Here is a SDNY case in which plaintiffs sued for legal malpractice, and lost the bench trial and the appeal.  The decision does not spell out what was ambiguous about the retainer agreement, but both the bench and the appeal court determined that this "engagement" letter was insufficient to spell out an attorney-client relationship.

LATIN AMERICA FINANCE GROUP, INC. and WILLIAM VAN DIEPEN, Plaintiffs-Appellants, -v.- CARLOS PAREJA and PAREJA Y ASOCIADOS, Defendants-Appellees. 06-3888-cv
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

2008 U.S. App. LEXIS 4048

Interesting too was the trial court’s inclusion and exclusion of expert testimony.  Apparently for defendant, it permitted the testimony.  It excluded for plaintiff because the expert testimony consisted of "fact finding, the application of law to facts, and the drawing of conclusions as a result of the application of law to facts. "  This problem exists at all times, but is especially difficult in a bench trial, where the fact finder is, after all, a judge who neither needs, nor wants, application of law to facts.

BLT law blog [look it up for yourself] reports that Blackwater [the military and security subcontractor] is suing Zuckerman Spaeder in legal malpractice.  Here it is from the BLT:

"Wiley Rein has hired attorneys at Zuckerman Spaeder to represent the firm in the $30 million Blackwater suit. In D.C. Superior Court, the private security contractor filed suit against Wiley Rein and former attorney Margaret Ryan in late January for legal malpractice.

Elizabeth Taylor and Mark Foster of Zuckerman Spaeder are handling the representation. The firm has until March 13 to file an answer to the complaint. See this Legal Times article for more about the lawsuit ."

We write in a large legal community, and this story is from a smaller one.  Nevertheless, the interior quote caught  our attention.  This trial Magna Bank v. Coburn has been going on in Madison County, and has been widely reported.  Here is yet another story, but with a twist.  Sparsely attended untill now, the courtroom filled with spectators, all wanting to see this expert witness, Tom Keefe.

Watch for the interior qote.  Mr. Keefe’s fee is $ 1000 per hour.

"That changed dramatically February 27, as Stack’s third floor courtroom was jammed with legal professionals from every field: trial attorneys, probate lawyers, prosecutors, public defenders and even judges came by to witness the day’s proceedings.

The expert witness, attorney Tom Keefe, took the stand to explain to jurors why, in his opinion, Thompson Coburn committed malpractice while representing Magna Bank. He said he agreed to appear to "make amends for the two-week brain fart" he had when he represented fellow lawyer Stephen Tillery in a case years ago and is donating his appearance fee to charity.

Here, in a story from Atlanta from the Augusta Chronicle is the story of an Atlanta law firm that has a multiple number of legal malpractice cases facing it.  One in particular, Jennifer v. Fleming the jury will be permitted to hear about an additional 22 cases.  Two  things stand out in this case:

a.  Defendants cannot call attorney experts to denigrate plaintiff’s underlying Personal Injury matter;

b. The jury may hear of 22 unrelated legal malpractice cases too.

"On Thursday, U.S. District Magistrate Judge W. Leon Barfield framed what a federal court jury will hear in April when the civil lawsuit Wendell A. Jenifer filed against the Fleming firm, John Fleming and Williams Fleming goes to trial.

"I have come to the conclusion … that much of the insurance evidence proffered by the plaintiffs in this case is admissible," Judge Barfield said.

In 2002, Fleming attorney Richard Ingram contacted the firm’s insurance company about the possibility of 22 malpractice claims against the firm. In documents the jury will see, unless another judge rules differently at trial, Mr. Ingram lays the blame at the feet of John Fleming and his nephew William.

Judge Barfield said Thursday it is plausible that the Fleming firm found itself in "a firestorm" in 2002. The insurance company canceled the firm’s policy, and it was re-instated only when John and William Fleming resigned. John Fleming returned a month later.

It is plausible, Judge Barfield said, that the firm’s attorneys realized that any claim Mr. Jenifer might file would not be covered by the insurance. The evidence about the other insurance claims is relevant because the firm admitted to wrongdoing until it came to Mr. Jenifer’s case, the judge said.

The judge ruled the defendants cannot call other attorneys as witnesses to give opinions about the merits of Mr. Jenifer’s case against the hotel. That will be a decision the jury must make in determining whether there was legal malpractice, Judge Barfield said.

Here are some NY state cases this week in Legal Malpractice:

1.Max Markus Katz, et al., appellants, v Herzfeld & Rubin, P.C., respondent.

APPELLATE DIVISION, SECOND DEPARTMENT
2008 NY Slip Op 1507           February 19, 2008

This case demonstrates two potent defenses:  "we were fired before the end of the case, and the new attorneys could have fixed the problem…"

Plaintiffs argued that they were forced to settle a PI action for  than they could have recovered ,Defendants submitted evidence establishing that  the law firm’s refusal to "pursue a highly questionable claim for exaggerated lost earnings damages" and "its purported delay in retaining an economist to evaluate the lost earnings claim" , had nothing to do with the the amount of the settlement  in the underlying action.

More telling, defendants were discharged and plaintiffs hired new counsel five months before they settled the underlying action.  The Court found  no proximate cause, and that "subsequent counsel had a sufficient opportunity to protect the clients’ rights "

2.     Kathleen Velie, et al., appellants, v Ellis Law, P.C., 

 APPELLATE DIVISION, SECOND DEPARTMENT
2008 NY Slip Op 1533; February 19, 2008

Here, in an underlying slip on ice case it seems that the defendant attorneys simply did not start the case within the statute of limitations period, With no discussion of the underlying case, or why they could have successfully sued the snow removal people or the property owners, the Appellate Division found that the defendant attorneys failed in their prima facie obligation in summary judgment.  Traditionally this means that there was no attorney’s affidavit, or some especially important element of the motion for summary judgment was missing. This is surprising, in view of the identities of the defending and prosecuting attorneys, both of whom are powerhouses in the field.  Note that this Duchess county case attracted a significant NY plaintiff’s law firm, and had a well known Westchester legal malpractice defense firm making the MSJ.

Here is an unusual "too early" case in legal malpractice: Analisa Salon Ltd. v. Elide Properties LLC, 7582/05 , January 28, 2008  

"Essential to a legal malpractice claim is proof that the alleged acts of an attorney proximately caused compensable damages. If there are no damages, there can be no cause of action. See Zletz v. Outten and Golden LLP, 18 AD3d 322 (1st Dept 2005). Since the main action is still pending, Elide cannot claim damages, and thus, its assertion of legal malpractice in the third-party complaint cannot stand. See Kahn Jewelry Corp v. Rosenfeld, 295 AD2d 261 (1st Dept 2002) (in view of the circumstances that the underlying action was still pending at the time of defendant’s motion, plaintiffs have not yet sustained any actual damages attributable to the alleged malpractice). Mere speculation of loss resulting from alleged attorney negligence is insufficient to sustain a prima facie case of legal malpractice. See Luniewski v. Zeitlin, 188 AD2d 642 (2nd Dept 1992).

Moreover, Elide could not have stopped the eviction even if Salerno had advised it that same was improper, because Elide had no authority over defendant constable Kenneth R. Herbert in light of the lawfully issued warrant. Moreover, Elide’s representative at the eviction, defendant Michael M. Seminara, a constable himself, knew same was premature, but did nothing. "

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."