Underlining why one does not litigate where one does not know the rules, here is an otherwise meritorious legal malpractice case which is now dismissed with prejudice for breaking the Washington state "two dismissal "rule.  Hinshaw explains:

"In March 2004, Feature filed a new complaint in Seattle against Mr. Neal and Preston Gates, but not Butler. Following a successful motion to change venue to Spokane, Washington, the defendants moved for summary judgment based on the so-called “two dismissal” rule found in Washington CR 41(a)(4), which provides “[u]nless otherwise stated in the order of dismissal, the dismissal is without prejudice, except that an order of dismissal operates as an adjudication upon the merits when obtained by a plaintiff who has once dismissed an action based on or including the same claim in any court of the United States or of any state.” Id. at *2. The lower court granted the summary judgment motion. Feature appealed and the case was transferred to the Supreme Court of Washington for direct review. Id. at *2.

The court noted that the purpose of the “two dismissal” rule was to prevent the abuse and harassment of defendants and the unfair use of dismissals. The court noted that the language of CR 41(a)(4) did not allow for court discretion and operated as a nondiscretionary adjudication on the merits when the dismissals are unilaterally obtained. The court also asserted that the rule should be strictly construed and that if a defendant stipulated to the dismissal or the dismissal was by court order, then it was not unilateral and the rule did not apply. On the other hand, the court would not look to the parties’ intent if the requirements of the rule were met. See also Spokane County v. Specialty Auto & Truck Painting, Inc., 103 P.3d 792 (2004); Burnett v. Spokane Ambulance, 933 P.2d 1036 (1997). "

Here is a budding legal malpractice case, arising out of a medical malpractice action.  2 defendants serve 90 day notices, and plaintiff tries to file a Note of Issue.  Clerk rejects NOI, and instead of immediately making a motion seeking more time, or the right to file a NOI, plaintiff puts the entire matter aside.

"Contrary to the defendants’ contentions, the Supreme Court could not have properly dismissed the actions for the plaintiffs’ failure to comply with the October 23, 2000, compliance conference order. Although a compliance conference order which directs a plaintiff to file a note of issue, and warns that the failure to do so will result in dismissal of the action, may constitute a valid 90-day notice pursuant to CPLR 3216 (see Bowman v Kusnick, 35 AD3d 643; Hoffman v Kessler, 28 AD3d 718), here the plaintiffs’ counsel was not present at the October 2000 compliance conference, and there is no evidence that the compliance conference order was ever properly served upon the plaintiffs.

However, the Supreme Court should have dismissed the actions based upon the plaintiffs’ failure to comply with the 90-day notices served by the defendants in May 2005. Where a party is served with a 90-day notice pursuant to CPLR 3216, it is incumbent upon that party to comply with the notice by filing a note of issue or by moving, before the default date, to vacate the notice or extend the 90-day period (see Serby v Long Is. Jewish Med. Ctr., 34 AD3d 441; Randolph v Cornell, 29 AD3d 557; C & S Realty, Inc. v Soloff, 22 AD3d 515; Chaudhry v Ziomek, 21 AD3d 922). The plaintiffs did not file a note of issue before the default date set by the 90-day notices, and their August 2005 motion for an extension was rejected without being decided. Since the plaintiffs thus failed to properly respond to the 90-day notices within the allotted period of time, in order to avoid dismissal they were required to demonstrate both a justifiable excuse for the delay and the existence of a meritorious cause of action (see CPLR 3216; Serby v Long Is. Jewish Med. Ctr., 34 AD3d 441; Randolph v Cornell, 29 AD3d 557; Parkin v Ederer, 27 AD3d 633; Chaudhry v Ziomek, [*3]21 AD3d 922). Although the plaintiffs’ August 2005 motion was rejected, they took no further steps to obtain an extension of time to file a note of issue until June 2006, when they responded to the defendants’ motions to dismiss by filing the cross motion now under review. The plaintiffs offered no excuse to justify their extensive delay in seeking an extension, or their lengthy delays in prosecuting this action (see Harrington v Toback, 34 AD3d 640). Moreover, the plaintiffs failed to demonstrate the existence of a meritorious malpractice cause of action against Eswar (see Mosberg v Elahi, 80 NY2d 941, 942; Salch v Paratore, 60 NY2d 851, 852; Serby v Long Is. Jewish Med. Ctr., 34 AD3d 441; Randolph v Cornell, 29 AD3d 557; Burke v Klein, 269 AD2d 348). "

This situation comes up more often than we might imagine.  Disbared attorney refers cases to lawfirm which settles them. What fees may the disbared attorney demand?

Rothman v Benedict P. Morelli & Assoc., P.C.
2007 NY Slip Op 06934
Decided on September 25, 2007
Appellate Division, First Department

"Defendants’ motion to dismiss the complaint should have been granted. "A disbarred, suspended or resigned attorney may not share in any fee for legal services performed by another attorney during the period of his removal from the bar" (Rules of App Div, 1st Dept [22 NYCRR] § 603.13[b]). Since plaintiff’s disbarment occurred during the pendency of the six actions, he is barred from recovering on any of the referral agreements. Accordingly, his claim for breach of contract fails to state a cause of action (Eisen v Feder, 307 AD2d 817, 818 [2003]); Lessoff v Berger, 2 AD3d 127 [2003]). "

"As to plaintiff’s unjust enrichment claim, while a disbarred attorney may be compensated on a quantum merit basis for legal services personally rendered prior to disbarment, "[t]he amount and manner of payment of such compensation . . . shall be fixed by the court on the application of either the disbarred . . . attorney or the new attorney, on notice to the other as well as on notice to the client" (22 NYCRR 603.13[b], supra; Eisen, supra). In contravention of this court rule, there is no evidence that any of the clients were given the requisite notice of this application. Also in contravention of this rule, plaintiff combined all six applications into this single proceeding brought in New York County when, at least with respect to the two pending [*2]actions, separate applications should have been made "in the court wherein the action is pending." Accordingly, plaintiff’s unjust enrichment claim is also defective."

Qualcomm, Apple, Oracle.  Their GCs are moving around, and from this article, it seems as if they are playing musical chairs.  Is the music coming from Qualcomm’s "legal malpractice?"

"In a shuffle between companies with legal challenges spanning the globe, Apple Inc. general counsel Donald Rosenberg is leaving for Qualcomm Inc. after just 10 months in the post.

Oracle Corp. general counsel Daniel Cooperman will replace Rosenberg on Nov. 1, Apple said Friday.

Rosenberg joined Apple last November, when the maker of iPod players and Macintosh computers was in the thick of a stock options scandal. His predecessor there, Nancy Heinen, is now fighting civil charges that she fraudulently backdated stock-options awards to the executive team and a grant to CEO Steve Jobs.

Jobs has a reputation as a tough boss, and his Cupertino-based company maintains an overflowing plate of legal work. In addition to shareholder lawsuits, Apple stays busy building and defending a large portfolio of patents and faces copyright concerns and anticompetitive complaints from a string of European agencies over its iTunes-iPod franchise.

Rosenberg, who spent more than 30 years at International Business Machines Corp. before joining Apple, is jumping to another general counsel post brimming with challenges.

San Diego-based Qualcomm, the world’s second-largest provider of cellular phone chips, is under investigation in the U.S., Europe and Asia for antitrust claims. It also faces major legal battles with rivals Nokia Corp. and Broadcom Corp. over its patents.

Qualcomm’s most recent general counsel, Lou Lupin, resigned in August after a string of legal setbacks and an embarrassing rebuke by a San Diego judge who said Qualcomm was dishonest and committed ‘legal malpractice.’

Apple did not disclose why Rosenberg left.

Here is an Appellate Division, Second Department case in which plaintiff is the law firm seeking fees after matrimonial work and defendant is the client.  Parola, Gross & Marino, P.C. v Susskind
2007 NY Slip Op 06850 ; Decided on September 18, 2007 ; Appellate Division, Second Department

Here, the client could not link up mistakes and damages.  "Here, the counterclaims failed to allege any material facts giving rise to a cognizable claim for legal malpractice (see Hartman v Morganstern, 28 AD3d 423). To establish a counterclaim to recover damages for legal malpractice, the defendant is required to show that the plaintiff failed to exercise the care, skill, and diligence commonly possessed and exercised by a member of the legal profession, that the plaintiff’s negligence was a proximate cause of the loss sustained, that the defendant incurred actual damages as a result of the plaintiff’s actions or inaction, and that but for the plaintiff’s negligence, the defendant would have prevailed in the underlying action or would not have sustained any damages ( see Arnav Indus., Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner, 96 NY2d 300; Pistilli v Gandin, 10 AD3d 353, 354). Here, the defendant’s counterclaims merely set forth conclusory allegations of negligence on the part of the plaintiff and wholly failed to allege any actual damages that he sustained as a result of the plaintiff’s alleged negligence. "

In this Lexology report from Hinshaw an attorney was covered by the initial insurance even after leaving the firm, even for work later performed:

"Kimberly A. Jolley, et al. v. John J. Marquess, et al., ___A.2d___, 2007 WL 1518114 (N.J.Super.A.D.)

Addressing a question of first impression, the Appellate Division of the New Jersey Superior Court held that a malpractice insurance policy’s definition of “insured” – which included a former partner “while acting solely in a professional capacity on behalf of” the partner’s former firm – required the insurer to defend and indemnify for work the lawyer did both before and after he had left the firm. The decision has important things to say not only about the scope of malpractice coverage but also about the importance for attorneys and insurers alike of proper transfer of client matters when a lawyer leaves a firm. "

The State of California has rejected a proposal to require attorneys to disclose whether they carry legal malpractice insurance.  Here is the story:

"The State Bar Board of Governors yesterday rejected rules that would have required California attorneys to disclose to clients and to the State Bar if they do not have malpractice insurance, and would have mandated that the State Bar identify uninsured attorneys on its Web site.

Saying that requiring that such information be posted on the Internet was “over the top,” President Sheldon H. Sloan cast the tie-breaking vote against the proposal, which was defeated by a vote of nine to eight.

The proposal would have amended the California Rules of Professional Conduct and the California Rules of Court.

Board members William Gailey, Jeffrey L. Bleich, Matthew Butler, George Davis, Jeannine English, James N. Penrod, John E. Peterson and James Scharf voted in favor of the proposal. Laura N. Chick, John J. Dutton, Richard A. Frankel, Holly J. Fujie, Jo-Ann Grace, Howard Miller, Danni R. Murphy, and Carmen M. Ramirez voted against it.

Vigorous Debate

The board split on adoption of the proposal after debating the issue and hearing testimony from a number of supporters and opponents. Although the board agreed that everyone was in favor of client protection, individual members disagreed on whether the proposal, or a broad mandate requiring all attorneys to obtain insurance provided by companies at an affordable level, was the best manner in which to proceed.

Supporters of the proposal framed the issue as a matter of client protection, while opponents such as Dutton pointed to the lack of empirical evidence supporting a need for the proposal. "

We reported the story of an attorney who robbed a pharmacy three times in 11 minutes.  His story gets worse.

"An attorney accused of robbing a pharmacy three times in a span of a few minutes jumped head first from his fifth-floor hospital room Thursday, landing on the roof of a nearby two-story building.

Robert Behlen "vaulted himself" through a narrow window in his room and screamed as members of a sheriff’s office tactical team on tethers tried to reach him from an outdoor ledge, Oklahoma County Sheriff John Whetsel said.

"Obviously, he was intent on trying to commit suicide," Whetsel said. "We were very hopeful to a different resolution."

Whetsel said Behlen was verbal and conscious following the fall. But he was listed in critical condition Thursday evening to repair a fractured pelvis and dislocated hip, sheriff’s spokesman Mark Myers said. "

"They’re trying to find out what else is wrong with him. He’s taken a turn for the worse," Myers said.

 

We chanced across this story about Jesse James, his legal problems, and the proposed solution to being sued.  One Lawyer’s Showdown With Jesse James

"The thought of a showdown with notorious Wild West bank robber Jesse James conjures up images of six-shooters drawn on a dusty main street. But it appears that one brave Missouri lawyer sought recourse from James in a more lawyerly way, by taking him to court — and won. James elected not to appeal but, outlaw that he was, twice later tried to shoot the lawyer who beat him in court.

A modern-day Missouri lawyer, James P. Muehlberger of Shook, Hardy & Bacon, last month discovered documents detailing the litigation. His discovery and the story it reveals are reported this week in The Kansas City Star [via Bashman]. The timing of his discovery could not be better, given last week’s release of the Brad Pitt movie, The Assassination of Jesse James by the Coward Robert Ford.

As Star writer Brian Burnes recounts, Ford may have been a coward, but young lawyer Henry McDougal was anything but. The case stemmed from an 1869 bank robbery in Gallatin, Mo., in which two robbers shot and killed the cashier. As they made their getaway, one robber’s horse bolted, forcing the pair to escape on one horse. The horse they left behind was identified as belonging to James.

Outside town, the bank robbers encountered Daniel Smoote and forced him to hand over his horse. The smitten Smoote wanted to sue James, but could find no lawyer willing to take his case, until he met McDougal, then 25 and a lawyer for just a year. McDougal sued for attachment of the horse James left behind. Surprisingly, James retained a lawyer and responded with legal maneuvers of his own, asking the court to quash service of the complaint. After nearly two years of legal gun slinging, James refused to appear for trial and the court entered judgment for McDougal’s client.

That was not the end of the case for James. In 1871, he rode into Gallatin with the aim of shooting McDougal, but failed. A decade later, a second attempt to shoot McDougal was also linked to James. None of that hurt McDougal’s career — he went on to become president of the Kansas City and Missouri bar associations and to partner with the lawyer who founded Shook Hardy. Even in the Wild West, it seems, justice prevailed. "

Posted by Robert J. Ambrogi on September 26, 2007 at 12:09 PM |

The New York Law Journal reports that some of the hedge fund legal malpractice action against Akin Gump have been dismissed.

"A New York state judge has granted Akin Gump Strauss Hauer & Feld’s motion to dismiss several claims filed against it by a former hedge fund client, but has permitted a fraud claim to go forward.

In February, James McBride and Kevin Larson, the principals behind the Veras series of funds, sued Akin Gump for $4.4 billion, claiming the firm advised them that the trading of mutual fund shares after the market close was a legal practice.

The funds, which had $1 billion in assets in 2003, were then investigated for "late trading" by the New York attorney general’s office and the Securities and Exchange Commission. Veras wound up paying more than $36 million in penalties before shutting down.

McBride and Larson each paid $750,000 and were barred from the industry. Their lawsuit had asserted 11 causes of action against Akin Gump, but Manhattan Supreme Court Justice Bernard Fried ruled Thursday in Veras v. Akin Gump that five of the causes of action, including negligence, negligent misrepresentation and breach of fiduciary duty, were duplicative of Veras’ legal malpractice claims.

The judge permitted Veras to proceed, however, with a claim that Akin Gump committed fraud by concealing conflicts "