We will be speaking on this topic througout November, but here is a California case on the subject.  Its lesson:  the client confidence must be in issue.

"Case law does not “require dismissal whenever a law firm defendant suggests that client confidences are threatened,” Guilford wrote (.pdf). “Instead, they require a showing that the case can be tried fairly only by revealing client confidences. Irell represented the cable company and its chairman, uber-rich techie Paul Allen, in acquiring existing cable systems across the country. According to the tentative ruling (which had to assume the allegations are true), one of Irell’s associates mistakenly deleted two paragraphs of a contract, which led to Allen acquiring a type of stock he wasn’t supposed to. That forced Charter to pay Allen “millions of dollars” to undo the damage.

L.A.-based Irell tried to snuff the suit by arguing it could not defend itself without revealing Allen’s client confidences, over his objections. And while Guilford found that very well may end up the case, “the dust of initial posturing has not yet sufficiently settled” to determine whether Irell could mount a defense without breaking privilege.

The court found Irell had not yet pinpointed the specific privileged issues it needs to be able to discuss. "

Here is the story of a convicted ex-accountant who is selling a legal type service to inmates.  Now, he has problems.  Problem one:  he’s not an attorney, and authorities are determining whether he gave legal advice.  Problem two: a group of angry inmates and their families. They are paying big fees for his service to make a motion seeking dismissal and release, all based on a purported jurisdictional glitch back in the Truman era.

"A small Austin company, International Legal Services, advertises that it can free just about any federal prison inmate on appeal, even those who pleaded guilty or confessed — a dubious claim that even the most prestigious law firms would never make.

The key is supposed to be a legal argument, developed by employee Tony Davis, that claims the federal criminal code is invalid because Congress botched key legislation during the Truman administration. As a result, most criminal convictions obtained in the past 59 years should be tossed out, Davis argues.

Davis, however, is not a lawyer. He’s a former accountant who served almost 51/2 years in prison for fraud and money laundering — details International Legal Services fails to disclose to its clients, including about 160 inmates who paid up to $17,500 each for the company’s services, potentially generating fees topping $1 million.

Nor does the company, which Davis said is owned by his wife, disclose that its ballyhooed legal argument has yet to free one inmate since Davis first used it to challenge his own 1998 conviction."

Attorney fees are regulated, and may be most regulated in matrimonial settings.  22 NYCRR 1400 regulates how fees are calculated, how they are billed, and most importantly, what happens if the procedures are not followed.

In this case, Sheresky Aronson & Mayefsky LLP v. Whitmore, 117068/06 ,Decided: October 5, 2007
Justice Doris Ling-Cohan NEW YORK COUNTY Supreme Court , the law firm of Sheresky Aronson & Mayefsky LLP  successfully represented the wife in a matrimonial, and had their fees paid by the husband.  Nevertheless, they wanted a premium for successful conclusion, from the wife, and proposed a $ 150,000 reward.  The wife paid $ 50,000 and then balked.

Law firm loses, for its failures with regard to 22 NYCRR 1400.3.  "22 NYCRR 1400.3 was "’promulgated to address abuses in the practice of matrimonial law and to protect the public’" (Mulcahy v. Mulcahy, 285 AD2d 587, 588 [2d Dept], lv denied 97 NY2d 605 [2001], quoting Julien v. Machson, 245 AD2d 122, 122 [1st Dept 1997]). The requirement that attorneys execute written retainer agreements with matrimonial clients is found not only in the Rule, but also in Code of Professional Responsibility, in Disciplinary Rule (DR) 2-106 (c) (2) (b), which forbids attorneys from collecting "[a]ny fee in a domestic relations matter . . . unless a written agreement is signed by the lawyer and client setting forth in plain language the nature of the relationship and the details of the fee arrangement." It is well settled that an attorney’s noncompliance with the Rule generally precludes the attorney’s recovery of fees in domestic relations matters (see Ackerman v. Gebbia-Ackerman, 19 AD3d 519 [2d Dept], dismissed 6 NY3d 740 [2005]; Bishop v. Bishop, 295 AD2d 382 [2d Dept 2002]). "

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). "