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.

CELEBRITY CRUISES INC., and FANTASIA CRUISING INC., Plaintiffs, – against – ESSEF CORP., PAC-FAB, INC., and STRUCTURAL EUROPE N.V. (f/n/a SFC), Defendants.

96 Civ. 3135 (JCF)

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2008 U.S. Dist. LEXIS 568
January 4, 2008, Decided

This is a cruise line injury action. “After passengers sued plaintiff cruise line for injuries from an illness suffered while on a trip, the cruise line sued defendant manufacturer, which had designed, manufactured, and distributed the water filter in the whirlpool spa where the illness originated. After two damages trials, which resulted in an award of $ 15 million lost profits award for the cruise line, the parties filed various motions regarding damages.”

“This case has been litigated in installments. Having agreed to proceed before me for all purposes pursuant to 28 U.S.C. § 636(c), the parties stipulated to determination of all liability issues–those arising out of Celebrity’s claims as well as those related to the passengers’ claims–in a single bellwether trial. That trial took place in May 2000. The jury returned a verdict in favor of the passenger plaintiffs and against both Celebrity and Essef. The jury also found in favor of Celebrity on its claims against Essef, and a damages trial based [*4] on that determination was conducted in the spring of 2006. When the jury in the 2006 damages trial returned a verdict in favor of Celebrity for approximately $ 190 million, Essef moved for judgment as a matter of law or, in the alternative, for a new trial. I granted that motion in part, awarding judgment to Essef on one category of damage claims and ordering the retrial of another. Celebrity Cruises Inc. v. Essef Corp., 478 F. Supp. 2d 440 (S.D.N.Y. 2007) ("Celebrity IV"). A second trial on damages was held in June 2007, and this time the jury found Essef liable to Celebrity for approximately $ 15 million in lost profits.

“Second, Celebrity points out that in a legal malpractice action brought by Essef against its former counsel, Squire, Sanders and Dempsey LLP, Essef has argued [*21] that it was injured by the firm’s failure to seek a jury determination of comparative fault with respect to Celebrity’s claims against Essef. This, according to Celebrity, estops Essef from contending that it did not waive the right to avail itself of principles of comparative negligence. (Celebrity Memo. at 10). But nothing prevents Essef from pleading in the alternative by, as in this instance, asserting a contingent or hypothetical claim: if Essef is found to have waived comparative negligence, only then does it have a malpractice claim arising out of that failure. See Lawser v. Poudre School District R-1, 171 F. Supp. 2d 1155, 1158 (D. Colo. 2001) (finding that HN3 contingent claim is permissible hypothetical pleading). The predicate pled for that contingent claim, however, does not operate as a binding admission. See Henry v. Daytop Village, Inc., 42 F.3d 89, 95-96 (2d Cir. 1994); Ascher v. Target Corp., No. 05-CV-4826, 522 F. Supp. 2d 452, 2007 U.S. Dist. LEXIS 84015, 2007 WL 3287441, at *5 (E.D.N.Y. Oct. 16, 2007).”

CITAK & CITAK et al., Plaintiffs, -against- THE ST. PAUL TRAVELERS COS., INC., Defendant.

07 Civ. 5459 (WHP)

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2007 U.S. Dist. LEXIS 94040
December 26, 2007, Decided

This is a diversity jurisdiction case in which the law firm has asked for a declaratory judgment that it is covered by a subject legal malpractice insurance policy..

The Citak Firm “claims that St. Paul’s refused to provide counsel and indemnify them for a malpractice claim tiled against them on November 3, 2006 in New York State Supreme Court (New York County) by Stuart and Carina Marton (the "Marton Action"). The Martons allege that the Citaks’ legal malpractice damaged them in their pursuit of an arbitration award against a contractor. (Harwood Decl. Ex. C: Complaint, Marton v. Citak & Citak, No. 116472-06 (N.Y. Sup. Ct. Nov. 3, 2006.) The Martons seek "at least $ 60,000 in damages, with interest from November 29, 2000, together with plaintiffs’ costs and disbursements in [the] action." (Harwood Decl. Ex. C at 9.) After an arbitrator awarded the Martons $ 62,367.32 against their contractor, the Citaks moved [*3] to dismiss the Marton Action arguing that, having won the arbitration, the Martons could not demonstrate that the Citaks’ alleged malpractice had caused them any harm. On October 11, 2007, the New York State Supreme Court denied the Citaks’ motion to dismiss because (1) "but for defendants’ negligence, [the Martons] would have procured a judgment against [the contractor] while that entity had assets sufficient to satisfy the judgment;" and (2) the arbitrator denied the Martons’ request for $ 36,632.11 in pre-judgment interest, finding that the Citaks, and not the contractor, were responsible for the nearly seven year delay in bringing the arbitration. (Decision and Order, Marton v. Citak & Citak, No. 116472-06 (N.Y. Sup. Ct. Oct. 11, 2007) at 4.)”