Tort and Contract are alternative explanations of differing duties.  In tort, the duty arises simply from the agreement to perform, and then failing to heed the standard of care, with damages.  In contract, the dury arises from an agreement to perform certain specific tasks.  As an example, the agreement to prosecute an appeal.  when that does not get done, there is both a tort and a contract cause of action.  Here is an article discussing these principals in an Arizona context.

This [and the last?] century seem to be overwhelmingly linked with social changes and legal process.  Law suits have proliferated, there are more lawyers then ever, social change may happen more because of a docket than any other reason.  Here is an example:  the lemon law.  Previously caveat emptor, this simple social protective device has morphed into an industry.

Here is another take on a case we reported yesterday.  A spurious legal malpractice counterclaim and the aftermath.

 

These attorneys, all former Ohrenstein & Brown lawyers, were tenants of the WTC,   The firm received a big WTC payout.  Who were partners, who were not?  That is the question in this case. 

The common link is that these attorneys all do legal malpractice defense work. 

"In a lawsuit filed last year in Manhattan Supreme Court, former Ohrenstein & Brown partners Annmarie D’Amour, John R. Sachs and Philip Touitou charged that five other partners conspired to keep almost $4 million of the insurance money – a huge windfall for the small firm – for themselves, shutting out the firm’s other members (NYLJ, Apr. 28, 2006).

The suit alleges they did this by declaring themselves equity partners and the others non-equity, distinctions the plaintiffs claim had not existed at the firm prior to the arrival of the insurance payout. But the five partners targeted in the suit maintain Ohrenstein & Brown had long operated as a two-tier partnership in which they were the only equity partners and the only ones entitled to the money. The five partners are Manfred Ohrenstein, the former Democratic leader in the state senate; Michael Brown; Christopher Hitchcock; Geoffrey W. Heineman and Abraham Havkins.

Speaking of Sordid settlement techniques, as in the last post, here isa "sharp dealing" estate matter where an attorney was named as executor:

A New Jersey attorney and his client, who last May escaped conviction on charges they unduly pressured an elderly widow to name them as executor and beneficiary of her multimillion dollar estate, now are trying to avoid punitive damages.

A New Jersey appeals court ruled last December that although Ronald Casale and his client, Dr. Ronald Sollitto, could not be forced to pay attorney fees to the beneficiary they effectively disinherited, a jury could still assess punitive damages against them.

Last week, Casale and a lawyer for Sollitto argued to the state Supreme Court that to allow such a remedy would clog the courts and drastically alter the law of trusts and estates.

The case, In the Matter of the Estate of Madeline Stockdale, A-121-06, stems from a challenge to a 2000 will drafted by Casale that named Sollitto, his friend and longtime client, as the chief beneficiary of Madeline Stockdale’s estate and Casale the sole executor. The challenger was the Spring Lake First Aid Squad, which under an earlier will would have received most of the estate.

Casale drafted the later will for Stockdale, a nonagenarian, while she was in a rehabilitation facility recovering from a hip fracture. It was executed on Jan. 3, 2000, a day before she had throat surgery.

The same day, Stockdale also signed a real estate contract — drawn up by Spring Lake, N.J., solo Thomas Foley on instructions from Sollitto — by which she agreed to sell Sollitto her Spring Lake home for $1.3 million. The contract required only a $1,000 initial deposit, followed by a second deposit of $56,000, with Stockdale taking back a purchase money mortgage for the rest. The will drafted by Casale excused Sollitto’s obligation to pay off the mortgage, since as residuary beneficiary the money would go to him anyway.

Settle a big case?  Do it on your own?  Have a little help from inside insurance company employees?  Here is a story of sordid settlement techniques:

"A Texas lawyer indicted for allegedly paying two former employees of The Hartford Financial Services Group Inc. insurance settlement kickbacks has accused the employees of extorting $3 million from him.

Todd Hoeffner, 42, made the accusation in response to a malpractice lawsuit filed against him by his clients. The lawyer accused the two employees of The Hartford of forcing him to pay them $3 million from fees he earned representing 1,000 victims of silicosis. The insurer’s employees threatened to block settlements of the cases if he didn’t pay the bribes, he alleged.

"Employees of The Hartford held hostage the legal rights of Hoeffner and his clients in a plan calculated to enrich themselves," Chris Flood, his lawyer, wrote in papers filed Monday in federal court in Corpus Christi, Texas.

In June, Hoeffner was, himself, charged with bribing two former Hartford claims handlers, Rachel Rossow, 41, of Redding, and John Prestage, 36, of Newington. The three planned to share attorney’s fees obtained from more than $34 million in settlements for Hoeffner’s clients, the government alleged. His clients were exposed to lung-destroying silica dust in their jobs as sandblasters and foundry workers.

Hoeffner, Rossow and Prestage have been charged with conspiracy, mail fraud, wire fraud, conspiracy to commit money laundering and money laundering. "

 

The New York Court system is Byzantine.  There is Supreme Court, Civil Court, District Court, County Court, Surrogate’s Court, and so on.  Where to bring an action?  In Civil Court, of course, the upper limit of jurisdiction is $ 25,000.  In Supreme Court, unlimited.  Defendant attorneys here brought a car case in Civil court, and now have lost summary judgment on whether that was legal malpractice.  Still to come?  Whether there was proximate cause and whether plaintiff passed the car accident threshold. Ironicallythis case too ended up in Civil Court.

David v. Mallilo & Grossman, 300574 TSN 2006 ,decided: September 26, 2007
Judge Manuel J. Mendez ,NEW YORK COUNTY Civil Court

Judge Mendez
OPINION OF THE COURT

"Upon a reading of the foregoing cited papers on this motion for partial summary judgment on liability and this cross motion for summary judgment dismissing the complaint it is the decision and order of this court that the motion is granted to the extent of finding defendants negligent as a matter of law, the cross motion is denied.

FACTUAL BACKGROUND

Plaintiff brings this legal malpractice action against the defendants for their failure to file a summons and complaint in the Supreme Court of the State of New York, thereby depriving them of the ability to obtain a significant monetary amount In damages for the injuries they sustained in a motor vehicle accident on January 25, 2003.

Plaintiffs are husband and wife. On January 25, 2003 plaintiff Steven David was operating his motor vehicle in which plaintiff Rosalie David was a passenger. While their vehicle was stopped in traffic it was struck in the rear by another vehicle, causing their vehicle to strike the vehicle in front and allegedly causing Rosalie David serious physical injuries, requiring surgery. Mrs. David was taken by ambulance from the scene of the accident to a local hospital where she was treated at the emergency room and later released. She was given pain killers and told to visit with her physician. Since she was in pain she visited her orthopedist, Dr. Jacob Rozbruch, on January 28, 2003.

Dr. Rozbruch had seen Mrs. David for an injury she had sustained to her right shoulder on January 20, 2003, five days before the automobile accident, when she tripped and fell on her right shoulder. When she visited him on January 28, he ordered an MRI which revealed a "full thickness tear of the rotator cuff" in the right shoulder. He suggested surgery to repair the injury, which was performed on February 6, 2003.

Plaintiffs contacted defendants approximately one week after the accident and retained them to prosecute their claim. Defendants were aware of the injuries sustained by Mrs. David, of the need for surgery to repair the injury and of the actual surgery performed on February 6, 2003. Despite knowing this, defendants filed their summons and complaint on June 27, 2003 in the Civil Court County of New York, demanding $25,000.00 in damages, thereby limiting Mrs. David to a recovery of $25,000.00 or less for her injuries.

The mistake was discovered during the latter part of the year 2003 and in March of 2004 defendants made a motion in Supreme Court New York county to transfer the action to that court and to increase the demand to $1,000,000.00. The motion was denied by the Hon. Kibbie F. Payne by decision order dated May 14, 2004 in which he stated : "All of the facts on which plaintiff relies in support of the motion were known or available to plaintiff at the time the complaint was served. Thus, because plaintiff has failed to make a sufficient showing by explaining the delay in making the motion, or why the monetary jurisdiction of the Civil Court would be inappropriate under the circumstances, the application is denied . . . accordingly, the application is denied in all respects and the petition is dismissed without prejudice to renewal upon adequate papers." [see Exh D &E plaintiff’s papers]. Justice Payne’s decision was affirmed by the Appellate Division First Department by memorandum decision dated December 15, 2005 [ See Exh. F & G plaintiff’s papers].

Following the denial of the motion and affirmance of the decision, the automobile accident case was settled for $25,000.00. Plaintiffs started this legal malpractice action against defendants by filing a summons and complaint in Supreme Court State of New York, County of New York demanding $750,000.00 for plaintiff Rosalie David and $100.000.00 for Steven David, as the amounts they would have recovered in the automobile accident case if it had been filed in the proper court.

Plaintiffs now move for an order granting partial summary judgment, declaring defendants liable as a matter of law to plaintiffs for legal malpractice, and setting this case down for an immediate trial for the determination of damages. Defendants cross move for an order granting them summary judgment and dismissing plaintiffs complaint. Defendants assert in their motion that plaintiff Rosalie David did not sustain a serious physical injury under New York State Insurance Law § 5102 (d), because it cannot be ascertained if the rotator cuff tear was the result of the trip and fall on January 20, or the automobile accident on January 25, 2003."

Here is a second case from the Federal Circuit,  Air Measurement Technologies v. Akin Gump, which is a more simple application of federal question jurisdiction.  Here the issue on appeal was whether the Federal District Court had subject matter jurisdiction over this non-diverse state court legal malpractice action.  District court and the Appellate Court both determined that the case involved a substantial federal question – patent law- and held that the court did indeed have jurisdiction, and that the matter was to continue in District Court and not be remanded.

Here is a widely reported Federal Circuit Case, Immunocept v. Fulbright & Jaworsky which discusses, in great detail when a legal malpractice case, brought in state court, and removed to district court may become subject to the law of jurisdictions other than the state in which it was brought.

As an example, a legal malpractice case arising from a simple car accident  [which coincidentally has full diversity of citizenship] may be removed to District Court, but will not be subject to Federal law.  In this contra-similar case, which arose under Patent law, and is subject to federal question jurisdiction, federal law will apply.  Here the statute of limitations was implicated.

 

No decision has been published yet, but Anthony Lin at the NYLJ reports that this legal malpractice case has been dismissed.  It arises from representation of nieces and nephews of holocost victims from the 1930’s.

"A Manhattan federal judge has thrown out a legal malpractice suit arising out of competing Holocaust restitution claims.

In 2005, a group of nieces and nephews of Jewish publisher and art collector Gustav Kirstein and his wife Clara, both of whom died in Germany in the 1930s, sued their former lawyer, New York’s David J. Rowland, claiming his mistakes caused them to have to share restored property and funds with another claimant.

But in Nordwind v. Rowland, No. 04 Civ. 9725, Judge Donald C. Pogue, sitting by designation in the Southern District of New York from the U.S. Court of International Trade, granted summary judgment to Rowland, finding that the relevant German restitution law would not have permitted the nieces and nephews a full recovery.

After their deaths, the Kirsteins’ estate passed to their daughters, Gabrielle Jacobsen and Marianna Baer, both of whom had emigrated to New York, where Jacobsen died in 1957 and Baer died in 1986.

The nieces and nephews retained Rowland in 1998 to represent them in seeking restitution for property lost or seized during Nazi rule. That included a number of art works as well as bank accounts. The nieces and nephews had been assigned Marianna Baer’s interest in the Kirstein estate by her daughter-in-law Miriam Reitz Baer.

But Jacobsen’s interest passed to her adopted son Godfrey, who died in 1980, naming a woman called Christel Gauger as his sole heir. Rowland determined Gauger held Gabrielle Jacobsen’s interest and sought to represent her as well. She would receive a 50 percent interest in property and funds restored to the Kirstein estate, with the other half going to the nieces and nephews. "