While, generally, patent law depends on Federal Law, and provides federal question jurisdiction in Federal District Court for patent legal malpractice cases, here is an interesting state court appellate decision from Colorado.  Bristol v. Osman, Court of Appeals, Colorado.  It involves patent laches, and the statute of limiations in legal malpractice.  It also involves 6 amended complaints, the last four of which were submitted in contravention of the rules, and without any motion seeking leave.

Small towns have communities that notice small events.  Here is an example:  a lawfirm throws out old files, and they mistakenly sit on the curb, awaiting the garbage truck.  The local news station finds out, and puts this story on their website.

"A call to the Channel 2 News Tipline asked why open boxes with files were out on the curb in front of a law firm in Orchard Park. Channel 2 News then found some of those same open boxes.

The boxes were on the curb of South Buffalo Street in front of the Berkowitz and Pace Law Firm. One of the open boxes had a visible file labeled "Medical Malpractice" with a name and phone number visible.

Attorney Leonard Berkowitz told us they were remodeling their office and that’s why the boxes were thrown out that way. Berkowitz was asked if he felt there could be confidential records or information in the boxes. "These are old boxes. We thought they were going to be picked up immediately. They probably should have been shredded. We’re gonna take ’em back in now based upon what you said. It was a mistake and they should have been shredded."

Law.Com reports on this Venable Legal malpractice case:

"In 2004, Venable partner Stefan Tucker’s former client Alan Weinberger sued him for malpractice. The claim stemmed from a prior suit between Weinberger and another of Tucker’s ex-clients, Lev Volftsun. After years of this messy legal spat, the 4th U.S. Circuit Court of Appeals affirmed that Weinberger had no case late last month. But it seems Tucker hasn’t shaken his ex-client just yet: Weinberger has confirmed plans to file a motion this week for a new hearing before the entire court.

Tucker first introduced his two clients in 2000. Weinberger needed investors for his company TechNet, so Tucker helped Volftsun negotiate an agreement to loan TechNet $250,000 and to become a company board member. In 2001, Weinberger created a holding company into which he merged TechNet and another company, ASCII. Volftsun sought repayment of the loan. The company did not repay him, and Volftsun consequently sued in the U.S. District Court for the Eastern District of Virginia.

Weinberger appealed in September, only to have the lower court’s decision affirmed by a three-judge panel on Dec. 20, but that decision clearly has not discouraged him. "

McNight v. Public Defender is  recently decided New Jersey Legal Malpractice Case.   We started a discussion yesterday.

Today, let’s look at the court’s description of the three approaches to criminal defense legal malpractice cases.

1.  Need for Actual Innocence:  NY is among these jurisdictions.  One must demonstrate a reversal, or an exoneration, which starts the statute of limitations running.

2.  No Need for Actual Innocence:  Plaintiff”s s/l starts running on the date of the malpractice.

3. A two tiered approach.  The NJ solution is that a post-conviction process in criminal court must be started, and the legal malpractice must be simultaneously started, but the legal malpractice case should be stayed.

The 55 page decision is well worth reading for the many nuances set forth.

NY Lawyer [and Law.Com] report that a Texas business owner has sued Weil Gotshal & Manges over its handling of a Texas credit union acquisition.

"Dallas businessman has sued Weil, Gotshal & Manges, alleging that the firm and two of its partners took advantage of him as a client by lessening his interest in a deal while he was undergoing treatment for cancer.

In David M. Radman, et al. v. Richard M. Boyd, et al., Radman — individually and as trustee of the DMR Trust — and CU Commercial Services LLC allege that the firm and two of its Dallas partners, Michael A. Saslaw and Robert C. Feldman, conspired with Radman’s then-business partner and others to reduce Radman’s interest in a proposed acquisition of a Dallas-based credit union subsidiary.

In his Dec. 12 petition filed in the 160th District Court in Dallas, Radman also names as defendants his business partner, Richard M. Boyd; Dallas-based Texans Credit Union; TCU’s president and CEO, David Addison; Texans Commercial Capital LLC; and Credit Union Liquidity Services LLC.

Radman’s petition also alleges the following against Weil, Saslaw and Feldman: breach of contract, breach of fiduciary duty, fraud, negligent misrepresentation, professional malpractice, violation of the Texas Deceptive Trade Practices Act, conversion, tortious interference with existing and prospective contracts and civil conspiracy to commit harm. "

Legal malpractice cases against the criminal defense attorney are confusing.  In addition to all the other elements, in NY one must prove actual innocence or exoneration.  When the statute begins to run [date of malpractice, date of last representation, date of final judgment, date that post-conviction motion decided, reversal or exoneration] is a difficult call. 

McNight  v. Office of Public Defender.  This NJ case is remarkable for several reasons.  The first is a discussion of how an attorney, "on a busy Wednesday plea day" simply forgot to ask his client whether he was a US citizen and how a misdemeanor conviction would impact him.  Here, it led to a deportation order, and when Trinidad would not take him back, imprisonment without end.

The second reason is the legal aid attorney’s willingness to admit his wrong.  Sometimes, it seems that criminal defense attorneys are much more willing than other attorneys to admit they made a mistake, if it helps the client get a new trial or get his plea back.

For us, the most important reason is the compelling discussion of the state’s different positions on how to handle a criminal defense legal malpractice case.  More tomorrow.

Here is a well-written decision by NY Supreme Court Justice Stallman on a very complicated question of attorney-client privilege, confidentiality, issues of whether there was an attorney-client relationship, and how to resolve the competing rights of discovery, business secrets and confidentiality. 

Hélie v McDermott, Will & Emery ,2007 NY Slip Op 27523 ,Decided on December 17, 2007 ,Supreme Court, New York County ,Stallman, J.

"In this legal malpractice action, plaintiff Marc Helie claims that defendant John J. Sullivan, a partner in the law firm of defendant McDermott, Will & Emery, failed to disclose an alleged conflict of interest while Sullivan was allegedly representing plaintiff and acting as outside corporate counsel to Gramercy Advisors, LLC and related entities. Plaintiff alleges that, in June 1998, Sullivan represented him in connection with the formation of Gramercy Advisors, LLC and related entities. In January 2000, non-party Jay Johnston purchased a 30.43% interest in the business, which resulted in amendments to Gramercy’s original operating agreement. Plaintiff alleges that, during the drafting of those amendments, Sullivan allegedly advised plaintiff that, in the event of plaintiff’s resignation, his resignation would not be considered "an event of dissociation" under the operating agreement, which would trigger a payment based on a specified formula. Plaintiff alleges that Sullivan advised plaintiff that his interest in Gramercy upon resignation would reflect current market value. Plaintiff claims that, on the basis of that advice, Helie executed the revised operating agreement. Plaintiff claims that, during the drafting process and in rendering the alleged advice, Sullivan was acting as plaintiff’s attorney. "

Read the balance of the decision for Justice Stallman’s discussion of the competing rights of the litigants.

In this NY Lawyer’s blurb, we see th outcome of a new variety of legal malpractice action:  a sort of secondary liability suit in a transactional setting.

"A New York appeals court has thrown out a lawsuit against Seward & Kissel over the law firm’s representation of failed hedge fund Wood River Partners.

A group of institutional investors had charged that the law firm shared blame for an alleged fraudulent scheme in which investors were misled about the fund’s holdings, 60 percent of which turned out to be in one small technology company named EndWave Corp. That company’s stock collapsed in July 2005, triggering the investors’ claimed $200 million in losses.

But the Appellate Division, First Department, ruled yesterday in Eurycleia Partners v. Seward & Kissel, 600704/06, that the law firm’s preparation of Wood River’s offering memo did not constitute a representation, fraudulent or otherwise, to the investors.

The court noted that Seward & Kissel’s work for the fund was focused on the fund’s formation and its taxes and not its investment strategy. The appellate panel also found that the investors had no relationship with Seward & Kissel as Wood River’s counsel that would impose a duty on the firm to investors.

The court dismissed claims against Wood River’s auditor, American Express Business & Tax Services, on similar grounds. "