This case has gone from US District Court to the US Court of Appeals for the Second Circuit, to the NY Court of Appeals, and back to District Court.  It’s a case in which the question now is whether the retainer agreement is in effect, whether misconduct by the attorney vitiates the agreement, and to whom a big fee goes.

"This dispute between the plaintiff, Edward C. King ("King" or the "Plaintiff"), a musician, and his lawyer, defendant Lawrence A. Fox ("Fox" or the "Defendant") concerning the retainer agreement between them has occupied this Court, the magistrate judge, the Court of Appeals on two occasions, and the New York Court of Appeals over the past ten years. Presently at issue is Fox’s motion to strike King’s demand for a jury trial; initially made in August, 2003, deferred as a consequence of the grant of summary judgment for Fox in January, 2004, and renewed on October 31, 2007, after the remand from the Court of Appeals on August 11, 2006. For the reasons stated below, the motion will be denied."

22 NYCRR 1215 is a section of the law that governs attorney fees and engagement letters or retainer agreements.  Until recently, courts have had differeing interpretations of the penalty when an attorney seeks fees but has no retainer agreement or engagement letter.

The cases were decided in three different ways:  the first allowed the attorrney fees determined in quantum meruit, the second was that the attorney could keep collected fees but no future fees, and the third was to allow no fees at all.

Along came the case of Rubenstein v. Ganea held:

"We find that a strict rule prohibiting the recovery of counsel fees for an attorney’s noncompliance with 22 NYCRR 1215.1 is not appropriate and could create unfair windfalls for clients, particularly where clients know that the legal services they receive are not pro bono and where the failure to comply with the rule is not willful (see Matter of Feroleto, supra at 684). Our holding would be different were this matter a matrimonial action governed by the more stringent disciplinary requirements of 22 NYCRR 1400.3 and Code of Professional Responsibility DR 2-106 (c) (2). Here, Ganea concedes in her reply brief that "she did not think all legal services received would be free." Rubenstein’s failure to comply with 22 NYCRR 1215.1 was unintentional, no doubt attributed to the promulgation of the rule only seven weeks prior to his retention. Accordingly, the{**41 AD3d at 64} Supreme Court correctly held that Rubenstein could seek recovery of attorneys’ fees upon the theory of quantum meruit.[FN7]"

Now, the case of Mallin v. Nash in New York County adopts the Second Department’s holding:

"Public policy dictates that courts pay particular attention to fee arrangements between attorneys and their clients, as it is important that a fee contract be fair, reasonable, and fully known and understood by the client (see Jacobson v Sassower, 66 NY2d 991, 993, 499 NYS2d 381, 489 NE2d 1283 [1985]; Shaw v Manufacturers Hanover Trust Co., 68 NY2d 172, 176, 507 NYS2d 610, 499 NE2d 864 [1986]; Matter of Bizar & Martin v U.S. Ice Cream Corp., 228 AD2d 588, 644 NYS2d 753 [2d Dept 1996]). If the terms of a retainer agreement are not established, or if a client discharges an attorney without cause, the attorney may recover only in quantum meruit to the extent that the fair and reasonable value of legal services can be established (see Matter of Cohen v Grainger, Tesoriero & Bell, 81 NY2d 655, 658, 602 NYS2d 788, 622 NE2d 288 [1983]; Campagnola v Mulholland, Minion & Roe, 76 NY2d 38, 43, 556 NYS2d 239, 555 NE2d 611 [1990]; Matter of Schanzer, 7 AD2d 275, 182 NYS2d 475 [1st Dept 1959], affd 8 NY2d 972, 204 NYS2d 349, 169 NE2d 11 [1960]).

 In Mallin, the attorney was awarded no fees under quantum meruit.

Christian, son of Marlon Brando died last week, and the AP his former wife has now started a legal malpractice action concerning his will and codicils.  "But his family requested the autopsy on Monday "based on his past drug history," Los Angeles County coroner’s Lt Fred Corral said.

The autopsy, including a toxicology analysis, was scheduled for Tuesday, Mr Corral said.

Also on Monday, Christian Brando’s ex-wife Deborah sued the executors of Marlon Brando’s estate, claiming she is a victim of professional negligence, fraud and deceit.

She claimed that, as part of a February 2007 settlement with Christian Brando in a domestic violence case, she would become assignee of her ex-husband’s rights and claims in the estate.

Deborah Brando accused producer Mike Medavoy and fellow executors Larry J Dressler and Avra Douglas of executing a forged codicil to Brando’s will days before his death in July 1, 2004.

Small or Multi-billion dollar case, legal malpractice cases all rest upon the same three bases:  deviation from accepted practice, proximate cause and damage.  As an example, here is a smallish case from the Madison Record:

"A legal malpractice claim filed by Cydney Hollaway against Fairview Heights attorney Thomas C. Rich alleges she did not receive an adequate award for injuries in a workers’ compensation claim.

Hollaway, represented by Patricia A. Zimmer of Ripplinger & Zimmer in Belleville, is seeking in excess of $50,000 in damages plus costs of the suit.

According to the suit filed Jan. 22 in St. Clair County Circuit Court, Rich allegedly presented Holloway’s claim to an arbitrator as one for wage differential instead of one for permanent total disability.

Holloway was injured while working for Four Truckers, Inc. on Feb. 8, 2001, the suit claims. Holloway contracted with Rich on Feb. 15, 2001, whereby Rich would represent Holloway in a work comp claim.

"On December 13, 2005, defendant presented plaintiff’s claim at a hearing before Illinois Workers Compensation Commission Arbitrator John Dibble," the complaint states.

"On January 23, 2006, Arbitrator Dibble issued his decision, which awarded plaintiff compensation in the form of a wage differential."

Holloway claims she had a viable claim for permanent total disability and would have been successful in obtaining an award, "but for defendant’s negligence."

From an unpublished Illinois case, discussed  by  the Illinois Legal Malpractice Blog, we are reminded of the fact that a bankruptcy filing will generally cut off plaintiff’s right to bring any law suit, including the legal malpractice case.  Two things that always bear review:

1.  When one files bankruptcy, everything, including potential unpled causes of action become part of the bankrupt’s estate, and no longer personal to the bankrupt;

2.  Attorney fee disputes serve as collateral estoppel to a later legal malpractice case.

On some ocassions, the dissection of a case yields interesting insights.  Here is a Second Department Case: Petersen v Lysaght, Lysaght & Kramer, P.C. ,  2008 NY Slip Op 00472
Decided on January 22, 2008 ,Appellate Division, Second Department  which illustrates several points:

1.  Some cases are a problem from begining to end.  In this case there have been three appeals, and the case ends when plaintiff fails to file a note of issue, and cannot explain why, or show a meritorious case.

2.  Nassau and Suffolk notes of issue dates are sacrosanct.  "The certification order of the Supreme Court dated February 3, 2006, directing the plaintiff to file a note of issue within 90 days and warning that the action would be deemed dismissed without further order of the court if the plaintiff failed to comply with that directive, had the same effect as a valid 90-day notice pursuant to CPLR 3216 (see Louis v MTA Long Is. Bus Co., 44 AD3d 628; Hoffman v Kessler, 28 AD3d 718).

3.  Louis is more often cited for the proposition that the order of court [Kings, for example] did not have the same effect as a CPLR 3216 notice.

4.  It is usually a bad sign when the plaintiff-Appellant’s attorney is not listed on the appellate decision.  Generally, it means that the attorney did not ask for, or attend for oral argument.  Often a bad choice, it tells the court that appellant is not really interested in the outcome.

5.  This court determined that everyone here made mistakes:

"Moreover, the plaintiff’s motion papers failed to establish the existence of a meritorious cause of action. Contrary to the plaintiff’s contention, we have not previously decided this issue in his favor. On a prior appeal, we held that the Supreme Court should have denied those branches of a motion by the defendants Lysaght, Lysaght & Kramer, P.C., Peter Kramer, and Michael Balducci (hereinafter the defendants) which were to dismiss certain of the plaintiff’s causes of action insofar as asserted against them as barred by the doctrine of collateral estoppel (see Petersen v Lysaght, Lysaght & Kramer, 250 AD2d 581). On a second prior appeal, we held that the Supreme Court should have denied a motion by the defendants for summary judgment dismissing the same causes of action, on the ground that they failed to establish their prima facie entitlement to judgment as a matter of law (see Petersen v Lysaght, Lysaght & Kramer, 288 AD2d 281). Finally, on a third prior appeal, we reversed so much of an order of the Supreme Court as granted a motion by the defendants for leave to renew their prior summary judgment motion, on the ground that they failed to meet the requirements of CPLR 2221(e)(3)(see Petersen v Lysaght, Lysaght & Kramer, P.C., 19 AD3d 391). Thus, we have never previously held that the subject causes of action are, in fact, meritorious.

6.  One really should put everything into demonstrating a meritorious cause of action.  "To establish the merit of his claims, the plaintiff tendered a copy of his verified complaint, which, in relevant part, stated that "[t]he defendants made no efforts to secure a default judgment" against a defendant in an underlying personal injury action, thereby committing legal malpractice. Without even a modicum of proof that a default judgment properly could have been obtained against that defendant in the underlying action (see Woodson v Mendon Leasing Corp., 100 NY2d 62, 70-71; CPLR 3215[f]), we cannot conclude that the plaintiff established the existence of a meritorious cause of action to recover damages for legal malpractice.

We’ve reported on the widespread influence of Deleware corporate law.  Many attorneys seemingly practice Delaware law without setting a foot there, without holding themselves out as Delaware attorneys.  This happens when they advise corporate clients on how Delaware would act.

Here, in a Hinshaw report, is the collalary:  Delaware exercising personal jurisdiction over an ever widening group of lawyers.  "The Delaware Court of Chancery held that it had personal jurisdiction over an out of state law firm alleged to have been involved in a client’s tortious schemes because, inter alia, the law firm filed a corporate certificate amendment in Delaware. "  Read the entire report

Its Idaho, and its Winter.  However, this is not a weather blog.  Here is a case illustrating the age old conflict of interest between the insured and its insurer.  Here, the insured says that defendant attorney’s mission was to protect the insurance company, not the insured.

The Times-News reports: "St. Luke’s Magic Valley Regional Medical Center has sued a Washington attorney who once represented the hospital in an ongoing dispute, saying the attorney did not adequately defend against claims of Medicare fraud and other alleged improprieties.

The complaint, filed Jan. 17 in U.S. District Court in Boise, claims that Tom Luciani intentionally breached his fiduciary duty and committed professional malpractice while representing the hospital and Farmers Insurance between July 2003 and early 2006. Luciani was brought on by the insurance company to represent the hospital during litigation that started in 2001 with a tort claim against the hospital by two former employees.
According to the hospital’s most recent court filing, Luciani had a longstanding relationship with Farmers, which brought him in to replace another lawyer when the case moved to federal court. Following the desires of the insurance company, the complaint states, Luciani’s strategy focused on protecting Farmers from any damages while leaving the hospital open to a possible $22 million judgment.

After the hospital discovered Luciani had no plan to produce an expert witness to counter testimony from a plaintiff’s witness it hired its own counsel in 2006 – Chicago-based McDermott, Will and Emery LLP, one of the largest law firms in the country. "