Reported today in the NYLJ, the case of Sapir v. Resnick, Supreme Court, Nassau County , Decided February 26, 2008 illustrates an important point.  The attorney’s mistakes are but the starting point in any legal malpractice case.  Vitality of the underlying case is all important too.

Here, "Justice Palmieri held that malpractice had occurred "when the defendant attorney failed to place the matter on the trial calendar, and because of this failure, was dismissed.

Then, analysis went on to the underlying case, which was a defective ladder claim.  That claim was a defective ladder lock which led to a collapse.  The legal malpractice case was defeated by a ladder expert who testified, and convinced the jury, that the ladder could not have collapsed as described by plaintiff.  Result?  Defense verdict, even after a good demonstration of legal malpractice deviation.

Blackwater’s Attorney Wiley Rein, is involved in litigation over the deaths of Blackwater employees in Iraq.  Tied up in this case are the questions of the military, contractors to the military, and the rules which apply to them.  Do the rules changes in a war zone, do active military operations in the immediate area change the rules, and are employees of a contractor who are not military personnel within the Federal Officer removal statute.

Discussed by BLT, the Blog of Legal Times tells this story:

"Wiley Rein has filed a motion to dismiss the $30 million legal malpractice lawsuit that Blackwater Security Consulting brought against the firm in late January in D.C. Superior Court.

The lawsuit alleges that if Wiley Rein and former partner Margaret Ryan, now a federal judge who is also named in the suit, had cited the federal officer removal statute and appropriate case precedent when defending the private security contractor in a 2005 wrongful-death suit, the case would have remained in federal court and eventually been thrown out. Instead, the case was remanded to the Superior Court of Wake County in North Carolina and is currently in arbitration.

According to Wiley Rein’s motion to dismiss, filed with Judge Judith Retchin yesterday by the firm’s attorneys — Zuckerman Spaeder partners Mark Foster and Elizabeth Taylor — the federal officer removal statute doesn’t apply. The motion argues that Blackwater wasn’t working in tandem with the U.S. military when its four employees were killed in Fallujah, Iraq, but rather was independently handling security for a catering contractor. "

From New York Lawyer:

"The $5 million malpractice case against star litigator Michele Roberts of Akin Gump Strauss Hauer & Feld will proceed to trial in D.C. Superior Court.

In a hearing that lasted more than three hours on March 7, Judge Jennifer Anderson weighed motions to dismiss, as well as a host of other matters. In addition to Roberts, the defendants include solo practitioner Steven Kiersh, and Goodwin Procter, the firm that absorbed Shea & Gardner, where Roberts once practiced. A trial date was set for Nov. 3.

The case stems from Roberts’ representation of Vaughn Stebbins in a 2001 civil case against the District and a Metropolitan Police Department officer. Stebbins claims Roberts botched his chance to recover damages for injuries he received after being shot by the police officer, and accuses Roberts of causing mishaps that led to the dismissal of his case. Roberts failed to formally withdraw her name from Stebbins’ case, even though Kiersh eventually took over the matter.

On Friday, Anderson granted partial summary judgment to Goodwin Procter, ruling that the firm did not have an attorney-client relationship with Stebbins, since Roberts took his case when she still had her own firm, Rochon & Roberts. Anderson, though, denied Roberts’ and Kiersh’s motions to dismiss, with regard to their claims that Stebbins’ underlying excessive force case would have ultimately failed. "

Legal malpractice insurance policies require, in general, that the insured notify the carrier of all incidents and claims, on penalty of forfeiting coverage.  Here is an interesting article from Wiley Rein on this issue:

"The United States District Court for the Middle District of Florida, applying Florida law, has held that a letter that gave notice of a potential lawsuit and requested information but that did not demand money or advise the recipient to put his insurance carrier on notice did not constitute a "Claim" under a medical malpractice professional liability policy. Myers v. Interstate Fire & Cas. Co., 2008 WL 276055 (M.D. Fla. Jan. 30, 2008).

An insurer issued a claims-made malpractice policy to a physician for a policy period ending June 19, 2003. The policy defined a "Claim" as "a demand for money, or the filing of Suit naming the Named Insured and alleging a Bodily Injury or Property Damage as a result of a Medical Incident."

Counsel for a former patient sent the doctor a letter on September 6, 2002, stating that he had been retained to represent the patient in a "claim for damages" arising from the doctor’s negligence and requesting a copy of any statements made by the patient, as well as a written statement identifying the doctor’s liability carrier. The insurance broker purportedly forwarded this letter to the insurer’s managing agent on September 22, 2002, though the agent had no record of having received it. "

Pleading in legal malpractice can be tricky.  Here is a recent New York case Shefa Unlimited, Inc., et al. respondents, v Amsterdam & Lewinter, 2006-10191 SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT 2008 NY Slip Op 1937; March 4, 2008, Decided, which reports the unsuccessful attempt to add new allegations against a law firm in a "relation back" setting.

"In the proposed second amended complaint, the plaintiffs sought, in effect, to assert a new cause of action to recover damages for legal malpractice. However, that cause of action was time-barred (see CPLR 214[6]). Moreover, the original complaint did not give the appellants notice [*2]of the alleged transactions, occurrences, or series of transactions and occurrences that formed the basis for the new cause of action (see CPLR 203[f]). Under these circumstances, where the proposed pleading was not a "mere extension" of the allegations in the original complaint, and thus, did not "relate back" to that pleading, the Supreme Court improvidently exercised its discretion in permitting the amendment (Krioutchkova v Gaad Realty Corp., 28 AD3d 427, 428). Indeed, although leave to amend a pleading is to be freely granted, leave should be denied where, as here, the opponent would suffer prejudice or surprise resulting directly from the delay in seeking leave, or the proposed amendment is palpably insufficient or patently devoid of merit (see CPLR 3025[b]; Nissenbaum v Ferazzoli, 171 AD2d 654, 655; Barnes v County of Nassau, 108 AD2d 50, 52). "

Plaintiff in Gersten v. Lemke, 110651/07 ,Decided: February 14, 2008 ,Justice Marylin G. Diamond ,NEW YORK COUNTY Supreme Court  was indicted.  He was convicted.  He successfully had the indictment dismissed, after demonstrating ineffective assistance of counsel.

Start the legal malpractice case now?  Yes, but there is little use for the Fed. District Court finding of ineffective assistance.  In fact, plaintiff has three hurdles: (a) actual innocence; (b) statute of limitations and (c) showing the actual deviation.

Here, no collateral estoppel.  Defendant attorney did not have a "full and fair" opportunity to be heard, and was not at the ineffective assistance hearing.

The statute of limitations starts to run with the dismissal of the indictment, not on the date of the deviation. 

Actual innocence must be demonstrated by plaintiff.  It is still his burden.

The general rule is that one may not sue an attorney, unless that attorney was working for you.  Privity is the concept that the attorney was hired by you, and worked for you.  You may not sue the other party’s attorney, no matter how badly you were treated in court by that attorney.

As in all things, there are exceptions.  Fraud, malicious behavior, and special circumstances might allow plaintiff to sue an attorney not his own.  It did not work in this case, however. Fred W. Nelson, etc., respondent, v Stanley Kalathara, v. Claude Simpson, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT  2008 NY Slip Op 1313;

"A predecessor guardian had sold property belonging to the incapacitated person. The lawyer represented the purchasers and the purchasers’ lender in that transaction. The successor guardian alleged that the predecessor guardian misappropriated, inter alia, funds that were received from that closing that belonged to the incapacitated person. The appellate court held that the successor guardian’s allegations against the lawyer, that by virtue of his role in the real property sale, he knew or should have known that the incapacitated person would rely on his skills as an attorney to issue checks payable to the guardian, and not to the predecessor guardian individually, did not fall within the narrow exception of fraud, collusion, malicious acts, or other special circumstances under which a cause of action alleging legal malpractice may have been asserted absent a showing of actual or near-privity. "

In this case, Tanger v Ferrer ,2008 NY Slip Op 01866 ,Decided on March 4, 2008 ,Appellate Division, First Department . the following mistakes led Supreme Court to grant summary judgment to plaintiff: "This Court found that the tenders were conditional and therefore did not act to stop the accrual of interest on the landlord’s claim (Solow Mgt. Corp. v Tanger, 1 AD3d 165, 166 [2003]). In addition, in the underlying action, defendants filed untimely post-trial briefs, which were not considered by the court, and prepared, but did not file, an appellate reply brief, contrary to their written acknowledgment to plaintiff. "  Good enough for plaintiff’s summary judgment motion?  No!

"In any event, by including a "reservation of rights" in the tender notice, defendants imposed a condition on the tender, by seeking to allow plaintiff’s defenses and counterclaims to survive, contrary to a satisfaction of the landlord’s claim in that action (see CPLR 3219). Having [*2]chosen the litigation strategy of employing a CPLR 3219 tender, defendants were obligated to execute the strategy in compliance with the statute. This does not necessarily constitute malpractice in the context of the ongoing dispute between Solow and plaintiff which involved six separate and ongoing lawsuits arising out of a rent strike. An explication of this strategy necessarily requires trial as it is a contested issue unresolved by discovery."