Hinshaw reports this case: Ellis J. Burnett v. Daryl M. South, Slip Copy, 2006 WL 4497729 (Tenn.Ct.App. 2007)

"Tennessee Appeals Court Concludes Criminal Defendant Client May Bring Legal Malpractice Action Before Seeking or Receiving Post-Conviction Relief . The court held that a criminal defendant who wished to sue his attorney for legal malpractice following a conviction could do so before obtaining relief from the conviction in order to avoid the “Catch 22” situation posed by the one-year statute of limitations for legal malpractice actions. The case may then be stayed to see whether the legal malpractice plaintiff is able to obtain relief from the conviction. "

This case illustrates the difference between legal malpractice claims and overbilling claims.  Ironicly, the defendant law firm concerntrates [specializes?] in legal malpractice litigation.

Gamiel v Curtis & Riess-Curtis, P.C. ,2007 NY Slip Op 07341 ,Decided on October 4, 2007
Appellate Division, First Department 

"Plaintiff’s affidavit was conclusory (see Murray Hill Invs. v Parker Chapin Flattau & Klimpl, 305 AD2d 228, 229 [2003]), and failed to set forth the requisite "but for" causation with respect to her legal malpractice claims (see Aquino v Kuczinski, Vila & Assoc., P.C., 39 AD3d 216, 218-219 [2007]), a deficiency not remedied by her attorney’s affirmation. However, we find that plaintiff sufficiently set forth the merit of her claims concerning overbilling and the withholding of her files to
preclude summary resolution of those claims (see Batra v Office Furniture Serv., 275 AD2d 229 [2000]). "

This report from Law.Com  tells the story of an international quest for payment on a divorce attorney fee, as well as the underlying monies due from a rich husband to the wife and an attorney.

"Lawyers whose clients refuse to pay their fees routinely file lawsuits and win judgments against them. But attorney Ellen Marshall’s disputes with a former divorce client have been anything but routine. Then again, Warren Matthei is no ordinary client.

Matthei, a millionaire stockbroker from Summit, N.J., spent nearly a decade in jail — first for refusing to pay child support to his ex-wife and later for refusing to pay Marshall’s attorney fees. Marshall obtained an $85,000 judgment against Matthei, but court records show she has all but given up on getting the money from Matthei.

Instead, in a separate lawsuit, Marshall is pursuing RICO claims against lawyers in Pennsylvania and London, England, who, she claims, have assisted Matthei in hiding his assets from her.

Now a federal judge has refused to dismiss the lawsuit in a scathing opinion that says "this dispute exemplifies why there are reports of the public’s disdain for lawyers."

In her 46-page opinion in Marshall v. Fenstermacher, U.S. District Judge Gene E.K. Pratter dismissed Marshall’s federal RICO claims, but found that she may nonetheless have valid RICO claims under New Jersey law against attorney Ronald Fenstermacher and his firm, High Swartz Roberts & Seidel, in Norristown, Pa., and British attorney David Burgess and his London law firm, Hetherington & Co. To understand Marshall’s claims against the Norristown and London lawyers, one first needs to understand Marshall’s long history with Matthei. "

This is an otherwise unremarkable story about an attorney who made a mistake.  Mistakes happen all the time, and when a client is hurt by the mistake, the attorney is guilty of legal malpractice.  Reasonable and competent attorneys make mistakes, and have insurance to cover their mistakes.  This attorney was so unreasonable and obsessed, he was eventually disbarred.

What we loved in this story  were the names of some of these injunctions and motions:

"Courts had entered Bills of Peace and Perpetual Injunctions in a failed attempt to put the matters to an end. The Georgia Supreme Court had imposed sanctions for frivolous appeals three times. The court now has ordered disbarment"

Front page of the Wall Street Journal is all about the US Supreme Court Stoneridge case.  Asode fr, what it will mean for the securities industry, the WSJ believes this to be the largest potential widening of liability for lawyers.

Keep watching this case for its legal malpractice or lawyer liability issues.

 "The Supreme Court is wading into one of the most intense battles ever waged between two deep-pocketed enemies: the trial bar and big business.

Today, the justices will hear arguments in a case that hinges on whether defrauded shareholders should be allowed to sue not just the company that committed the crime, but also its advisers, lawyers, accountants and vendors
The showdown comes at a time when the plaintiffs bar is losing ground. In June, the Supreme Court sided with business when deciding what standard of proof plaintiffs must meet to file securities lawsuits against companies. Earlier this year, the justices essentially inoculated Wall Street firms from antitrust claims. The Bush administration says it is working with regulators on a series of recommendations to "balance" the U.S.’s competitive position with shareholder litigation."

Here is an interesting report on a trial loss, potential legal malpractice at the trial level, and then a really big mistake on appeal.  The last mistake is said to have been committed by a newly nominated Federal Judge Duncan Getchell, Jr.

"Two years ago, someone made a huge mistake at the Virginia Supreme Court – a clerical error that cost a client a chance to win an $8 million appeal.

“If there is a more terrifying lawyer story than this one, I don’t want to hear it,” wrote one legal analyst, L. Steven Emmert of Virginia Beach, who runs a Web site called Virginia Appellate News & Analysis.

It was a simple goof – someone forgot to file a trial transcript – but it caused the Supreme Court to throw out an appeal of an $8 million jury verdict.

The lead attorney for that appeal was E. Duncan Getchell Jr., who has been nominated by President Bush for a judgeship on the 4th Circuit Court of Appeals, based in Richmond.

Getchell, of Richmond, is a partner with McGuireWoods, one of the largest and most powerful law firms in Virginia.

Was he responsible for the mistake?

It is not clear who was supposed to physically deliver the transcript – Getchell, another lawyer or a paralegal – but court records show that Getchell took over as lead attorney after the verdict in July 2004. Another law firm handled the trial.

Getchell’s firm filed the first post-trial motions three weeks after the verdict, and Getchell personally argued those motions. He also signed the notice of appeal that stated, incorrectly, that the trial transcript had been filed.

Every document after that was signed by Getchell. He was the lawyer in charge when the error was made.

On the other hand, the insurance company that paid the $8 million does not blame Getchell – yet. For now, the company is suing the trial attorney and his law firm in a legal malpractice case to recover the money.

Here is a report from Law.Com on an appellate reversal after a trial on a bad faith and legal malpractice case.  Plaintiff said that the insurance company should have offered to settle the case within policy limits, and that its defense attorneys committed malpractice.  The jury agreed, while the judge did not.  Now the appellate court has sided with the jury.

"The Pennsylvania Superior Court has reversed a Philadelphia judge’s decision to toss out a $3 million verdict awarded to a real estate brokerage that sued its insurer and lawyer after it was hit with an $11.4 million verdict in a defamation suit.

In its 24-page opinion in Marie Miller Century 21 Alliance Inc. v. Continental Casualty Co., a unanimous three-judge panel found that Philadelphia Common Pleas Judge Allan L. Tereshko had no basis for overturning the jury’s awards against either the insurer or the lawyer.

In the suit, Marie Miller and her company, Century 21/Marie Miller & Associates, argued that Continental Casualty (also known as CNA) should have settled the defamation case prior to trial, and that news of the verdict had harmed its business.

The plaintiffs also brought a legal malpractice claim against attorney Jonathan D. Herbst and his firm, Margolis Edelstein, claiming that he, too, should have settled the case before Miller was hit with a massive verdict "

Here is a case from the 2d Department in which plaintiff was represented by defendant attorneys in an EEOC suit.  She lost at the administative lefel, and her legal malpractice suit alleged that defendants did not appeal from that original dismissal, committing malpractice.  Their motion for summary judgment failed.Lamanna v Pearson & Shapiro ,2007 NY Slip Op 06956 , Decided on September 25, 2007 ,Appellate Division, Second Department

"The plaintiff alleges, inter alia, that [*2]the defendants failed to take an administrative appeal from an adverse determination of the Equal Employment Opportunity Commission (hereinafter the EEOC) made in a proceeding they commenced on her behalf and that but for their negligence, she would have prevailed on her administrative appeal or would have been successful in pursuing her discrimination claims in Federal court. In support of their motion, the defendants failed to proffer sufficient evidence to establish, prima facie, that the plaintiff would not have been successful in an appeal from the EEOC determination or that they had properly preserved her right to seek review of her claims in Federal court.

The defendants’ failure to make a prima facie showing required the denial of the motion, regardless of the sufficiency of the opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). Accordingly, the motion for summary judgment was properly denied (see Suydam v O’Neill, 276 AD2d 549, 550). "