Pro-Bono work at Big Law or at Big Companies in house law departments has radically increased over the past 10 years.  One reason is the availability of legal malpractice insurance.  Here is an interesting article on the current status:

"Q: How successful has the challenge been?

A: Anecdotally, we know that more companies are getting involved in pro bono. Dozens are putting formal programs in place. We have an annual report for signatories that we’re sending out this fall. It asks about the level of participation in their legal departments, the kinds of projects, if they’re keeping [track of their pro bono] time, and about their partnerships with public interest organizations and law firms. We’ll hopefully have answers by February.

Q: You called it a challenge for a reason: In-house departments face obstacles in doing pro bono that law firms don’t. Were there any issues you weren’t expecting?

A: The right fit can be a tough issue. Take Tyson [Foods Inc.,] and Wal-Mart [Stores Inc.]. Both are headquartered in rural areas with a fairly narrow range of legal needs. There’s not necessarily a great fit between the skills of the legal department and the needs of the local community. And we learned from Intel [Corp.] that there’s a whole group of lawyers who are licensed to practice, but not in the jurisdiction where they’re located. There are very few states where lawyers who are not [locally] licensed can do pro bono easily.

Q: Which companies really succeeded with the challenge?

A: Intel is a great model because it has such a well-planned program. They [used requests for proposals to find law firm partners, and] tied pro bono work to areas of interest in the department and company as a whole. They started in their [Santa Clara, Calif.,] headquarters, but have expanded to other offices as well.

Q: For a while it seemed that companies weren’t doing pro bono because they thought the costs were prohibitive. What changed?

A: Before, they just didn’t know what was available to them. When companies started doing pro bono, malpractice insurance was always something they asked us about. [In-house lawyers are not always insured for malpractice.] Today, the areas on our Web site that cover malpractice are probably the most accessed. A company can work with a program that provides the coverage, purchase a rider, or get malpractice insurance for about $3,000 a year for the whole company. "

Service of process cases turn on the facts, and generally do not provide either generalized rules or sweeping policy arguments,  Here is a case in which the attorney’s door was locked, there was no answering machine and nothing personalized about the place except a shingle.  Not exactly a downtown NYC type of office.

"According to an affidavit of service dated September 9, 2004, the process server attempted to serve the defendant with a copy of the summons and complaint in the legal malpractice action at his actual place of business on August 23, 2004, at 10:00 A.M. The process server observed the defendant’s name on an outside shingle, but the office was closed, locked, and without a doorbell. The process server used his cellular phone to call the number listed on the outside shingle and received neither a personal reply nor an answering service reply. Nonetheless, that same day the process server mailed the summons and complaint to the very same premises in order to ostensibly effectuate "nail and mail" service. On the following day, August 24, 2004, the process server returned to the same location at 9:00 A.M. and, upon seeing that the conditions were the same as the day before, affixed the summons and complaint to the door.

Although the building at which process was purportedly served was in fact owned by the defendant and/or his wife, and was used as both a law office and an office to collect rents and issue leases for their other properties, the defendant was, in fact, suspended from the practice of law at the time of the attempted service of process.

Service of process must be made in strict compliance with statutory "methods for effecting personal service upon a natural person" pursuant to CPLR 308 (Macchia v Russo, 67 NY2d 592, 594; see Dorfman v Leidner, 76 NY2d 956, 958). CPLR 308 requires that service be attempted by personal delivery of the summons "to the person to be served" (CPLR 308[1]), or by delivery "to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode" (CPLR 308[2]). Service pursuant to CPLR 308(4), commonly known as "nail and mail" service, may be used only where service under CPLR 308(1) or 308(2) cannot be made with "due diligence""

New York Lawyer, an offshoot of Law.Con brings this story:

"Two inventors of snowboard bindings accuse their lawyers at Seyfarth Shaw and Burnett, Burnett & Allen of doing a legal face plant that caused them to lose a patent infringement case.

In a lawsuit filed in Santa Clara County, Calif., Superior Court last month, Richard and Brandt Berger accuse the lawyers of negligence and fraud and claim to have suffered damages of more than $75 million. On Wednesday, the suit was removed to the Northern District of California, following rulings by the U.S. Court of Appeals for the Federal Circuit on Monday on the appropriate jurisdiction for IP malpractice claims.

The plaintiffs allege that IP veteran Jack Slobodin, a former Seyfarth partner, provided the court with a "fatally defective" claim chart prepared by his firm, then blamed the mistake on an attorney "that was handling it before" him. In February — one month after the patent case in question, Berger v. Rossignol, finished up — Slobodin left Seyfarth to join Gordon & Rees as of counsel.

A Seyfarth spokesman said Slobodin left of his own accord, but declined to comment on the suit. Lawyers for Seyfarth and Slobodin from Keker & Van Nest also declined to comment on the case.

The infringement suit was filed in 2005 with the help of San Jose, Calif., attorney Douglas Allen of Burnett, Burnett & Allen. Seyfarth provided Allen with a claim chart for the binding, but the Bergers say that the chart — which was to detail each point of the alleged infringement — was erroneous. "

We originally reported this case on  9/28.  Here is a well written decision concerning Akin Gump in which some causes of action are dismissed.  Tott, Contract, Fraud, Fiduciaries…how do all of these different theories of liablitiy interact?  Read on:

The Case:

"Defendant’s motion, pursuant to CPLR 3211 (a) (7), to dismiss plaintiffs’ second, fifth and ninth causes of action, for gross negligence, the third cause of action for negligent misrepresentation and the seventh cause of action, for breach of fiduciary duty, as redundant of the legal malpractice claims, is granted. It is well settled, in this Department, that gross negligence, negligent misrepresentation, and breach of fiduciary duty claims, arising out of the same set of operative Facts, and seeking the same damages or relief, as a viable legal malpractice claim, are redundant, and subject to dismissal pursuant to CPLR 3211 (a) (7) (see Weil, Gotshal & Manges, LLP v. Fashion Boutique of Short Hills, Inc., 10 AD3d 267 [1st Dept 2004]; InKine Pharmaceutical Co., Inc. v. Coleman, 305 AD2d 151 [1st Dept 2003]; Mecca v. Shang, 258 AD2d 569 [2d Dept 1999]). As accurately outlined by defendant, the second cause of action asserted in plaintiffs’ complaint for gross negligence, and the third cause of action for negligent misrepresentation, arise out of the identical Facts, and seek the same relief as plaintiffs’ first cause of action for malpractice. The fifth cause of action for gross negligence and the seventh cause of action for breach of fiduciary duty arise out of the same operative Facts, and seek the same relief, as the fourth cause of action for malpractice, and the ninth cause of action for gross negligence arises out of the same Facts, and asserts damages identical to the Facts and damages alleged under the eighth cause of action for legal malpractice. Plaintiffs’ argument, that the claims should be reviewed under Texas law, does not mandate a different result (see Camp v. RCW & Co., Inc., 2007 WL 1306841, *5 [SD Tex 2007], quoting Goffney v. Rabson, 56 SW 3d 186, 190 [Tex App, Houston 2001]["Texas law does not permit a plaintiff to divide or fracture her legal malpractice claims into additional causes of action"]; see also Aiken v. Hancock, 115 SW 3d 26, 28 [Tex App, San Antonio 2002]; Ersek v. Davis & Davis, P.C., 69 SW 3d 268, 274 [Tex App, Austin 2002]). Plaintiffs’ request for leave to amend the eighth cause of action is denied, as the proposed amendment does not cure the redundancy (see Feldman v. Jasne, 294 AD2d 307 [1st Dept 2002]; Bencivenga & Co. v. Phyfe, 210 AD2d 22 [1st Dept 1994]).

That portion of defendants’ motion which seeks partial dismissal of plaintiffs’ sixth cause of action for fraud, on documentary evidence, pursuant to CPLR 3211 (a) (1), is denied. On a motion pursuant to 3211 (a) (1), the court must accept the complaint’s factual allegations as true, according plaintiffs the benefit of every possible favorable inference, and dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law (Arnav Indus. Inc., Retirement Trust v. Brown, Raysman, Millstein, Felder & Steiner, LLP, 96 NY2d 300, 303 [2001]; Leon v. Martinez, 84 NY2d 83, 87-88 [1994]; Weil,, Gotshal & Manges, LLP v. Fashion Boutique of Short Hills, Inc., 10 AD3d at 271-71). The documentary evidence relied upon by the defendant in this matter consists of a June 28, 2004 letter executed by McBride on behalf of the Veras entities, and by McBride, Larson and Virginia in their individual capacities, acknowledging the existence of potential conflicts of interest, including but not limited to those alleged in the instant complaint. Defendants also annex various drafts of the letter. All drafts were prepared in or around June 2004, after the individual plaintiffs retained independent counsel.

The document, executed nearly a year after the investigations commenced, has little probative value with respect to plaintiffs’ allegations that, when Akin Gump undertook plaintiffs’ defense in or around September 2003, it knowingly and purposefully failed to disclose inherent and nonwaivable conflicts of interest, or with respect to acts occurring prior to the negotiation or execution of the letter. Plaintiffs’ allegations also raise issues of fact with respect to whether the consent letter is effective in these circumstances (see Kelly v. Greason, 23 NY2d 368, 378-79 [1968][in certain situations, there can be no effective consent]; see also, e.g. Parklex Assoc. v. Parklex Assoc., 15 Misc 3d 1125(A), 2007 WL 1203617, *5 [Sup Ct, Kings County 2007][attorneys could not rely on purported waiver of conflict of interest where such conflict could subject an attorney to disciplinary action under DR-105, 22 NYCRR §1200.24(c)]; Booth v. Continental Ins. Co., 167 Misc 2d 429, 439 [Sup Ct, Westchester County 1995][full disclosure and consent does not insulate an attorney where the conflict of interest affects or appears to affect the attorney’s obligations]). Finally, in light of defendant’s failure to demonstrate a right to relief based upon documentary evidence, it is not necessary, at this time, to address the issues of fact raised by plaintiffs’ belated claims of coercion."

Here is an appellate decision in the DuPont environmental and cancer case.  There is no mention of legal malpractice here.  Note however, the precluded experts, the precluded documents, and how the dissent paints the majority as corporate lackeys.

The case:"Glen Strong (Strong) and his wife, Connie, collectively "the Strongs," were among thirty-seven plaintiffs who filed suit in the Circuit Court of Jones County, Mississippi, Second Judicial District, against E.I. DuPont de Nemours Corporation (DuPont) in December 2002, in the matter of Govan v. DuPont, et al., Cause No. 2002-376-CV12. The Strongs did not have an individual complaint.1 At the same time, a larger group of approximately 2,200 plaintiffs filed a separate complaint against DuPont in the matter of Lizana v. DuPont, et al., Cause No. 2002-377-CV12, alleging similar injuries as in the Govan complaint. In fact, the only major difference in the two complaints was that the plaintiffs’ names were different.

¶ Two Mississippi residents also were named as defendants in the complaints, namely Waste Management of Mississippi and G.B. Boots Smith Corporation, a Laurel trucking company used to fix venue in Jones County, Mississippi.2 DuPont immediately removed the Govan and Lizana cases to federal court. DuPont alleged the fraudulent joinder of Waste Management and Boots Smith. The federal court remanded the Govan and Lizana cases to the trial court in February 2004.

I. Striking DuPont’s experts.

¶ This appeal follows a laborious and highly contentious discovery process during which the trial court struck nine of DuPont’s witnesses, including the majority of its designated experts. The trial court determined that "based upon the record, the history of abuses in this case, and pursuant to Miss. R. Civ. P. 37(b)(2), 37(e), Rule 11 and the court’s inherent powers to impose sanctions on those who abuse the Mississippi Rules of Civil Procedure, the Court finds that DuPont has indeed abused the Mississippi Rules of Civil Procedure."

¶ In its order in cause number 2005-M-01583-SCT dated August 16, 2005, this Court already ruled on DuPont’s emergency petition for interlocutory appeal and motion for stay regarding the trial court’s ruling to strike its experts, stating:

Petitioner seeks relief from the trial court’s order striking certain report and fact witnesses from participation in the trial scheduled for August 17, 2005. The Court finds that the trial court granted the motion to strike these witnesses as a sanction for petitioner’s prior abuse of the discovery process. The Court therefore finds that the emergency petition for interlocutory appeal and motion for stay should be denied. "

"DIAZ, PRESIDING JUSTICE, DISSENTING:

¶ One would never know from reading the majority the basis of Strong’s claims against DuPont: that for years DuPont knowingly deposited tons of toxic material into the waters of Bay St. Louis; that according to the United States Environmental Protection Agency (EPA), the DeLisle plant is the second largest emitter of potentially-carcinogenic dioxins in the country; that DuPont was aware of the risks associated with human exposure to these toxins since at least 1983; and that Glen Strong incurred roughly $675,000 in medical bills for treating his cancer which developed after living his entire life in close proximity to the plant and eating contaminated seafood from the bay. In light of these facts, and the thousands of pages of documentation supporting his claims, the "errors" found by the majority can hardly be deemed reversible.

¶ Today’s case is yet another example of this Court’s willingness to overturn a jury verdict when individuals have been awarded large damages against corporate defendants. In the last two years, this Court has been asked to consider at least eight cases involving large damage awards in favor of individual plaintiffs, and seven of these cases have been reversed. Mariner Health Care, Inc. v. Estate of Edwards, 2007 Miss. LEXIS 520 (Miss. Sept. 13, 2007) (reversing $6.5 million jury award against nursing home); Horace Mann Life Ins. Co. v. Nunaley, 960 So. 2d 455 (Miss. 2007) (reversing $1.9 million jury award and rendering judgment in favor of life insurance company); Baker, Donelson, Bearman & Caldwell, P.C. v. Muirhead, 920 So. 2d 440 (Miss. 2006) (reversing $1.6 million jury award for legal malpractice and rendering judgment in favor of defendant law firm); Hartford Underwriters Ins. Co. v. Williams, 936 So. 2d 888 (Miss. 2006) (reversing $1.5 million jury award against insurance company); Irby v. Travis, 935 So. 2d 884 (Miss. 2006) (reversing $3.75 million jury award in wrongful death case); GMC v. Myles, 905 So. 2d 535 (Miss. 2005) (reversing $5.4 million award in wrongful death case); 3M Co. v. Johnson, 895 So. 2d 151 (Miss. 2005) (reversing $25 million jury award and rendering judgment in favor of manufacturer). Compare Canadian Nat’l/Ill. Cent. R.R. v. Hall, 953 So. 2d 1084 (Miss. 2007) (affirming $1.5 million jury award against employer). See also Jimmie E. Gates, Justices Void $36.4M Award in Insurance Suit, Clarion Ledger, Oct. 2, 2007, at A1. Yet, despite the substantial evidence in this case supporting a jury verdict in favor of the plaintiffs, the majority finds enough "cumulative error" to warrant a reversal. At some point, we must defer to the finders of fact and stop substituting this Court’s judgment for that of the jury.

¶ For the foregoing reasons, I would affirm the judgment of the trial court. "

As any first year law student can tell you, pleadings are required simply to put the other side on notice of the general proposal of the complaint:  You injured me in tort, by doing "x".  One simply puts the other side on notice, and if they are interested [as they always are], then they ask for discover.

This blog blurb from the Scottsdale blog tells us the current story in Arizona.  His warning?  Use facts, and lots of them.

"There’s a new case out this week from Division Two, Cullen v. Koty-Leavitt Insurance, which deals with the reasonable expectations doctrine in the UIM setting. The case is not particularly fascinating from a substantive perspective, but it raises questions about potential legal malpractice exposure.

In sum, Cullen filed a UIM claim based upon the fact that his family was given the right to privately use a business vehicle. The vehicle was owned by the business, Sierrita Mining and Ranch Company, and had UIM coverage with Auto Owners. The named insured was the business, and there were no additional insureds.

Cullen was injured while riding in another vehicle and filed a UIM claim with Auto Owners. The insurer denied his UIM claim, he then filed suit and the trial court dismissed the action.

First, the Court of Appeals expressly adopted the Supreme Court’s holding in Bell Atlantic Corp. v. Twombly, the case that overruled the familiar Conley v. Gibson standard for dismissal.

This is a significant move and one wonders how the Arizona Court of Appeals, which is bound to follow the Arizona Supreme Court on such matters, saw fit to disregard the Arizona Supreme Court and unilaterally adopt the United States Supreme Court’s Twombly holding. In any event, doubt no further, the "notice pleading" landscape has changed in Arizona as follows:

"While a complaint attacked by a Rule 12(b)(6) . . . motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Instead, the complaint’s "[f]actual allegations must be enough to raise a right to relief above the speculative level."
The Court stated "when a complaint fails to recite at least the basic facts supporting a claim for relief, we cannot see how a defendant would have fair notice of the nature and basis of the claim." "

From NY Lawyer we get this report:

"Pillsbury Winthrop Shaw Pittman partners Paul Tummonds Jr. and Patrick Potter are the targets of a $50 million malpractice complaint filed by former client Capitol Hill Group.

According to the complaint filed on September 7 in D.C. Superior Court, the plaintiff owned property at 700 Constitution Ave. N.E., leased to a nursing home and a hospital. At issue was the number of parking spaces needed.

Initially, the city said 85. When a neighborhood group appealed, Capitol Hill Group tapped Tummonds and Potter for help. According to the complaint, the D.C. Board of Zoning Adjustment first rejected the appeal. The board reconsidered a portion of its denial, however, and eventually issued a final order requiring 177 parking spots. That was in September 2004.

And now for the rub — Capitol Hill Group claims that its counsel did not inform it of the final order until the spring of 2005. At that point, the property had too few spaces, and the group could no longer appeal. The result, according to the complaint: upwards of $50 million in losses. "

Blogs and trials have been a recent confluence.  Dr. Flee, who blogged his own trial was one [well reported by the New York Personal Injury blog of Eric Turkowitz.

Now, jurors are coming into the mix.  Law.com editor and blogger Robert J. Ambrogi suggests that the failure to root out and research these bloggers could be legal malpractice.

"As blogger Matthew Wheeler sat in a Milwaukee courthouse this week for jury duty, he amused himself with Twitter postings such as "Still sitting for jury duty crap. Hating it immensely. Plz don’t pick me, plz don’t pick me," and "More like Jury DEpreciation Month! So this is Purgatory, eh." Unfortunately for Wheeler, he did get picked for what the <i>Milwaukee Journal Sentinel</i>’s Proof and Hearsay blog describes as "the mother of all trials" — a six-week lead-paint injury case. But at least the lawyers in the courtroom knew of Wheeler’s blog and Twitter postings before he was selected. Circuit Court Judge Richard Sankovitz had decided at the outset to ask all potential jurors, "Do you blog?"

Then there is the Chicagoland blogger known only as Erin, who posted earlier this month that "somebody actually put me on a jury" and "i can’t wait to decide the lives and deaths of men tomorrow." After Robert W. Kelley wrote about her at his Florida Jury Selection Blog, she answered back with a post captioned, dear members of the florida bar: welcome to my shitty blog. Kelley said that Erin’s blog was pointed out to him by jury consultant Amy Singer, who wrote, "This blog post illustrates the necessity of online searching venire panelists for information."

These two recent examples of blogging jurors demonstrate that there is no longer any question of the need for lawyers to ask potential jurors if they are writing online, says another jury consultant, Anne Reed, writing at her blog Deliberations. The question now, she says, is not whether to ask, but how. "There are nearly countless ways a juror could be writing on line," she explains. "You need some sense of the landscape to ask about them, or you’ll get partial answers or answers you don’t understand." To that end, she offers the first in what she says will be a multipart guide for lawyers to the world of social networking.

As for Erin, her perspective on all this may be the most prescient. Acknowledging the to-do over blogging jurors, she comments:

"okay i didn’t write my thesis on psychometrics or anything (yes i did) but i bet if you dismissed every potential juror with some type of internet presence you would end up with range restriction galore. EVERYBODY UNDER THIRTY IS ON THE INTERNET. those are my peers." "