augusta law firm that has been sued so many times, its first carrier refused to renew the policy of legal malpractice insurance, and the second carrier won’t settle a current legal malpractice case.

"One of Augusta’s best known criminal defense firms has a problem. It seems they have been sued–23 times. Their insurance carrier has settled all of them– but one. The one suit they refuse to settle, or even pay for the defense, was filed by Wendell A. Jenifer.

So, not only is the Fleming firm having to pay the costs of defending themselves in the Jenifer case, they have also sued their insurance carrier, Clarendon National Insurance Co,

Jenifer sued the Fleming firm, John Fleming and his nephew William Fleming in 2006. Mr. Jenifer hired the firm and the attorneys to represent him in a personal injury case against a local hotel, and he alleges his case was thrown out because the attorneys did nothing to pursue it.

Mr. Jenifer’s malpractice case was scheduled for trial last month in U.S. District Court. It was put on hold to give the Fleming firm and the attorneys time to get a legal ruling about their insurance coverage during the time Mr. Jenifer claims he was neglected "

The recently decided DeLuca v. Goldberger provides several interesting lessons in legal malpractice.  The first is that attorneys who take on cases and then tell the client shortly before the statute of limitations runs, or shortly before a case must be restored, or shortly before some other deadline fact a legal malpractice problem.  Here plaintiff claimed that the attorneys did not give him enough time to find new representation to restore the case to the calendar prior to dismissal.

The second lesson is that an attorney must comply with CPLR 321[b].  The court  warned: "May the herein decision serve as a cautionary tale to the bar as to the importance of following the strictures of that subsection."

The third lesson is also found in a footnote.  Routinely, there are differences between deposition testimony and later affidavit testimony, as the respondent modifies and adapts to a changing landscape, offering wither widely or slightly divergent explanations.  The lesson is to really bear down on the deposition questions, so that there will be a big disparity between the deposition testimony and the later affidavit.  "The court notes that since there is no disparity between his deposition and the affidavit, plaintiff need offer no explantaion under Telfeyan v. City of New York, 40 AD3d 372 (1st Dept,1996)

This short news article is probably wrong on several counts of its report, but the story itself is compelling.  Client goes to a personal injury attorney Frank "The Strong Arm" Azar  with a car accident case and then the case is settled for $ 25,000.  Did he do a good enough job?  Must he "strong arm" the opponent to avoid legal malpractice?  The client successfully sued for $ 145,000.

"The lawsuit was brought by 40-year-old Shawna Jimenez of Colorado Springs, who says she was injured in a car crash in 2004. She says she was pressured take a settlement of $25,000. El Paso County jurors acquitted Azar’s firm and one of his attorneys of theft and false advertising but found them guilty of negligence and misrepresentation. Azar says he will appeal."