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."

In this article from Law.Com a question in Texas mirrors similar issues in California, Nevada and Ohio.  In the recent past there have been surveys, bar association meetings, proposed legislation and other indicia of interest in either mandatory legal malpractice insurance or required insurance disclosure to clients.  As of now, no rippling in New York on the question of whether an attorney has legal malpractice insurance, and no easy-practical way of finding out short of starting a law suit.

"While Texas lawyers aren’t keen on having a rule that would require them to disclose whether they carry legal malpractice insurance, the public favors such a requirement, recent surveys conducted by the State Bar of Texas show.

In an early April telephone survey of 500 Texas residents, 70 percent of the respondents said lawyers should be required to inform potential clients whether the lawyers carry, or do not carry, professional liability insurance that could cover the costs of claims arising out of their law practice.

In contrast, only about 23 percent of the 6,160 attorneys who responded to the State Bar’s online survey in February and 29 percent of the 500 attorneys contacted in a telephone survey in early April favored an insurance-disclosure rule. "

A 13-member task force appointed by State Bar President Gib Walton in the fall of 2007 is reviewing the survey results as well as data collected from other states that require lawyers to disclose their insurance status. David Beck, the task force’s chairman, says he is hopeful the task force will vote on whether to recommend a disclosure rule during a May 21 meeting in Houston.

This report from the West Virginia Record is an eye-opener on politics and judicial elections.  The tip of the iceberg is an aside in which an attorney has been suspended for failing to disclose whether he has legal malpractice insurance.  The story is mulit-facited, however:

"MORGANTOWN – E-mails in state Supreme Court candidate Bob Bastress’ West Virginia University College of Law account show he and others speculating on the race.

"As for the campaign, it has heated up," Bastress, a WVU law professor, wrote to a former colleague in a Feb. 8 e-mail. "The stuff on Spike (Chief Justice Maynard) has made it interesting, and the rumors are heavy (some from apparently knowledgeable sources) that a lot more is coming."

The exchange was with Emily Spieler, dean of the Northeastern University College of Law in Boston. She is a former WVU law professor. The subject line of the e-mail was "Dean search," and part of it was redacted by WVU.

The West Virginia Record had requested phone and fax records for Bastress since Nov. 1, and e-mail records since Nov. 1 of campaign-related correspondence.

The e-mails show that Bastress has talked to other WVU faculty members, students and others about helping on his campaign, had official campaign literature sent to his law school e-mail account, sought donations and communicated with the media about the election and discussed the campaign with current state Supreme Court Justice Larry Starcher. State law prohibits the use of public resources to run a political campaign.

Phone and fax records, according to WVU’s FOIA reply, only are kept for long-distance calls and faxes. Bastress had no long-distance calls or faxes, according to WVU. Bastress also does not have a state-issued cell phone, WVU said.

"The feds have moved in, apparently," Bastress continued in his e-mail to Spieler. "I’ve also been informed another development is coming in the next week. We’ll see. Spike could implode at any time, and he is certainly wounded enough already to have made a race of it. …

"Responses are positive (which means next to nothing), but raising money continues to be a struggle."

Spieler replied asking about the other candidates.

"The other two candidates are Margaret Workman and Menis Ketchum," Bastress replied. "Menis, as you might recall, is a very successful trial lawyer in Huntington and will dump a lot of money into the campaign."

Spieler again replied.

"Bad news about Ketchum," she wrote. "Sorry."

Another exchange that was forwarded to Bastress was between filmmaker Wayne Ewing and Michael C. Farber, a Sutton attorney who currently is suspended for failure to pay dues and to disclose whether he carries malpractice insurance as well as an ethics violation. "

     Good cause for termination is not the same as malpractice. Attorney malpractice, the deviation from good and accepted practice, which proximately damaged the party, in which, but for the negligence of the attorney there would have been a different or better result is not the same as good cause for termination. Termination for cause has arisen in many situations in which malpractice was not even discussed, much less claimed. Substantial delays in prosecuting the case, failure timely to obtain medical records, failure to retain an employment [which] contravenes specific legal requirements is sufficient, abandonment of a case, a conflict of interest, a refusal personally to try a case, a failure to disclose a settlement offer, are all examples of misconduct which does not amount to malpractice.

The difference flows logically from the question of damages. In malpractice there is a positive claim for damages, over and above fee considerations from the attorneys; in the question of termination for cause, there can be but a reduction of the fees paid, but no positive claim for damages. As one might expect, the burden of proof for malpractice requires much more than the burden of proof to decide between "good cause" and "no cause."

Suri Katebi, Plaintiff-Appellant, v Paul Fink, et al., Defendants-Respondents.

SUPREME COURT OF NEW YORK,
APPELLATE DIVISION, FIRST DEPARTMENT

2008 NY Slip Op 4141
May 1, 2008, Decided
May 1, 2008, Entered

Clients are often asked at an allocution, settling a matrimonial action whether they are satisfied with their attorney’s work. It is highly questionable whether they, at that time, knew whether the work is satisfactory or not, but the practice goes on.

Here is a legal malpractice case, arising from a matrimonial action which, at least in part, depends on this practice.

“While "[a] claim for legal malpractice is viable, despite settlement of the underlying action, if it is alleged that settlement of the action was effectively compelled by the mistakes of counsel" (Bernstein v Oppenheim & Co., 160 AD2d 428, 430, 554 N.Y.S.2d 487 [1990]), here, the complaint is contradicted by the evidentiary material submitted on the motion to dismiss (see Guggenheimer v Ginzburg, 43 NY2d 268, 275, 372 N.E.2d 17, 401 N.Y.S.2d 182 [1977]). Plaintiff testified that she did not wish to proceed with the trial of the matrimonial action, that she decided instead to enter into the stipulation of settlement because she wanted no further connection with her husband, that she understood that by settling the action before the completion of the trial she was foregoing the right to pursue [**2] the funds allegedly dissipated by him, and that she was satisfied with the services provided by her attorney.

We have considered plaintiff’s remaining contentions and find them unavailing.