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."

The case of Orchard Motorcycle Distributors v. Morrison Cohen shows just how easy it is to lose a motion for summary judgment, and not on the merits, either.

1.  Plaintiff did not submit an expert’s affidavit in opposition to an expert’s affidavit.  Fatal mistake.

2. Plaintiff did not deal with the collateral estoppel issue of Bankruptcy Court’s grant of legal fees. Fatal mistake 2.

3.  Plaintiff did not deal with the central issue of the case…how did the malpractice cause the result.

The problem of the uninsured or underinsured defendanat-attorney is illustrated in this West Virginia Case., Horkulic v. Galloway. 

Plaintiff settled th case for the full policy limit of TIG, and in a deal with the defendant attorney, took his putative bad faith claim, and agreed not to seek the attorney’s personal assets.  Along with that, it was agreed that plaintiff could seek attorney fees against TIG.  Good deal in a bad situation? 

Now it has unraveled. Jeffrey Mehalic at The West Virginia Litigation Blog  describes the situation.  TIG, naturally does not like the result.  "The Court has issued its decision in Horkulic v. Galloway, 2008 WL 481000 (W.Va. 2008), which involved a dispute between the lawyer for William Galloway, the defendant in a legal malpractice case, and TIG Insurance Company, which insured Galloway and had retained his lawyer, William Wilmoth. Galloway’s lawyer claimed that a settlement had been reached with plaintiff Jeffrey Horkulic, in which Galloway would confess judgment in the amount of $1,500,000, but that Horkulic would accept Galloway’s policy limits of $500,000 in satisfaction of his claim, would not pursue Galloway’s personal assets, and would not record the judgment.

TIG argued that the purported settlement would enable Horkulic to use Galloway’s confession of judgment in a separate bad faith action in order to establish the value of that claim, and appealed the Circuit Court of Hancock County’s order approving the settlement, including Galloway’s confession of judgment. "

What are the odds that plaintiff and plaintiff’s attorney will have a dispute?

The Magna v. Coburn case in which the bank is suing attorney Coburn over "steering" to a settlement structuring company which eventually swindled clients, took an unusual turn.  Lead attorney Rex Carr was called away from counsel table to the witness stand.

"In an odd twist Magna’s lead lawyer, Rex Carr, was called to testify as a witness for the defense.

Representing Thompson Coburn, Carrie Hogan of Jones Day in Chicago asked Carr a series of questions about his role in steering clients to James Gibson — the notorious businessman who ended up swindling structured settlements from children and widows.

According to Carr, it all started in 1985 when Gibson took up the business of structuring settlements under an agreement with a bank that Magna later acquired. "

Familiar with SLAPP suits?  Unfair Competition Law?  Probably not, unless you are in California.  Here is a blog entry from Kimberly Kralowec on a legal malpracice case in California which illustrates a California litigation tactic.  There, the Upper Deck co. v. Orick Herrington case tells us how the SLAPP law works.

"A recent unpublished opinion, The Upper Deck Co. v. Orrick, Herrington & Sutcliffe, no. D050373 (Feb. 26, 2008), illustrates a creative use of the UCL. The Upper Deck Co. sued Orrick, Herrington & Sutcliffe for legal malpractice. Orrick cross-complained under the UCL, arguing that Upper Deck "had a pattern and practice of hiring law firms without the intent to pay the fees and, after incurring significant fees, claiming malpractice as a pretext to avoid paying the fees." Slip op. at 1-2. Orrick sought "equitable relief as well as restitution for the value of the services it provided to Upper Deck." Id. at 3. Upper Deck moved to strike the UCL claim under the anti-SLAPP law (Code of Civil Procedure section 425.16), arguing that it was a strategic lawsuit against public participation in the petitioning process and the right to use the courts for that purpose. The trial court denied the motion, and the Court of Appeal affirmed.

In New Yortk CPLR 3211(g) covers the same territory.

Depositions in New York used to be a variant of the Wild West rodeo.  Bucking broncos, trying to stay up on the horse, pick your metaphor.  New attorneys soon learned the usual tricks, "I’ll take that under advisement", "I direct the witness not to answer" and all that.  With Administrative orders things have changed here.  Ever have a really really bad deposition experience?

A gross example of bad deposition behavior is found here  Of interest is the fact that attorney Ziccardi is being sanctioned along with his client.  We won’t repeat the vulgarities here, but read the entire story for a look at a bad situation.

"A federal judge has levied sanctions of more than $29,000 on a lawyer and his client after finding that a deposition was a "spectacular failure" because of the client’s constant use of vulgar language and insults and dodging or refusing to answer questions, and his lawyer’s failure to rein him in.

In his 44-page opinion in GMAC Bank v. HTFC Corp., U.S. District Judge Eduardo C. Robreno found that Aaron Wider, the CEO of HTFC, engaged in "hostile, uncivil, and vulgar conduct, which persisted throughout the nearly 12 hours of deposition testimony."

Robreno noted that Wider used the "F word" or variations of it 73 times during the deposition and that the video shows that his lawyer, Joseph R. Ziccardi of Chicago, at one point "snickered" at his client’s conduct.

"In the final section of the opinion, Robreno explained why Ziccardi, too, must be sanctioned for Wider’s misconduct.

"Throughout the deposition, notwithstanding the severe and repeated nature of Wider’s misconduct, Ziccardi persistently failed to intercede and correct Wider’s violations of the Federal Rules," Robreno wrote.

"Instead, Ziccardi sat idly by as a mere spectator to Wider’s abusive, obstructive, and evasive behavior; and when he did speak, he either incorrectly directed the witness not to answer, dared opposing counsel to file a motion to compel, or even joined in Wider’s offensive conduct," Robreno wrote.

In a footnote, Robreno said the video showed Ziccardi "chuckling at Wider’s abusive behavior" and Bodzin’s comment that "’your snickering counsel is not appropriate either, because all you’re doing is encouraging the behavior of your client.’"

In court papers, Ziccardi argued that he believed he had tried to curb his client’s behavior, but that most of his efforts to do so occurred off the record. "

Attorneys are generalists, no attorneys are specialists, no they can handle anything?  The profession is of two minds on this question.  Any attorney, duly admitted, etc. may offer opinion evidence on the behavior of another attorney, and any attorney might simply step up to the counsel table and give an appearance.  Once that happens, the trial is on.

However,  it’s quite obvious that experience is not only nice, it’s a necessity. Here is an article about defending the DUI case.  Somewhat long, and a little argumentative, it makes a very good point.  Is the person writing this article more likely to obtain a solid professional result, or will the friendly generalist do better for the criminal defendant?

"Almost every attorney is at one time or another confronted with a client, friend, or family member charged with drunk driving. Because accused drunk drivers are immediately charged with a crime, drunk-driving cases represent the single largest category of criminal infractions of all reported cases, with about 200,000 more cases processed each year than all theft and larceny offenses combined. Even attorneys who do not generally handle criminal matters are routinely asked how an accused person should proceed in a drunk-driving case.In the 1960s, driving under the influence of alcohol was considered a minor offense, leading to modest fines; in the 1990s, it is considered the most serious misdemeanor offense. In several states, repeat offenders are considered felons."