The axiom is that the gears of the law grind thoroughly, but slowly.  Here is an article from the Madison Record which has asiduously followed the Lakin Group legal malpractice law suit.  Now, defendant’s attorney has to report his client’s address, so that Lakin can be served with a deposition notice.  He didn’t.  The Story: "Tom Lakin’s attorney doesn’t know where Tom Lakin lives.

Michael Nester of Belleville, defending Lakin in a legal malpractice suit, missed a Sept. 24 deadline to report Lakin’s address to Madison County Circuit Judge Barbara Crowder.

Nester had written Sept. 14 that upon information and belief, Lakin resided in Florida.

Nester asked Crowder for a 10 day extension to confirm Lakin’s residence, but 10 days later the mystery persisted."

We follow the new appellate decisions in the Case Prep Plus site.  Here is the full note on a case from this week entitled Harrison v Good Samaritan Hosp. Med. Ctr.    2007 NY Slip Op 06833
Decided on September 18, 2007 . Appellate Division, Second Department
:

"CIVIL PROCEDURE. CPLR 3126 NOTICE. FAILURE TO PROSECUTE. In this medical malpractice action, granting of plaintiff’s motion to vacate prior order dismissing the complaint, which was based upon defendant’s unopposed motion to dismiss for failure to prosecute, is affirmed. CPLR 3126 requires either the court or defendant to serve plaintiff with a written notice to resume prosecution within 90 days and that failing to do so will serve as a basis for a motion to dismiss. Here, because defendant’s notice only demanded that plaintiff resume prosecution of her action, the Supreme Court was without authority to dismiss the action under CPLR 3126. Harrison v. Good Samaritan Hospital Medical Center. [Editor’s comment: defense counsel might be subject to a legal malpractice claim should the case settle or result in a plaintiff’s verdict and judgment.]

We needed a graph to try to figure out who did what to whom in this case. Levy v Laing
2007 NY Slip Op 06765  Decided on September 18, 2007  Appellate Division, First Department

" In 1986, defendant Jeffrey Laing retained plaintiff John Corcos Levy, Esq., for a one-third contingency fee, to prosecute a legal malpractice action against the law firm of Bushin & Rosman (B & R) for B & R’s alleged negligence in an underlying personal injury action. In 1989, an order granting B & R’s motion for summary judgment dismissing the legal malpractice action was reversed by this Court (149 AD2d 351). In 1990, Laing substituted the law firm of Gandin, Schotsky & Rappaport (GSR) for Levy. Levy and GSR then entered into a letter agreement giving Levy a 30% share in GSR’s fee.

In 1993, the B & R legal malpractice action was marked off the calendar for Laing’s failure to appear at a pretrial conference. Four years later GSR attempted to file a note of issue but a second motion by B & R to dismiss the action, this time pursuant to CPLR 3404, was granted. We affirmed (255 AD2d 113 [1998], lv dismissed 93 NY2d 957 [1999]).

Thereafter, in 2000, Laing retained the services of Andrew MacAskill, Esq. to commence a second legal malpractice action, this one against GSR, whose actions and/or inactions during the four-year hiatus had resulted in the final dismissal of the malpractice action against B & R. In 2004, the action against GSR settled for $125,000.

Now, in this action, Levy, appearing pro se, sues former client Laing to recover $10,000 as the reasonable value of his services in the B & R action. He claims that after assisting Laing in the GSR malpractice action, he advised Laing of his position that he was entitled to compensation for the work he did prior to their parting and Laing’s retention of GSR. In response, Laing sent Levy $1000, which Levy rejected. "

Being a defendant is bad; being an erring plaintiff’s attorney is probably worse.  Here is a case from Broolklyn in which a well known plaintiff’s personal injury attorney now must show cause why she and her client were not frivolous.  Basically, it is said that they sued the wrong landowner, and did not dismiss after being shown their mistake.

Robertson v. United Equities Inc., 35178/04
Decided: August 31, 2007
Justice Arthur M. Schack

KINGS COUNTY
Supreme Court

Plaintiff: Regina Felton, Esq.

Felton & Associates

Defendant: Eli D. Gobol, Esq.

Goldberg Weprin & Ustin LLP

Justice Schack
Click here to see Judicial Profile

"Defendant, United Equities, Inc. (UEI), moves to: restore this matter to the Court calendar; grant summary judgment and dismissal to defendant UEI, pursuant to CPLR Rule 3212; and, impose sanctions and costs of $16,343.75 against plaintiffs and/or their attorney, pursuant to 22 NYCRR §130-1.1, because UEI it is not a correct entity to sue in this action. The Court restores this matter to the calendar to: grant summary judgment to UEI and dismiss the complaint against it; and, conduct a hearing, which will give plaintiffs and their counsel, Regina Felton, Esq., an opportunity to be heard as to why this Court should not sanction them and/or award defendant UEI costs for the "frivolous conduct" of plaintiffs and their counsel in continuing this action against UEI, a corporation that should never have been a party in this action. "

Here is a blog commenting on a blog commenting on a blog.  It demonstrates the viral nature of this medium.  More to the point, it disucsses the relationship between a plaintiff, a defendant, his auto insruance comapny and the attorneys selected by the insurer.  As all know, there is an inherent conflict between the attorney, the insured and the insurer.  How this all plays out in legal malpractice and bad faith litigation is the subject of these cases.

"While perusing the Indiana Law Blog, I came upon this post entitled Ind. Decisions – Supreme Court decides insurance assignment case.

In this case styled State Farm Mutual Automobile Insurance Co. v. Ruth Estep, in which State Farm had offered its limits which were declined by the plaintiff. State Farm continued to defend, but a verdict was obtained against their insured in excess of those limits. The defendant assigned globally his/her causes of action to include those against State Farm and the lawyer whom they paid to defend the insured.

The Indiana Court held the assignment of the claim against State Farm was valid but not the legal negligence claim’s assignment.

This is an interesting thought since within the context of Kentucky jurisprudence, the fabled "tripartite" relationship in which the lawyer owes a duty to both the insurer AND the insured might be possibly suspect in the event that a conflict of interest arises, an excess verdict, a perceived legal malpractice in the representation, and then the subsequent assignment by the individual defendant of his claims against his insurer and his lawyer. Even if the assignment of the legal negligence claim is "disallowed", how then do you separate the two sides of that tripartite relationship when the relationship goes sour.

Could this happen in Kentucky? Well, let me remind you that insurance defense lawyer’s duties are being tested in the Court of Appeals in a case that has already been argued in which the focus is on which insurance policy will end up paying the plaintiff’s excess judgment? The insurance defense law firm’s malpractice policy or the insurance company that paid/hired them? See, Insurance Defense Lawyers Duties, Responsibilities, and Liabilities to be tested in Court of Appeals decision argued this past week which we posted this spring. "

We guess that this is Web.3   Its a podcast  [that is, a audio web broaddast] on the use of computers, cumputer security and legal malpractice.  "
Jim Arden, a California litigating attorney who focuses on attorney malpractice and legal ethics, discusses the issues of computer security. Technology is a great tool that allows us to be more effective and more efficient. Along the way, however, we can have our tools corrupted"

From the Madison Record::

"Madison County Circuit Judge Barbara Crowder overlooked the obvious when she asked appellate judges if the Lakin Law Firm represented a woman, according to the woman’s attorney.

George Ripplinger of Belleville, representing Suzanne Krause, asked Crowder on Sept. 13 to vacate an order she signed Aug. 23, certifying questions about the Lakins to the Fifth District in Mount Vernon.

Crowder’s order found substantial ground for difference of opinion, but Ripplinger’s motion yielded no ground for difference of opinion.

Ripplinger wrote that Lakin attorney Scott Meyer was actively involved day to day in Krause’s personal injury claim.

As a minor by the name of Suzanne Topps, she suffered injuries when a tree limb fell on one of her legs in Tennessee. "

Anthony Lin, in the NYLJ, reports on this securities based legal malpractice law suit:

"Cadwalader is one of the nation’s top law firms when it comes to securitizations, and its large practice in the area has helped catapult the firm to the top of the profitability charts over the past few years. Such transactions involve the creation and issuance of tradeable securities tied to fixed assets or revenue streams, most commonly residential or commercial mortgages.

Nomura Asset Capital Corp., a U.S. division of Japan’s largest securities firm, filed suit against Cadwalader last October in Manhattan Supreme Court over documents the law firm drafted for a 1997 securitization transaction in which Nomura pooled 156 commercial mortgages worth around $1.8 billion.

At issue in the Nomura suit are two separate warranties Cadwalader included in the documents for the transaction. Both warranties stated that each mortgage included in the pool "qualified" for special tax status under Internal Revenue Service regulations. But one warranty more specifically stated that this meant the mortgages were backed by properties worth at least 80 percent of the mortgage amounts.

That second warranty became a problem for Nomura after a number of the mortgages went into default. LaSalle Bank, which was holding the securitized pool in trust, sued Nomura on the grounds that the defaulting mortgages were not qualified, with one large mortgage secured by property worth only around 60 percent of the loan.

Nomura hoped to escape liability on the basis of a "safe harbor" provision of the IRS regulations, which state that mortgages should be 80-percent secured by property but allow that an issuer’s "reasonable belief" about a property’s value may be sufficient to qualify a mortgage. "

Attorneys are retained by persons, not entities, yet they come to represent entities, not only persons.  Here is a report from Hinshaw which discusses, in part, the problems of representation of the estate versus the executor, the statute of limitations, and related issues.

Estate of Albanese v. Lolio, 393 N.J. Super. 355, 923 A.2d 325 (2007)

"A New Jersey appellate court recently decided a case in which an estate, its executrix and two co-beneficiaries sought to recover for defendants’ allegedly negligent advice regarding the payment of federal estate taxes. That advice allegedly resulted in increased tax liability for the beneficiaries. The subject engagement agreement provided that the executrix retained defendant law firm “as attorneys to represent the Estate.” The agreement further provided that the attorneys would “advise us and cause all necessary and proper steps to be taken for the purpose of fixing and paying any and all Federal and state estate taxes.” It was signed by the executrix in her capacity as executrix and “individually.”

To pay the taxes, the executrix withdrew funds from an IRA and made distributions to each individual plaintiff, resulting in each one being liable for $298,000 in taxes, without being advised by defendants of the tax exposure or the alternatives. The lawyers contended that they were retained by the executrix solely in her capacity as executrix and owed no duty to the beneficiaries. The court rejected that argument because the executrix had also signed as an individual. But it agreed that the co-beneficiaries lacked standing to sue. "

An ironic situation in legal malpractice is the inverse matchup of legal fees in residential real estate legal fees [especially for buyer] and the potential loss when the attorney fails his due dilligence.  Examples?  Bad title searches, poor monitoring of the deed filing, and this article:

"More dangerous is the issue of what if it’s the previous owner’s loan that was wrongly recorded. The previous owner is obviously no longer making payments on the property. The lender may or may not have been paid off properly; if they were there may not be any difficulties. It could just disappear into some metaphorical black hole of things that weren’t done right and were never corrected, but just don’t matter because everybody’s happy and nobody does anything to rock the boat. However, unlike black holes in astronomy, things do come back out of these sorts of black holes.

However, if the previous lender was not paid off correctly, or if they were paid but something causes it to not process correctly, they’ve got a claim on your property, and because the usual title search that is done is county-based, it won’t show up in a regular title search. Let’s face it, property in County A usually stays right where it’s always been, in County A. There is no reason except error for it to be recorded in County B. Therefore, the title company almost certainly would not catch it when they did a search for documents affecting the property in County A; it would be a rare and lucky title examiner who caught it.

In some states, they still don’t use title insurance, merely attorneys examining the state of title. When the previous owner’s lender sues you, you’re going to have to turn around and sue that attorney who did your title examination for negligence, who is then going to have to turn around and sue whoever recorded the documents wrong. If it’s a small attorney’s office and they’ve since gone out of business, best of luck and let me know how it all turns out, but the sharks are going to be circling for years on this one, and the only sure winners are the lawyers.

In most states, however, the concept of title insurance has become de rigeur. Here in California, lenders don’t lend the money without a valid policy of title insurance involved.

Let’s stop here for a moment and clarify a few things. When we’re talking about title insurance, there are, in general, two separate title insurance policies in effect. When you bought the property, you required the previous owner to buy you a policy of title insurance as an assurance that they were the actual owners. By and large, it can only be purchased at the same time you purchase your property. This policy remains in effect as long as you or your heirs own the property. The first Title Company, which became Commonwealth Land Title (now part of LandAmerica), was started in 1876, and there are likely insured properties from the 19th century still covered. If you don’t know who your title insurance company is, you should. Most places, the company and the order of title insurance are on the grant deed. "

 

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