Reported in today’s NYLJ, this is a convoluted case.  Plaintniff was misdiagnosed with breast cancer and underwent unnecessary mastectomy.  Her medical malpractice case was handled by the Morelli firm, and was dismissed on the statute of limitations, at the pleading stage.

The legal malpractice case followed, and has now survived two motions to dismiss.  The bottom line in the latest decision is that the med mal attorneys handled the case for three years, and are hard pressed to argue that it had no merit;  similarly, they had "something" to do with the pleadings, and may not now argue that the pleadings lacked merit.

 

Here is an Illinois legal malpractice case which illustrates the problem in bringing a legal malpractice case after a settlement in which the client has agreed that she understands the settlement, and agrees to it.  Add to this mix, the sometimes question, "are you satisfied with your attorney’s handling of the case? 

The issue is whether the client also understood that there were shortcomings in discovery, in explanations to her, in investigation and reporting to the client of the applicable law or assets of the other side, when coming to a settlement.  Here, the client in a divorce action agreed to a settlement and then sued her attorney, alleging that there was insufficient investigation of her husband’s assets, etc.  Accordingly, her  settlement, although she understood it, was based upon insufficient evidence, or "effectively compelled" by the attorneys preparation.

This is a twistedstory.  There are two reasons why this report is so out of the usual.  First, the defendant is not a US attorney.  He says that he is an attorney in Mexico, has an office in DC, where foreign attorneys may practice without a bar admission and he is then permitted to piggyback to practice law elsewhere.

The second reason is found in the story: "Attorney Thomas J. Henry filed the lawsuit Oct. 8 on behalf of Paloma Steele of Corpus Christi. Henry ran television ads last month alleging Celis was not licensed to practice law anywhere.

We have never seen television ads in aid of litigation.  Has anyone?

"Celis testified in an unrelated case in May that he was not licensed in Texas or any other state but is an attorney in Mexico. He said his law firm, CGT Law Group International, was incorporated in Washington, D.C., where laws allow non-lawyers and foreign lawyers to operate. Once established there, firms can transfer the right to operate to other states, Celis said.

Henry said Friday he would not disclose details of the case that prompted the lawsuit.

"It’s an extremely serious case," Henry said.

Robert Vargas, Nueces County Court at Law No. 1 judge, recused himself from the case. Presiding Judge J. Manuel Bañales assigned Kleberg County Court at Law Judge Martin Chiuminatto Jr. to hear the case. No hearing has been set.

Celis, who regularly donated to Democratic causes in South Texas and nationally, was thrust into the limelight last month through a series of bizarre events.

On Sept. 15, a nearly nude woman fled his Kings Crossing home and Celis appeared on the scene flashing a Duval County sheriff’s badge, asking that the woman be turned over to him, according to police reports. Celis’ law enforcement credentials expired in 2003. Henry’s commercials started airing shortly afterward, and Celis sued Henry and local television stations but later dropped the suit.

The Attorney General’s Office sued Celis on Wednesday, alleging the law firm Celis operated broke the law in allowing him to take a share of profits."

We love rock and roll, and realise it did not end with Steely Dan.  Here is a Milwaukee group, well known [?] there, who eventually sued its manager, and now successfully sued its attorney.  The story:

"The long nightmare that has plagued the BoDeans is over. For nearly five years, the Milwaukee rock group was entangled in legal woes that drained their creative spirit and played havoc with their personal lives

Last week, the group reached a settlement with its former lawyer, ending a legal malpractice case that the BoDeans had filed. The settlement was for an undisclosed amount of money, but Milwaukee County Circuit Judge Jean DiMotto had ruled that there had been negligence on the part of the lawyer, Linda Mensch of Chicago. The trial that was supposed to have started last week was only to determine the amount of damages"

One would initially think that a communication between client and attorney on an issue arising from the attorney’s representation of the client would be privileged.  In this case, recently decided by Justice Charles E. Ramos of Supreme Court, New York County, the privilege was waived.

"On August 10, 2005, BI’s counsel, Marvin Wexler of Kornstein Veisz Wexler & Pollard, LLP ("KVW"), sent a letter to plaintiff’s counsel, Stuart Kagen of Paul, Weiss Rifkind Wharton & Garrison LLP ("PW"), asserting that BI was in possession of e-mail correspondence between Dr. Scott and PW pertaining to Dr. Scott’s dispute with BI, as well as e-mails written between Dr. Scott and Cohen Lans LLP regarding a separate dispute. The letter further stated that although no one at BI had read the e-mails yet, BI believed that any potential privilege attached to the communications had been waived by use of BI’s e-mail system.

Mr. Kagen responded on August 15, 2005, informing Mr. Wexler that the documents are privileged communications belonging to Dr. Scott for which there had been no waiver of privilege and requesting the immediate return of the e-mails to Dr. Scott.

When BI refused to return the documents, the parties called Andrea Masley, the Judge’s Court Attorney, who instructed BI to provide copies of the e-mails to Dr. Scott, place copies of [*2]the documents into a sealed envelope and bar anyone from reviewing the e-mails pending a resolution by the Court. Thereafter, Dr. Scott filed this motion for a protective order seeking the return of the documents.[FN4]

Dr. Scott argues that the e-mails are privileged under both the attorney client privilege and work product doctrine. BI counters that the e-mails were never protected by the attorney client privilege because Dr. Scott could not have made the communication in confidence when using BI’s e-mail system in violation of BI’s e-mail policy. BI also argues that both privileges were waived by Dr. Scott’s use of BI’s e-mail system.

The final factor is whether Dr. Scott had notice of the policy. Dr. Scott had both actual and constructive knowledge of the policy. BI disseminated its policy regarding the ownership of e-mail on its server to each employee in 2002, including Dr. Scott and provided internet notice. See Garrity v John Hancock Mutual Life Ins. Co., No. Civ Action 00-12143-RWZ, 2002 WL 974676, at 1 (D Mass, 2002)(Company e-mail policy precluded reasonable expectation of privacy despite employee’s claim that policy was hard to find on company intranet).

Dr. Scott’s effort to maintain that he was unaware of the BI e-mail policy barring personal use is rejected. As an administrator, Dr. Scott had constructive knowledge of the policy. Perez Moya v City of New York (9 Misc 3d 332 Sup Ct, Kings County 2005)(Superintendent’s knowledge of the residency of child imputed to the City); Polidori v Societe Generale Group., 236 NYLJ 112 (Sup Ct NY County 2006) (Knowledge of sexual harassment will be imputed to employer if supervisor of a sufficiently high level is aware of the harassment), affd, 39 AD3d 404 (1st Dept 2007). He required newly hired doctors under his supervision to acknowledge in writing that they were aware of the policy. Under these circumstances, Dr. Scott is charged with knowledge of the BI e-mail policy.

Alternatively, Dr. Scott argues the e-mails are privileged work product. The work product doctrine provides a qualified privilege against disclosure for materials prepared by an attorney in anticipation of litigation. CPLR 3101(c). The issue is whether the work product privilege was waived. Under New York State law, work product is waived when it is disclosed in a manner that materially increases the likelihood that an adversary will obtain the information. See Bluebird Partners, L.P. v First Fidelity Bank, N.A., New Jersey, 248 AD2d 219, 225 (1st Dept. 1998). While an inadvertent production of a privileged work product document generally does not waive the applicable privilege, there is an exception to that rule if the producing party’s conduct "was so careless as to suggest that it was not concerned with [the] protection of [the] asserted privilege." Critical to this determination is the reasonableness of the precautions taken to prevent inadvertent disclosure. SEC v Cassano, 189 FRD 83, 85 n.4 (SDNY 1999). "

There’s not a lot to comment on in this story.  Simply count up the legal malpractice issues: conflict of interest, attorneys switching sides, surreptitious spying, computer hacking on attorney-client e-mails…

"By the time it was finally hauled into court last year, it had all the ingredients of a cheap detective novel: the millionaire husband of a seductive singer and the P.I. he’s paying to tail her; hidden (and possibly tax payer-funded) cameras; hacked computers; two-bit lawyers who’ll even turn on their own clients if the retainer is juicy enough; and at the heart of it all, lots of money up for grabs. The case is still in litigation, the attorneys and litigants tight-lipped, and what can’t be deduced from the public record at the courthouse is left to swirl in the air of bridge club gossip.

Presumably, Stella Black–recognizable to many as the busty brunette in the Whit-Ash Furniture commercials– had no idea that her husband had been conspiring to leave her for months. Nor, she claims, could she have known that he had fully infiltrated her music career and that her confidante and talent agent as well as her entertainment lawyer were both working clandestinely on his payroll to spy on her, according to one affidavit.

Stella Black’s affidavit repeatedly refers to a private investigator named Edwards and her pending legal malpractice suit in common pleas court against Whit-Ash names one Jim Edwards as a defendant. According to court documents, Edwards installed hidden cameras “that were secretly mounted at and around Plaintiff’s residence” in Forest Acres. 

Phillips allegedly began forwarding Stella’s private emails and secret transcripts of her meetings with attorneys to Black and his crew. Later, she claims, they set up a wide area network (WAN) that connected Whit-Ash computers to her home computer so they could have unfettered access to her hard drive and email.

Phillips also allegedly installed Spector Pro software on her laptop to capture every keystroke and create screen shots of Stella’s emails to her attorneys. And when the preliminary divorce proceedings were underway, Stella looked up to see none other than her entertainment lawyer, Rebecca West, representing Whit. She believes it had been planned all along ."
 

It’s perplexing to get a motion to dismiss, founded on the argument that while there may have been negligence, there is no proximate damage.  It’s perplexing, because, while a truism, it rankles.  When an attorney has made a mistake, his defense of "no harm- no foul" disturbs.  Here is Day on Torts with a Michigan Case on this issue.  Here, the attorneys messed up the appeal, but, as the appeal could not have been won anyway,..

Here is a simple, short article that covers a wide set of damaged individuals.  Hurt here are: plaintiff, defendant and witness.

"A Fayetteville woman was awarded more than $360,000 in both actual and punitive damages in a civil malpractice suit she filed against a local attorney.

A Fayette County State Court jury handed down the verdict against Daniel Richard Hayes Oct. 16 after a two-day trial.

Hayes, of Jones Circle, Fayetteville, also was held in contempt of court for inappropriately questioning a witness during the trial despite warnings not to do so by State Court Judge Fletcher Sams, according to court records. Hayes paid a $200 fine, escaping a two-day jail sentence for the transgression.

In the suit, Betty Goza claimed that she retained Hayes via a contract several months after she was injured in an automobile crash that was the subject of the suit. Goza claimed that Hayes failed to properly serve the defendants with notice of the suit, and he also failed to notify her when the suit was dismissed because the two-year statute of limitations had expired. "

Here is a worthy article on Judicary Law section 487 by  Norman B. Arnoff and Sue C. Jacobs in  the October 24, 2007 New York Law Journal.  It should be read by attorneys, as this statute applies to them alone.

"Lawyers are officers of the court, as such, they must be ethically responsible not only in the courtroom but in all aspects of their professional lives. The omnipresence of the attorney’s ethical obligations assures that the law will be soundly interpreted and applied.

In order to guarantee lawyers have a heightened consciousness for their professional and ethical obligations inside the courtroom and beyond, there are several statutes and court rules to which members of the bar should pay serious attention.

A serious point for consideration by every member of the New York Bar is Judiciary Law §487, which provides:

An attorney or counselor who:

1. Is guilty of any deceit or collusion, or consents to any deceit or collusion with intent to deceive the court or any party, or

2. Willfully delays the client’s suit with a view to his own gain, or willfully receives any money or allowance for an account of any money which he has not laid out, or becomes answerable for

Is guilty of a misdemeanor, and in addition to the punishment prescribed therefore by the penal law, he forfeits to the party injured treble damages, to be recovered in a civil action.

The statute is intended not merely to deter litigation abuse but the misuse of client funds in connection with litigation. The statute covers a lawyer’s deception of the court or any party to the litigation including the lawyer’s client or a party not represented by the lawyer whose conduct is in issue. The statute’s intent is to deter serious misconduct that possibly rises to the level of criminality and as a result subjects the lawyer to treble damages to the injured party in a civil action. "

This is a sordid story of a professor who was barred from teaching at a university.  He was accused of making rather coarse sexual comments to students, many of them. While litigating over his potential dismissal, a letter was sent to one witness with a photocopy of the definition of perjury and a suggestion of how she could purge herself of that problem.  To make matters worse, a similar letter was sent to the university secuity department alleging that the witness had committed perjury on campus.

Judge Diamond, of Supreme Court, New York County levied significant sanctions on client and attorney. As the NYLJ reports :

"Mr. Kalyanaram’s attorney, Mr. Richman, sent a letter to Ms. Cui that "attached a copy of the penal statute regarding the crime of perjury and then proceeded to advise her that if her allegations against petitioner are untrue, she could be guilty of such a crime," according to the decision.

The letter also stated that "if she changed her affidavit to rectify any untrue statements, she may have a defense to a perjury charge."

Mr. Richman sent a second letter to the directors of the institute’s security, which stated he believed Ms. Cui had committed perjury on the school’s premises.

Petition Denied

In a decision issued last week, Justice Diamond denied Mr. Kalyanaram’s petition for reinstatement and granted the school’s motion for sanctions.

"The petitioner’s claim herein turns on the sole issue of whether the respondent, in dismissing him prior to the conclusion of the grievance and arbitration process, breached the terms of the governing collective bargaining agreement," Justice Diamond wrote. "The respondent’s letter to the petitioner specifically stated that . . . he was to remain on the payroll at his regular salary until a final determination had been rendered. Thus, the respondent expressly recognized that petitioner remained an employee until the conclusion of the grievance and arbitration process."

In addition, in a scathing analysis of the sanctions issue, the court again found against Mr. Kalyanaram and his attorney Mr. Richman.

"Such threats cannot be countenanced," Justice Diamond wrote. "They are an inappropriate and reprehensible attempt to influence a proceeding and obtain an outcome therein through extra-judicial means. Indeed, the threats are particularly pernicious because they carry the real possibility that even a witness who is otherwise entirely truthful will refrain from giving such testimony in order to avoid being the target of a criminal investigation."