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). "

Plaintiff’s case ended with a verdict.  Now, the attorneys are battling over the legal fees generated.  This McDonald’s Strip Search case reported in the Kentucky Law Review blog ended in a plaintiff’s verdict.  Now the aftermath

"The battle over money in the McDonald’s strip-search case didn’t end with yesterday’s verdict.

Louise Ogborn’s original lawyers, whom she fired, filed a lien on the judgment to make sure they are paid for their work.

But Ogborn has sued those lawyers — William C. Boone Jr. and Steve Yater — for legal malpractice.

The lawyers claim that the suit is nothing more than an effort by Ogborn’s current lead counsel, Ann Oldfather, to avoid sharing fees.

In court papers filed with the legal malpractice suit, Ogborn claims that those two lawyers committed malpractice by making concessions in her case without her knowledge after McDonald’s discovered they had allegedly made an ethics violation by notarizing the affidavits of witnesses after they had signed them.

During the four-week trial, Ogborn also claimed Boone and Yater forced her to submit to interviews with The Courier-Journal and ABC’s "Primetime" that damaged her psychologically and diminished the value of her case. Lawyers outside the case have said that Ogborn lost the opportunity to leverage a large settlement from McDonald’s once the company was exposed to bad publicity.

The malpractice suit was filed in circuit court in Spencer County, where Ogborn lives, but a judge there has ruled it must be pursued in Bullitt County, where it has been refiled and is pending. "

Here is a case which, on the one hand point up how disfunctional families can become, while on the other hand, point out how intertwined and difficult estate planning with mutual trusts and wills are.  From a reading of this case, we think the family really did not like one of the sons, and the parents [or was one a step-parent ?] disinherited one kid.  This simply led to a lot of litigation, and in the end, the kid got a more or less fair share.  It looks like everyone paid big legal fees to get to that position.

"Following Grace’s death, Elliot reviewed both his mother’s and step-father’s will. Elliot filed a caveat against the probate of Grace’s will, alleging undue influence. Additionally, Elliot filed an exception to the approval of the trustees’ final accounting, following the administration of Sidney’s estate. Elliot challenged the distribution of the assets of Sidney’s estate to Barry and Leslie. A Jamieson partner, other than Leavitt-Gruberger, defended the estates of Grace and Sidney against Elliot’s claims and appeared on behalf of the co-trustees. Both sides filed motions for summary judgment. Contrary to the arguments presented, the reviewing judge determined that the issues presented posed a factual dispute as to Sidney’s intention in drafting the provisions of Part "B"; additional discovery and a plenary hearing were ordered. To avoid the additional expense of the contested proceeding, plaintiffs settled Elliot’s claims against both estates for $130,000.

Thereafter, plaintiffs filed the instant legal malpractice action, contending that Leavitt-Gruberger negligently drafted the will. Plaintiffs asserted that when taken as a whole, the provisions of Part "B" failed to unambiguously satisfy Sidney’s intention because it contained confusing and competing instructions to the trustees. Plaintiffs argue that the trust presented "inconsistencies that created the impression that Grace was a major beneficiary." This ambiguity prevented the court from dismissing Elliot’s action, and necessitated a plenary hearing to decide whether "it was inappropriate to deplete the trust of all assets while Grace was still alive." Further, because "trustees owe a fiduciary duty to all beneficiaries," Leavitt-Gruberger placed plaintiffs in an unsupportable position as trustees, by advising them to distribute trust assets to themselves, as beneficiaries, to the exclusion of Elliot. Such draftsmanship was "irresponsible and caused plaintiffs to incur enormous legal fees defending Elliot’s law suit."

Defendants’ motion for summary judgment was returnable on July 21, 2006. Plaintiffs argued Leavitt-Gruberger did not clearly draft the testamentary provisions to unambiguously present Sidney’s desire to allow Elliot to share in his estate only if he ended his estrangement with his mother. Plaintiffs urged that the proper estate planning vehicle to accomplish Sidney’s purpose was a limited power of appointment. At the very least, plaintiffs argued that the documents should have specifically thwarted any self-dealing claims if the trustees exercised the granted powers and depleted the assets. Additionally, plaintiffs stated that the power to deplete principal contained in section (b)(2) of Article Third was limited by an ascertainable standard so that principal distributions were to satisfy only needs similar to maintenance, support, education, and health. Leavitt-Gruberger’s advice to the contrary was incorrect.

After concluding plaintiffs failed to prove by clear and convincing evidence that the trust provisions as written did not properly reflect Sidney’s intent, the motion judge determined the benefits designated for Grace were "alternative provisions" to those allowing Barry and Leslie to distribute the principal in their non-reviewable discretion. The motion judge concluded that the trust clause was "broad" and that "it permits the trust to be exhausted . . . including the whole thereof. . . . [I]t’s my conclusion that there is nothing ambiguous about this, it’s not a question of ambiguity." "

This is a  NJ case of legal malpractice, but it touches on "judicial estoppel"  "mutually exclusive positions" the difference between "successive and alternative tortfeasors" and what is in New York called the "effectively compelled" rule.  In New York a legal malpractice plaintiff must prove that a settlement was effectively compelled by the attorney’s mistakes, and was not simply a strategic position.

Here in this NJ case:

"While plaintiff in the first action could have joined the defendants in this case, he did not do so, nor did he put the defendants in the first action on notice of the Arnold defendants’ potential liability to the plaintiff. It would have been perfectly acceptable for plaintiff in the first action to have advanced alternative theories of liability. See City of Jersey City v. Hague, 18 N.J. 584, 603 (1955). Rather than doing so, however, plaintiff proceeded with his first action against the sellers, realtors, home inspector and other defendants and settled same.

Plaintiff pleaded the defendants in both of these suits as alternative tortfeasors rather than joint or successive tortfeasors. Joint tortfeasors are "two or more persons jointly or severally liable in tort for the same injury to persons or property, whether or not judgment is recovered against all or some of them," N.J.S.A. 2A:53A-1. The test for joint tortfeasor liability is whether defendants had "common liability at the time of the accrual of plaintiff’s cause of action." Markey v. Skog, 129 N.J. Super. 192, 200 (Law Div. 1974); and see Cherry Hill Manor Assoc. v. Faugno, 192 N.J. 64, 76 (2004). A successive tortfeasor is one whose liability succeeds that of an initial tortfeasor; for example, a doctor who negligently treats a party injured at an accident caused by an initial tortfeasor. See, e.g. Ciluffo v. Middlesex General Hosp., 146 N.J. Super. 476, 484 (App. Div. 1977), (holding that when a plaintiff settles with an initial tortfeasor for less than the full amount of her damages, she may proceed against the successive tortfeasor for the remainder of her damages).

In this case, the Arnolds are alternative tortfeasors, meaning that once plaintiff recovered from the sellers, he can not recover from the Arnolds. This is because the alternative theories advanced in each of the law suits are based on mutually exclusive inconsistent factual allegations. In going against defendants in the first action, plaintiff alleges that he was not appropriately informed of the serious structural defects in the home. In pursuing his cause against the Arnolds he states he was advised of the serious defects, directed his attorneys to terminate the contract or negotiate a reasonable price reduction to accommodate the repairs and that the attorneys negligently failed to do so. These are two mutually exclusive factually-based theories of liability against two groups of defendants. By settling with the sellers and the other defendants in the first action, plaintiff is estopped from proceeding against the attorneys. This is because in this factual setting the inescapable fact is that the plaintiff could not have recovered against both groups of defendants. See Norcia v. Liberty Mutual Insurance Co., 297 N.J. Super. 563, 570 (Law Div. 1966), aff’d o.b., 308 N.J. Super. 194 (App. Div. 1998), certif. denied, 154 N.J. 608 (1998). If plaintiff had joined all defendants together in the first action, an award against both the attorney defendants and defendants in the first suit, would have been impossible under the mutual exclusive alternative factual theories advanced.

We believe though, that the trial judge mistakenly used the phrase "judicial estoppel" as the rationale for her ruling. Judicial estoppel binds a party only to a position that it successfully asserted in the same or prior proceeding. Kimball Inter. v. Northfield Metal, 334 N.J. Super. 596, 606 (App. Div. 2000). Plaintiff by settling did not successfully advance for judicial acceptance his position. Hence, the doctrine of judicial estoppel does not apply.

That judicial estoppel is not applicable does not mean, however, that plaintiff may advance against defendants in a later suit a position that is mutually exclusive and factually inconsistent with a position advanced against other defendants in an earlier suit. Plaintiff’s choice to institute the first action without joining his alternative tortfeasors as co-defendants, and his election to settle the case against the seller defendants and receive those settlement funds can be viewed as confirming plaintiff’s assertion that the sellers failed to adequately disclose the conditions of the property. See, e.g., Norcia v. Liberty Mutual supra, at 569.

While we recognize that a party may advance an alternative and inconsistent pleading under Rule 4:5-6, we hold that a plaintiff is estopped from pursuing a successive action against a tortfeasor where: (1) plaintiff earlier settled a suit against other tortfeasors for the same damages; (2) the preceding suit was based upon a mutually exclusive inconsistent position with the successive action; (3) all of the alleged tortfeasors in both suits are alleged to be liable to plaintiff for the same damages but on the basis of a different standard of care or duty; and (4) plaintiff failed to provide the required Rule 4:5-1(b)(2) notice in the preceding suit. Such estoppel is in accord with fairness and public policy. See, e.g., Puder, supra, 183 N.J. Super. 428. Estopping plaintiff from bringing this action is consistent with our court’s policy of favoring settlements, promoting judicial economy, promoting party fairness, encouraging comprehensive and conclusive litigation determinations, avoiding fragmented litigation, preserving the integrity of the judicial process, and insuring candor and fair dealing with the courts.

The initial defendants, if informed of potential co-defendants, could have joined them and may have differently evaluated their litigation and settlement strategies. The attorney defendants, while they might file a third-party complaint against the initial defendants for indemnity or contribution in this case, would be prejudiced by having to advance plaintiff’s initial factual position without the cooperation of plaintiff – a difficult task where plaintiff’s allegation was he was defrauded. "

Two things cought our eye in this blog blurb from the West Virginia Business Litigation Blog.  The first is that one can watch a webcast of appellate proceedings in W.Va.  and the second is that this legal malpractice case is about a petition for appeal [similar to a cert request??] which is alleged to have been muddled for the attorney’s benefit. 

"According to the article by Gazette reporter Paul J. Nyden, Massey and two related entities have sued Wyatt, Tarrant & Combs, LLP of Lexington, Kentucky and McGuire Woods LLP of Richmond, Virginia for their alleged malpractice in representing Massey in a Virginia lawsuit filed by Hugh Caperton and his companies. In 2001, a Virginia jury awarded the plaintiffs $6 million. The Virginia Supreme Court refused Massey’s appeal because it was filed by a lawyer from Kentucky who wasn’t admitted to practice in Virginia. Massey ended up paying Caperton $7.2 million, including $1.2 million in pre-judgment interest. Here is Massey’s complaint, which was filed on July 13, 2007 in the Circuit Court of Fayette County (Lexington), Kentucky.

Massey alleged claims for negligence, breach of contract, and breach of fiduciary duty/conflict of interest, and claimed that the defendants failed to have a lawyer admitted to practice in Virginia sign the notice of appeal, which resulted in the dismissal of the appeal by the Virginia Supreme Court. Further, Massey alleged that the defendants changed language in its petition for appeal without Massey’s knowledge and for the purpose of making a legal malpractice claim more difficult to assert. Specifically, Massey alleged that the petition in draft form asked that the Supreme Court “reverse and remand” the verdict and “reverse and render final judgment.” But in the final version, only the “reverse and remand” language was included.

According to the complaint, if the defendants had properly filed the notice of appeal and not changed the language in the petition for appeal, “the Virginia Supreme Court would have reversed the judgment of the trial court due to its erroneous rulings at trial and entered final judgment in Wellmore’s [one of the plaintiffs] favor.” "

Caveat:  We can’t figure out this land deal from the News report.  Here it is:

"Developers behind the failed Pendleton Station project are firing back in court documents against allegations that they misused loan money.

Benjamin Daniel Sr., Benjamin Daniel Jr., Elizabeth Daniel and Thomas Daniel, the family members who ran Pendleton Station LLC, Coastal Plains Development, and the project’s major suppliers, denied claims that they misused money from Enterprise Bank of South Carolina and allege that the bank’s top officials were conspiring against them.

“I look forward to seeing what evidence they have to support it,” said Tom Dudley, a Greenville attorney who represents the bank.

Enterprise Bank says the Daniels and their related companies owed it more than $5.5 million at the beginning of the year.

But the family’s court filings say Enterprise Bank refused to allow construction loans on 10 units at Pendleton Station to be closed. Those units would have brought in $1.6 million. Court filings claim that the bank agreed to give Pendleton Station more money if William Spence, chief financial officer at Coastal Plains Development, cosigned for the loan and if the Daniels offered a piece of Daniel Island property worth about $750,000 as additional collateral.

William Cutchin represented the family and Mr. Spence in the transaction, but at the closing he presented sale papers to Ms. Daniel instead of a secured loan.

Under this new deal, the property was to be sold to Mr. Spence for $300,000, and the bank would pay Pendleton Station’s outstanding debts. When the Daniels could repay Mr. Spence, he would convey the land back.

The latter part of the arrangement never made it onto paper. When the family offered to pay Mr. Spence, he refused to sell it back for less than market value, according to court filings.

Mr. Daniel Sr. was hospitalized for cancer treatment at the time, and the filing claims that the bank and other parties involved in the transaction conspired to force Ms. Daniel into a vulnerable position so she would give them the property at less than half its value.

A similar situation occurred with property Mr. Daniel Sr. was developing on Lake Murray called The Club at Plantation Point, according to the family’s filing.

The family also accuses Mr. Cutchin of attorney malpractice for not advising Ms. Daniel during the land transactions. Mr. Henry and Mr. Mathias are charged with conspiracy. "

One would expect a lot of probate work in Florida, as well as a more moderate amount of medical malpractice litigation there.  As surely as night follows day, there will be mistakes, miscommunications and legal malpractice claims where there is legal work.  Probate work involves transfers of money, and one might expect litigation over mistakes in money transfers.

With that, the insurance industry follows the trends.  Here is a blog blurb from the Florida Probate blog which discusses an industry report.

"Against this backdrop, a recently published article by LawPRO, a Canadian professional liability (malpractice) insurance provider, should be of interest. Wills & estates law claims on the rise by Deborah Petch and Dan Pinnington provides claims statistics and risk management advice specifically focused on the probate/estate planning practice area. Although written for a Canadian audience, the advice seems equally applicable in Florida.

I was especially interested to see that "lawyer/client communication failures" was far and away the single most common cause of malpractice claims. This finding is in line with the med-mal statistics and "don’t-be-a-jerk" risk management advice given to doctors I previously wrote about [click here]. Another way of stating the don’t-be-a-jerk rule is: respectfully listen to and communicate with your clients. "

This story of an Arkansas lawyer who is alleged to have stolen money moved from the mere mistake, to theft, to tragedy, and then legal malpractice.

"Rogers tax attorney now faces federal charges of transporting stolen funds in addition to state theft charges.

Eric Dean Archer, 36, of Rogers was arraigned Wednesday in Fort Smith on the one-count federal indictment. He was given a Nov. 13 trial date.

If convicted, Archer faces up to 10 years in prison and fines of up to $250,000 or both.

Archer pleaded not guilty Aug. 6 to a theft of property charge in Benton County. Archer was arrested in May in Tunica, Miss., after Carol Fountain and her son, Charles, told police their 2005 federal tax returns, and payment, never reached the Internal Revenue Service.

Archer told police someone embezzled $300,000 from his business, including the Fountains’ money, and an insurance company was investigating. Rogers police say Archer never filed a report with them.

The Fountains have also filed a civil lawsuit against Archer in Benton County. That suit claims Carol Fountain gave Archer a check for $36,000 to pay her amended 2005 taxes but he never paid the IRS. Charles Fountain gave Archer $8,300, which was never paid to the IRS, according to the suit.

The civil suit alleges legal malpractice, breach of contract, conversion and constructive trust.