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."

Borrowing a sister state’s statute of limitations is the province of "choice of law", which is a rather esoteric law school subject.  For our purposes, which state’s law should be applied depends on where the action is brought, where the wrong took place, where the parties were subject to service of process and jurisdiction.

Here is a case in which plaintiffs wished to sue a NY attorney yet use the Tennesee statute of limitations.  The reason?  It was too late to use the NY statute of limitations.  The case, GML Inc. v, Cinque & Cinque was recently decided by the Court of Appeals.

"The action was started in New York, and as such, it was unnecessary to toll the statute of limitations…" 

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."