Plaintiff suffered an auto accident, and went to trial.  Although the jury determined that the other driver was 100% at fault, it granted no damages to plaintiff.  She sued her attorney , alleging that settlement offers were not comunicated to her.JUANITA GALATE, v.  LOUIS A. CHIAROLANZA, ESQ.,  and CHIAROLANZA & DeANGELIS, ESQS

Her legal malpractice case is now dismissed, after several mistaken turns, and lots of  time passing with no one looking at the calendar.

"After the parties engaged in discovery, the attorneys exchanged correspondence regarding a trial date. In a letter to defendant’s attorney dated October 8, 2001, plaintiff’s attorney asked for "some potential dates in November 2001 which are in accord with your calendar," and defense counsel advised he was available for trial on November 29 and 30, 2001.

On January 25, 2002, the Essex County, Civil Division, scheduled the case for trial on March 18, 2002. The trial notice stated that any applications for adjournments "must include: consent of parties, [and an] agreed upon date." The trial notice was received by defendant’s attorney, but it was not received by plaintiff’s attorney. Thus, on February 11, 2002, plaintiff’s attorney was unaware that the case was already scheduled for trial, when he sent the following letter to the court, with copies to plaintiff and defendant’s attorney:

It appears plaintiff’s attorney never responded to the letter sent by defendant’s attorney requesting confirmation the trial date was adjourned to May 6, 2002, and the court never responded to the letter from plaintiff’s attorney requesting a trial date. Nevertheless, no further action was taken to obtain a trial date until July 30, 2004, when plaintiff’s attorney wrote the following letter to the court.

On March 23, 2007, plaintiff filed a motion to reinstate her complaint and to schedule her case for trial. In a certification submitted in support of plaintiff’s motion, plaintiff’s attorney explained that he was never notified the case was scheduled for trial on March 18, 2002, and he did not learn of the dismissal order until his "office contacted the Essex County Civil Assignment Clerk to ascertain when this matter would be scheduled for trial." However, plaintiff’s attorney did not explain why no action was taken to reinstate plaintiff’s complaint between July 30, 2004, and March 23, 2007.

On March 23, 2007, plaintiff filed a motion to reinstate her complaint and to schedule her case for trial. In a certification submitted in support of plaintiff’s motion, plaintiff’s attorney explained that he was never notified the case was scheduled for trial on March 18, 2002, and he did not learn of the dismissal order until his "office contacted the Essex County Civil Assignment Clerk to ascertain when this matter would be scheduled for trial." However, plaintiff’s attorney did not explain why no action was taken to reinstate plaintiff’s complaint between July 30, 2004, and March 23, 2007.

Following oral argument on April 27, 2007, the trial court denied plaintiff’s motion to reinstate her complaint. The court found that the five-year delay after the dismissal of plaintiff’s complaint on March 18, 2002, prejudiced defendant’s ability to respond to plaintiff’s claims, and it also found that plaintiff failed to articulate any explanation for the "lack of activity on this file" since July 2004.

Based on our review of the record and the applicable law, we reject these arguments and affirm"

From the Indiana Law Blog comes this will drafting legal malpractice case, in which the drafting of a will caused adverse tax consequences.  Plaintiffs sued, and attorney’s successfully moved for summary judgment, only to lose at the appellate level:

"The trial court denied the Lawyers’ motion as to one issue, but granted it as to the other. The Carlsons now appeal, raising a single issue, which we restate as whether the trial court properly granted summary judgment based on its determination that reformations to the Wills drafted by the Lawyers effectively eliminated any malpractice that occurred relating to the drafting of the original Wills. On cross-appeal, the Lawyers raise a single issue, which we restate as whether the trial court properly denied its motion for summary judgment on the grounds that the original Wills would result in adverse tax consequences. The Lawyers also raise the following issues: 1) whether the “substantial adverse interest exception” protects the Carlsons from adverse tax consequences; 2) whether the Carlsons have brought this suit too early, as the IRS has not yet assigned a tax penalty; and 3) whether the trial court improperly considered the opinion of an attorney hired by the Carlsons. We conclude the adverse interest exception does not protect the Carlsons, the Carlsons are not precluded from bringing their suit at this time, and that the Lawyers waived their argument relating to the opinion of the expert witness by not raising it before the trial court. We further conclude that the trial court properly found that the original Wills would result in adverse tax consequences, and affirm the trial court’s denial of the Lawyers’ motion for summary judgment on that issue. However, we conclude that the reformations did not effectively avoid potential adverse tax consequences, reverse the trial court’s grant of summary judgment on that issue, and remand for further proceedings."

Horulic v. Galloway started out as a garden or varietal auto accident case.  It blossumed into a unique legal malpractice – bad faith- Unfair Claims Settlement Act case in which at least one significant lesson is learned.  $ 500,000 is not sufficient coverage for attorneys who litigate personal injury matters.

Plaintiffs were injured in an auto accident and retained the Galloway law firm, which blew the statute on their case. 

" This matter was initially presented as a legal malpractice action filed by the Appellees against their former attorney, Mr. William O. Galloway and Galloway Law Offices. The original complaint alleged that Mr. Galloway committed legal malpractice by failing to observe a statute of limitations applicable to the Appellees’ automobile accident claims. (See footnote 1) Mr. Galloway was insured through a lawyers professional liability policy issued by the Appellant, TIG, with liability limits of $500,000.00. TIG undertook the defense of Mr. Galloway in the underlying legal malpractice action and hired attorney William D. Wilmoth to defend Mr. Galloway. Mr. Galloway also continued to retain his own private attorney, Jason Cuomo.
On October 27, 2003, the Appellees amended their complaint to assert a third- party bad faith claim against TIG, Cambridge Professional Liability Services, and Acordia of West Virginia. The bad faith claim was bifurcated, and discovery against TIG and Cambridge was stayed, pending the outcome of the legal malpractice action against Mr. Galloway."

Settlement was discussed: "allegedly selected by the parties included the following pertinent provisions: TIG would pay policy limits of $500,000.00, minus costs; Mr. Galloway would confess judgment in the amount of $1.5 million; TIG would consent to the judgment order and the confessed judgment; the Horkulics would agree not to execute against Mr. Galloway and would not record the judgment; a dismissal order would be entered in favor of Mr. Galloway; and the Horkulics would receive one-third of any recovery Mr. Galloway would have against TIG or Cambridge. "  However, these negotiations did not bear fruit.

"On appeal to this Court, TIG contends that the lower court improperly included language in the order indicating that TIG had granted broad authority to enter into the settlement. Further, TIG maintains that the lower court erred in entering findings of fact and conclusions of law against TIG that are central to the issues which will be subsequently addressed in the separate litigation of the bad faith claims asserted by the Horkulics. TIG also contends that the lower court erroneously permitted the inclusion of Mr. Galloway’s motion for injunctive relief on the issue of protection of his personal assets; that the court erred in permitting waiver of Mr. Galloway’s attorney-client privileges; and that the court permitted hearsay testimony by Mr. Wilmoth with regard to settlement negotiations. In the request for a writ of prohibition, TIG also alleges that the lower court erroneously awarded attorney fees to by paid by TIG and that the attorney fees were excessive."

"The primary issue in the case presently before this Court is whether the findings of fact and conclusions of law contained in the lower court’s August 25, 2006, order will be deemed binding upon TIG in the subsequent bad faith action."  Read the entire decision for the balance of the reasoning.

Air Measurement v. Akin Gump  is another reminder that there are alternative jurisdictional bases in Federal district court aside from diversity jurisdictino.  Here, a legal malpractice case over representation in a patent law case allowed the matter to be brought in Federal District Court.  Patent law resides exclusively [for all important aspects] in Federal law, and a legal malpractice case which arose from a claim of mishandling of a patent application will be sufficiently close to federal question for the court to allow a legal malpractice case to be litigated in Federal District Court.

Plaintiff wanted to sue his opponent’s attorneys.  While the ability to sue your opponent’s attorney is very restricted, [see: lack of privity}, in certain circumstances it is possible. This case:

Blum v Perlstein
2008 NY Slip Op 00439
Decided on January 22, 2008
Appellate Division, Second Department

appears to stand for the proposition that plaintiff had no legal malpractice case against the defendants, who were not his attorneys.  Supreme Court dismissed that aspect of the case, and the Appellate Division agreed.  However, the AD went on to dismiss the non-legal malpractice portions, which included breach of fiduciary duty, on the basis that a release of the original defendant in the case, and his "agents" included a release of the attorneys.

"the defendants demonstrated that the allegedly improper conduct that they engaged in, which predated a general release that the plaintiff executed before he commenced the instant action, came within the ambit of that release. The defendants also demonstrated that the release applied to them, as they represented the releasee, and the plaintiff discharged the releasee and its "agents" from liability (see Berkowitz v Fischbein, Badillo, Wagner & Harding, 7 AD3d 385, 387; Argyle Capital Mgt. Corp. v Lowenthal, Landau, Fischer & Brings, P.C., 261 AD2d 282)."

 

Closely related to the prior article on immigration legal malpractice is this story of legal malpractice in translation.  While the attorney was held responsible only for failing to follow a specific court order, his mistake arises from failing to have a translator there.

"Bilingual attorneys are often tempted to provide foreign language translation and even courtroom translation and interpreting services for their non-English-speaking clients. But is it prudent? The following facts apply to this case example:

Prior to trial, an attorney was ordered to provide a Norwegian interpreter for any hearing at which language would be an issue. During trial, the attorney failed to provide an official Norwegian interpreter for his witness’s testimony. Instead, the attorney personally provided the interpretation of the testimony, along with all foreign language documents as the attorney himself had Norwegian language skills. However, the client later testified he felt confused about the court proceeding, a claim in which the malpractice suit was brought. "

Here from the Illinois Legal Malpractice Blog discussing an ABA Journal article about a 2d Circuit Case.  Immigration legal malpractice is a frequent subject, with inherent problems for the plaintiff.  First, the client may not be in the country, and discovery/depositions will be difficult; second, proving the value of damages can be difficult.  The mistake and the consequences are clear:

"With disturbing frequency, this Court encounters evidence of ineffective representation by attorneys retained by immigrants seeking legal status in this country. We have previously indicated that ineffective assistance of counsel can constitute an "exceptional circumstance" warranting the reopening of a deportation order entered in absentia. See Twum v. INS, 411 F.3d 54, 59 n.4 (2d Cir. 2005). We write today to establish [*2] what we would have thought self-evident: A lawyer who misadvises his client concerning the date of an immigration hearing and then fails to inform the client of the deportation order entered in absentia (or the ramifications thereof) has provided ineffective assistance. We further clarify that such misadvice may constitute ineffective assistance of counsel even where it is supplied by a paralegal providing scheduling information on behalf of a lawyer. "

2008 U.S. App. LEXIS 3492,
GARFIELD LIVERN ST. VALENTINE ARIS, Petitioner, –v.– MICHAEL B. MUKASEY, Respondent. Docket No. 07-1211-ag
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
2008 U.S. App. LEXIS 3492
December 21, 2007, Argued
February 20, 2008, Decided

Two starkly differing views come to light in this twisted matrimonial/legalmalpractice case.  It all started with a matrimonial and custody case.  From the NYLJ:

"The underlying case, a contentious divorce and custody proceeding between Ms. Callaghan and her now former-husband Gerard A. Callaghan, began in 2001. In that action, Ms. Callaghan claimed her husband sexually abused their 5-year-old daughter.

Westchester County Court Judge Fred L. Shapiro deemed Ms. Callaghan’s claims baseless, and granted her husband custody of their five children.

Ms. Callaghan then recanted in a 38-page affidavit drafted by her attorney, Allan J. Berke, which spurred Judge Shapiro to deem Ms. Callaghan an unfit parent, and cut off her visitation rights as well.

When Mr. Berke drafted a 66-page recantation of the original recantation, Ms. Callaghan refused to sign, instead hiring Mr. Curtis to file a malpractice action against Mr. Berke.   Curtis and Berke had a 28 day hearing over Berke’s fees, which Curtis won. "Mr. Berke, in turn, refused to hand over the matrimonial file, claiming he was owed $28,000 in fees. Mr. Curtis successfully battled Mr. Berke in a 28-day quantum meruit hearing, in which Mr. Montagnino threw out Mr. Berke’s claim because he had suborned perjury. Mr. Curtis billed Ms. Callaghan $373,000 for his efforts.

Ms. Callaghan refused to pay, hiring yet another attorney, David M. Bushman, to contest the fee. With Mr. Bushman, Ms. Callaghan agreed to a flat rate. "  Now, Curtis sought his own fees.  A Westchester special referee called his fee request "absurd."

The Appellate Division has ruled that Curtis is to have his own fee hearing.

What happened to the kids?

Is legal malpractice litigation simply about the $$?

No one, and by that we mean the New York Attorney Malpractice Blog is accusing anyone of malpractice regarding this story.  Sheila Birnbaum is a demi-god in litigation circles. However, e-mails can trip up anyone.  Will a similar tale end in legal malpractice?  Law blog reports:

"Yesterday, Skadden Arps products-liability superstar Sheila Birnbaum mistakenly sent to reporters an email that was intended to be directed “internally.” The email was in response to a press release issued by the office of Mississippi AG Jim Hood. Birnbaum represented State Farm Insurance in litigation against Hood, which recently settled. Here’s the AP story.

Here is a textbook example of how courts view legal malpractice cases.  Their view does not necessarily comport with the reality of litigation.  In Katz v. Herzfeld & Rubin  the court holds:

"In support of the motion to dismiss, the defendant submitted evidence establishing that the acts of malpractice alleged in the complaint, including the defendant’s refusal to pursue a highly questionable claim for exaggerated lost earnings damages based on the injured plaintiff’s life expectancy and its purported delay in retaining an economist to evaluate the lost earnings claim, did not cause any alleged reduction in the amount of the monetary settlement reached in the underlying personal injury action. The defendant demonstrated that the plaintiffs discharged it and hired new counsel five months before they settled the underlying action. Under these circumstances, the defendant established that its actions did not proximately cause the plaintiffs’ alleged damages, and that subsequent counsel had a sufficient opportunity to protect the plaintiffs’ rights by pursuing any remedies it deemed appropriate on their behalf (see Ramcharan v Pariser, 20 AD3d 556; Perks v Lauto & Garabedian, 306 AD2d 261; Albin v Pearson, 289 AD2d 272; Kozmol v Law Firm of Allen L. Rothenberg, 241 AD2d 484). Thus, the Supreme Court properly dismissed the legal malpractice cause of action.

Things to note:  "A settlement of the underlying claim does not preclude a subsequent action for legal malpractice where the settlement was effectively compelled by the mistakes of counsel (see Tortura v Sullivan Papain Block McGrath & Cannavo, P.C., 21 AD3d 1082.

The Court determined the quality  of plaintiff’s evidence on this CPLR 3211 motion, when it found that their personal injury claims were "highly questionable"  and "exaggerated."

Lastly, as anyone who has looked for a new attorney when the case is underway, trying to get an attorney to take over a case after or close to the note of issue is often impossible.  The court is very optimistic when it says that subsequent counsel had the opportunity, to protect plaintiff.