In NY a convicted criminal defendant may not successfully sue his criminal defense attorney…unless he is exonerated.  That, or a reversal of the conviction [the ability to demonstrate "innocence"] is necessary.  In Wisconsin, the rule is in flux.  Here is a case which discusses, without deciding, when the statute starts to run: on the date of the mistake or on the date of the exoneration.  Instead, Wisconsin borrows the Pennsylvania statute of limiations, and dismisses the case.

STATE OF WISCONSIN
IN COURT OF APPEALS
DISTRICT II
Thomas P. Jasin,  v. Michael Best & Friedrich LLP,

"PER CURIAM. Thomas P. Jasin appeals from an order dismissing his legal malpractice action against Michael Best & Friedrich (MBF). The issue is whether the cause of action is time barred under the applicable statutes of limitation. Without addressing whether Wisconsin would adopt an exoneration or two-track rule in determining when a criminal malpractice action accrues, we affirm the order of the circuit court based on the application of Pennsylvania law. " "In Pennsylvania, periods of limitation in a criminal malpractice action begin to run at the time the attorney-client relationship is terminated. Bailey v. Tucker, 621 A.2d 108, 116 (1993). Although Pennsylvania makes actual innocence an element of proof for recovery, it does not make exoneration a prerequisite to the accrual of the malpractice action and the limitation period may expire before the defendant has obtained postconviction relief. Id. at 115 n.12, 13. Jasin’s claims are time-barred under Pennsylvania law. Because we borrow Pennsylvania law regarding limitations, we need not address whether Wisconsin would adopt the exoneration or two-track rule of accrual"

When you start out reading this story, it cleaves to the age old complaint:  Lawyers are less polite, and more business oriented than in the past.  It’s no longer a profession, its a business.  The shocker comes at the end of this particular story:  biglaw litigating lawyer calls Federal Judge anti-catholic !

"Manhattan federal judge has delivered a lengthy manifesto against declining civility in the legal profession in the course of sanctioning law firm Dorsey & Whitney and two of its partners.

Southern District Judge Harold Baer opened his 129-page decision with a discussion of how "naked competition and singular economic focus of the marketplace have begun to infiltrate the practice of law, subordinating the high standards of service, collegiality and professionalism as a result."
"But the lawyer targeted by the judge struck back hard.

"It is hard to take seriously Judge Baer’s alleged concern for professional courtesy when he continues to treat women litigators like second class citizens in his court room, requires attorneys to physically oversee the return of documents in another country within a matter of hours when they are overseas on their anniversary, and sets depositions on Sunday mornings," said Ms. Peters in an e-mail.

"Indeed, when a Catholic lawyer asks for the opportunity to attend church before the Sunday deposition, he mocked the attorney for Catholic observance," she said. "

In New York there is no recognizable discovery rule for the statute of limitations.  For the most part, the statute starts to run on the day of the mistake, although it may be tolled for continuous representation, or fraud [which does not consist of merely hiding the malpractice], but in Delaware there is a specific rule.

Here is a case which discusses the rule and its application. Boerger v. Heiman, Superior Court of the State of Delaware. 

 

Mississippi seems like the wild west of litigation.  When personal injury attorneys here speak of  the Bronx with reverence, it pales in comparison.  Here is a story of big tobacco, big tobacco litigation, big law and big bribes.  This might even be a reason for senatorial resignation!

"An attorney who helped negotiate a multibillion-dollar settlement against tobacco companies in the 1990s and has sued insurers over unpaid Hurricane Katrina claims was indicted in a suspected scheme to bribe a Mississippi judge.

The indictment accuses Richard "Dickie" Scruggs of conspiring to pay the judge $50,000 to rule in his favor in a lawsuit brought by other attorneys who sought fees for work on Katrina insurance litigation.

Circuit Court Judge Henry Lackey reported the "bribery overture" to federal authorities and agreed to assist investigators in an "undercover capacity," according to the indictment.

Scruggs, whose brother-in-law is Republican U.S. Sen. Trent Lott, earned millions from asbestos litigation and from his role in brokering a multibillion-dollar settlement with tobacco companies in the mid-1990s. "

Here is a story from Kentucky.  What caught our interest was the "case so good he couldn’t lose it"

"He has been called the lawyer "sued on both ends" — losing lawsuits filed against him by his client and by the Louisville surgeon his client unsuccessfully sued.

As the Kentucky Trial Court Review put it, Tennessee attorney Laurence Dry was found on one hand to have botched a medical malpractice case "so good he couldn’t lose it" and on the other hand to have filed a case "so bad he never should have taken it."

The paradoxical result is unprecedented in Kentucky, according to the presidents of both Kentucky Defense Counsel, which defends civil cases, and the Kentucky Justice Association, which represents plaintiffs

This attorney fee matter involves a huge real estate famiy fortune.  It recalls the Goldman real estate family divorce.  There the husband proudly declared that he owed his wife only $ 386 milion dollars in equitable distribution, not $ 786 million.  

 In Lawrence v. Miller the attorneys worked on this estate matter for an hourly rate which netted them $ 18 million, and at the same time asked for "gifts."  The Gifts were for $5 Million!  Afterwards, they got the widow to sign a new contingent fee arrangement for 40%.  How did the AD react to this?  They said that the fee was all right for now, and that they could not make a decision without further information.

Ex Parte interviews of Non-party doctors is the subject of todays Court of Appeals Ruling.  Read the entire case, and note the many amicus briefs.  This is a big and important case.  Put simply, Surpeme Court is permitted to direct plaintiff to give defendant HIPPA authorizations which allow defendants not only the records, but the right to speak with prior treating physicians and discuss plaintiff’s medical condition.  Plaintiff is not permitted to hear the discussion, nor be supplied with notes.

Remembering the identical genesis of medical malpractice and legal malpractice, as well as the mirror image "physician-patient" and "attorney-client" privileges, a similar legal malpractice case must soon surface.  There are often several attorneys who represented plaintiff prior to the target defendant, and afterwards, too.  Right now, they may not be interviewed.  Will this last?

 

Law.Com via Newsday reports that Sam Wiley "the colorful Texas billionaire" has sued Milberg Weiss and other class action plaintiff’s law firms for their handling of the Computer Associates class action matter.  Essentially he charges the settled too soon and for too little, in order to grab legal fees prematurely.

"Wyly’s beef? He claims that Milberg and the others left billions on the table by prematurely settling a case so they could bank some $40 million in attorneys fees. The suit was filed in state court in Manhattan and alleges legal malpractice, fraud, unjust enrichment and breach of fiduciary duty. Here’s the story from Newsday.

Newsday reports that Wyly’s lawsuit centers on two shareholder lawsuits filed against CA — one in 1998 following a sharp drop in CA’s share price, and another in 2002 following news of an accounting probe at the company. The plaintiffs law firms effectively dropped the 2002 claims, according to the story. Wyly’s lawyer, William Brewer, told Newsday that the firms’ decision to effectively drop the claims in the 2002 suit “one of the most egregious cases of [legal] malpractice I’ve seen in 23 years.”

In addition to Milberg Weiss, the suit names as defendants Stull, Stull & Brody; Schiffrin Barroway; and Coughlin Stoia. Newsday reached neither the firms nor CA for comment.

Here is a post from NY Lawyer:

In April 2003, Steven Garfinkel, the chief financial officer of DVI Inc., wrote a memo to chief executive officer Michael O’Hanlon about the crushing liquidity crisis facing the health-care finance company and its implications for a pending stock float. The CFO urged his boss to talk as soon as possible to the company’s main outside lawyer, John Healy, a partner in the New York office of Clifford Chance.

As for Clifford Chance, it is now facing two lawsuits in federal court in Philadelphia charging that it participated in the fraud at the company. One is the familiar shareholder class action, which is also targeting Merrill Lynch and Deloitte & Touche. The other suit, however, is by DVI itself, or, rather, the bankruptcy trustee overseeing the fallen company’s estate. Trustee Dennis J. Buckley requested $2 billion in damages from the London-based law firm in a complaint filed in March 2006.

Though they garner fewer headlines, such bankruptcy trustee suits have largely replaced shareholder class actions in the nightmares of law firm managing partners. These suits are often better-funded, better-lawyered and, with the U.S. Supreme Court likely to further limit third-party liability in securities fraud cases, they may soon have a distinct legal edge as well.

"These are the lawsuits firms are most worried about now," said Michael Carlinsky, a partner at Quinn Emanuel Urquhart Oliver & Hedges who is representing Marc S. Kirschner, the bankruptcy trustee of failed commodities brokerage Refco Inc. in a $2 billion suit against the company’s former lawyers at Mayer, Brown, Rowe & Maw, among others.

Indeed, the journey of Enron Corp. law firm Vinson & Elkins illustrates the shifting landscape of law firm liability. The Houston-based firm vigorously fought the high-profile securities fraud suit brought against it by former class action king William S. Lerach, getting off scot-free with a voluntary dismissal in January 2007. But last year Vinson & Elkins quietly paid $30 million to Enron’s bankruptcy trustee, who never formally filed suit against the firm.

Law Firms as Targets

While securities class actions are brought on behalf of shareholders, bankruptcy trustee suits are brought for the benefit of creditors, the biggest of which are usually banks and investment funds. These creditors have grown more aggressive about recouping losses, lawyers say, with trustees acting accordingly. "

This post is about bad lawyering.  While not legal malpractice [in the sense that it mainly involves criminal defendants who cannot sue their attorney in New York or in most jurisdictions]. it is about the US Supreme Court letting the defendant hang while excusing the poor attorney performance. 

"The U.S. Supreme Court in 1984 established new standards for assessing whether a lawyer’s performance was so bad that his client’s right to a fair trial was compromised.

"An accused is entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair," the Court proclaimed in Strickland v. Washington, 466 U.S. 668 (1984).

Twenty-three years later, however, many experts say that the promise of Strickland has gone unfulfilled, with underpaid and overwhelmed lawyers still allowed to give indigent defendants subpar representation.

And now criminal defense lawyers fear the high court is starting to retreat from Strickland itself. On Nov. 5, it agreed to consider Arave v. Hoffman, an Idaho case that will weigh the obligation of lawyers to explain to their clients the consequences of not accepting a plea agreement. "