Recent legislative changes to CPLR 2001 and to filing statutes  have cleared out some well known, but still troublesome traps for the unwary.  Many cases have been dismissed because a practitioner re-used an index number for a new case.  An example:  plaintiff starts a special proceeding seeking leave to file a late notice of claim, succeeds, and then files a summons against the municipality under the original index number.  Another example:  practitioner starts a special proceeding by filing with the Supreme Court clerk rather than the County Clerk.

Here is an article from the NYLJ by Palu Aloe.Chapter 529 aims to give some relief for those who file papers incorrectly.2 It amends CPLR 2001, which permits courts to overlook nonprejudicial mistakes, to include mistakes in the filing of the initial process, including the failure to pay the index number fee or acquire an index number, provided the applicable fee is paid.3 This measure became effective on its signing on Aug. 15, 2007. Although, the apparent focus of the bill appears to be cases in which the index number fee is not paid because the summons is filed under a previously obtained index, the legislative history indicates a more expansive purpose and is intended "to correct or ignore mistakes or omissions occurring at the commencement of an action that do not prejudice the opposing party, in the same manner and under the same standards that it already does with regard to all other nonprejudicial procedural events."4 Although not explicitly stated, this would appear to apply to other types of filing mistakes, such as filing of the initial papers in the wrong office, as was the case in Matter of Mendon Ponds Neighborhood Assn. v. Dehm, 98 NY2d 745, 747 (2002). It appears intended to repudiate arguments that strict adherence to CPLR 304 is required for commencement, and any defect in the filing process will result in dismissal so long as there is a timely objection by the defendant. Instead, the new regime requires that the defect in the filing process actually results in some actual prejudice to the defendant, and if no such prejudice can be shown, then the defect is to be ignored."

Motion dates and service are also changed. "The timing of motions under New York practice has long been a source of problems. The time frames, unrealistically short, are rarely followed and usually just the starting point for a discussion between counsel of a briefing schedule, or worse, a series of appearances at a calendar call and a request for adjournments so that answer and reply papers may be submitted. Chapter 185 seeks to step into this morass, but it does so in a manner not wholly satisfactory, and adds as many problems as it solves. It amends CPLR 2214(b) to require the moving party seeking a reply to serve the motion 16 (instead of 12) days before the return date. If 16 days are provided, then answering papers and any notice of cross-motion must be served seven days in advance of the motion. CPLR 2214(b) further provides that reply as well as "responding" affidavits must then be served one day in advance. "Responding" affidavits presumably means affidavits in response to the cross-motion, although the new statute is not explicit, and in fact, continues to provide no response for a cross-motion served two days in advance of the motion (which still can be served if the moving party does not provide the extra notice)."

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Hinshaw reports that this attorney was granted coverage in Legal Malpractice coverage for work done:“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. "

Here is the Popper take on this strange GA legal malpractice case.  Did the defendant attorneys really take a car case to trial without speaking with the defendant?  Did they admit liability without his permission?  Why did the jury award only 1/2 of the damages? 

Was there a settlement of the underlying case for less than the verdict?  Were there other defendants [owner, lessor] who were found liable?

We’ll keep looking into this case.

 

Not in Florida, and not likely in New York either.  Lender retained attorney to start a foreclosure.  He did not.  Lender started legal malpractice case, and assigned both the foreclosure, the loan, the mortgage, as well as the legal malpractice case.  Florida court did not permit the suit,  Hinshaw reports:

"Florida Supreme Court underscores adherence to not permitting assignment of legal malpractice claims.  Law Office of David J. Stern, P.A. v. Security National Servicing Corp.,___So. 2d___2007 WL 1932251 (Fla. 2007)

In Security National Servicing Corp. v. Law Office of David J. Stern, P.A., 916 So.2d 934 (Fla. App. 2005), the District Court of Appeal of Florida, Fourth District, cited prior Florida precedent regarding cases in which a legal malpractice claim arose from a lawyer’s failure to timely file a foreclosure action, such as that before the court. An appeal to the court followed. While the appeal was pending, the client assigned both the subject loan and the client’s legal malpractice claim to plaintiff.

The trial court granted summary judgment in favor of defendant on the ground that the cause of action was not assignable. The appellate court acknowledged that rule, but distinguished the case on appeal, stating that the subject policy factors were not present. Specifically, plaintiff was not an adversary; there was no risk of disclosure of confidential information; and there was no risk of the commercialization of legal malpractice claims. Citing Cowan Liebowitz & Latman, P.C. v. Kaplan, 902 So. 2d 755 (Fla. 2005) and Cerberus Partners, L.P. v. Gadsby & Hannah, 728 A.2d 1057, 1061 (R.I. 1999), the court allowed the assignment."

Until three years ago a personal injury attorney knew that a trip and fail on a NYC sidewalk meant that a Big Apple map was needed.  Then the law changed, and the attorney needed to know who owned the adjacent building.  Now, a new wrinkle.  The adjoining landowner is responsible for the sidewalk, but the City remains responsible tree wells and trees.

Vucetovic v Epsom Downs, Inc. 2007 NY Slip Op 06577, Decided on September 6, 2007
Appellate Division, First Department, Buckley, J., J. "At issue on this appeal is whether tree wells are part of the "sidewalk" for purposes of Administrative Code of the City of New York § 7-210, which requires owners of real property to maintain abutting sidewalks in reasonably safe condition.

Title 19 of the Administrative Code, "Streets and Sidewalks," defines "sidewalk" as "that portion of a street between the curb lines, or the lateral lines of a roadway, and the adjacent property lines, but not including the curb, intended for the use of pedestrians" (Administrative Code § 19-101[d] [emphasis added]). Neither trees nor tree wells are "intended for the use of pedestrians," and therefore they are not part of the sidewalk.

Administrative Code § 18-104 entrusts the Department of Parks and Recreation with "exclusive jurisdiction" over "[t]he planting, care and cultivation of all trees and other forms of vegetation in streets." The "care" of the trees would necessarily entail the tree wells, which encompass soil and roots. Moreover, the statute makes evident that the trees are "in streets," and thus something separate and distinct from streets. The Department is to "employ the most improved methods for the protection and cultivation" of trees under its "exclusive care and cultivation" (Administrative Code § 18-105), which would include tree wells, which exist for the protection of trees. "

Here is a case, reported by Hinshaw in which a firm was required not only to disgorge fees based upon its malpractice, but had to pay the client’s legal fees generated in the dispute.

"In re SRC Holding Corp., f/k/a Miller & Schroeder, Inc., Debtor – Bremer Business Finance Corporation v. Dorsey & Whitney, LLP, Memorandum Opinion and Order, 2007 WL 1464385 (D. Minn.)

Risk Management Issue: What should a law fi rm do when it realizes it has developed a confl ict of interest with its client, or arguably has made an error that could harm the client?

The Case: Dorsey & Whitney was engaged by Miller & Schroeder, an investment banking fi rm, to close a loan transaction to President, a management company, which had contracted with the St. Regis Mohawk Tribe to build and operate casinos. Miller & Schroeder placed the loan with several different investors, including Bremer Business Finance Corporation. The loan package required approval of the National Indian Gaming Commission (“NIGC”) in order to be enforceable against the tribe. Dorsey submitted the loan to the NIGC for approval, but the approval was not obtained before the fi nancing package closed, and the NIGC never gave its consent. When the casino project failed, President became insolvent and the tribe refused to repay the loans.

Bremer fi led suit against Dorsey & Whitney and, as reported in our December 2006 issue, a bankruptcy judge denied the law fi rm’s motion to dismiss the malpractice claim. The law fi rm claimed it only represented Miller & Schroeder, which brokered the loan, and not the individual banks who participated in it; Bremer contended it was a client with standing to sue for malpractice and the bankruptcy judge agreed. Recent Developments: Dorsey’s appeal from the bankruptcy judge’s Recommendations and Order was decided on April 7, 2007, by U.S. District Court Judge Donovan Frank. Judge Frank affirmed the bankruptcy court’s determination that Bremer had standing to sue the law firm, finding that a direct attorney-client relationship existed as of June 2000. Judge Frank agreed that the law firm violated its ethical duties by failing to disclose a potential malpractice claim involving allegedly erroneous advice, and he ultimately upheld the prior order that the law firm must disgorge nearly $900,000 in fees received from Miller & Schroeder and pay Bremer’s legal costs of around $409,000 as well. "

We were told early in life not to talk so much.  This advice may have served the Larkin Law firm well in its dealings with a client.  This report of a question certified to an appellate court, is an example.

"Madison County Circuit Judge Barbara Crowder wants appellate judges to decide whether an attorney-client relationship existed between the Lakin Law Firm and a woman whose injury claim the firm chose not to pursue.

Crowder on Aug. 23 certified questions to the Fifth District in Mount Vernon about the firm’s dealings with Suzanne Krause of Tennessee.

The Fifth District’s answers will determine whether Krause can seek damages from the Lakins on a claim of legal malpractice.
In 2004 Brad Lakin sent the family a letter stating, "After reviewing the information that we have we believe that the case would be extremely difficult to prove."

He wrote that if they wanted to pursue the claim they should contact another attorney.

"Please remember, the statute of limitation on your case is two years from your daughter’s eighteenth birthday," he wrote.

Last year she sued former Lakin lawyer Scott Bruce Meyer, the firm, Brad Lakin and his father Tom Lakin.

Her attorney, Kevin McQuillan of Downers Grove, claimed the Lakins breached their duty to her in their investigation.

He claimed the statute of limitations was one year, not two."

The advice usually given is to say simply that there is a statute of limiations and the clinet should obtain advice how to proceed.

Attorney Fee disputes can be a landmine, a source of big problems, and a constant source of legal malpractice litigation.  Here is yet another report of a Texas Case.

"For nearly six years, a prominent Dallas plaintiffs firm has battled a former client in an attempt to recover a contingent fee. But after a three-day trial, it was the former client who won the war. On Aug. 21, a Tarrant County jury awarded $1.4 million in damages to defendant Robert L. French.

In its 2001 petition in Law Offices of Windle Turley v. Robert L. French, et al., the firm alleged that a former client took his medical-malpractice case to another lawyer without paying the Turley firm for the legal work it already had done on his case. Under the Texas Supreme Court’s 1969 opinion in Mandell & Wright v. Thomas, when a client discharges an attorney without good cause before work has been completed, the attorney may recover on the fee contract for the amount owed.

Windle Turley says his firm sued its former client because it was a matter of principal. In its petition in French, the firm asserted a quantum meruit claim to recover for the work performed in the med-mal suit.

In 2005, French countersued the firm alleging intentional infliction of emotional distress. While the jury awarded zero dollars on the Turley firm’s suit, it awarded $1.4 million to French on his countersuit.

Three professional liability attorneys say the jury’s award in French is an example of why firms that sue clients over fees need to be careful — a sentiment with which Turley agrees.

"It is risky to ever bring an action against a client," says Turley, who is asking Judge Len Wade of the 141st District Court of Tarrant County to set aside the verdict. "And I don’t ever like to go the judicial route to enforce a contract. However, having said that, there are occasions in which the circumstances compel an attorney seeking judicial assistance."

Turley still believes the fee dispute in French justified the firm’s suit. His firm sued French to prevent clients from taking away cases and not paying for the work. Turley believes the verdict — if it stands — will weaken the contingent-fee contracts plaintiffs attorneys sign with their clients.

"It’s very, very unfortunate," says Turley of the verdict. "And I think it’s a distressing sign of the times."

We reported on this last month, but here is a Hinshaw report on a legal malpractice case in which an attorney lost a medical malpractice case in illinios, and at the same time failed to tell the client about a $1 Million offer.  He is found liable to the client for the amount of the offer.