A fee arbitration notice is an absolute condition precedent, and must have been given to the client before starting an attorney fee lawsuit.  Here is a case from today in which a client "wins" the County bar fee arbitration, and the attorney seeks a de novo trial, only to have the case dismissed.

"PLAINTIFF LAW firm commenced this action against defendant client alleging defendant failed to pay for legal services rendered. Plaintiff moved for an order permitting it to file an amended summons and complaint asserting an action for a de novo review of the decision of the county bar associations fee dispute arbitration program. Defendant cross-moved for dismissal alleging the original summons and complaint was a nullity as plaintiff failed to offer defendant fee arbitration as required by the Part 137 Rules. The court agreed, ruling any covered action under 22 NYCRR §137.1(b) brought without having previously offered the client fee dispute resolution was a nullity"

Here is a case in which plaintiff was injured in a construction accident, and lost the case when it was discovered that the wrong parties were sued.  He turns to legal malpractice case, and avoids summary judgment in this decision.Hershorn v Grae, Rybicki & Partners, P.C. ,2007 NY Slip Op 06458 ,Decided on August 21, 2007 ,Appellate Division, Second Department

"The Supreme Court properly denied the defendants’ motion for summary judgment dismissing the complaint. The issue of whether or not Dinaso could be held liable for the damages alleged in the underlying action was not raised and necessarily determined in the underlying action (see Pinnacle Consultants v Leucadia Natl. Corp, 94 NY2d 426; Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481). Rather, the only issue necessarily determined was that the parties against whom the action was timely commenced, which did not include Dinaso, neither created nor had actual or constructive notice of the alleged dangerous and defective condition caused by the sheetrock. Accordingly, the issue of whether or not the plaintiffs would have prevailed in the underlying action but for the alleged negligence of the defendants in identifying and timely commencing the action as against Dinaso was not raised and necessarily determined in the underlying action, and dismissal of the action at bar was not warranted. "

Cleary Gottlieb may have gone too far, reports Anthony Lin at the NYLJ when it spoke with a potential deposition witness.  Did they represent the Congo too strongly?

"Manhattan federal judge has sanctioned Cleary Gottlieb Steen & Hamilton for improperly trying to dissuade a witness from testifying about his dealings with the Republic of Congo, which the New York law firm is representing in a dispute with a foreign hedge fund.

In a opinion issued last week, Southern District Judge Loretta Preska said Cleary had acted in "bad faith" by contacting witness Médard Mbemba, a French-Congolese businessman and onetime close friend of Congolese President Denis Sassou-Nguesso, and telling him his participation in a deposition could "destabilize" or "hurt" Congo.

The judge also credited later testimony by the witness that he felt threatened by the warnings delivered by Cleary partner Jean-Pierre Vignaud, because he knew the lawyer had "privileged connections" in the Congolese government.

"[Cleary] has shown a willingness to operate in the murky area between zealous advocacy and improper conduct, and here it crossed the line," Judge Preska wrote in Kensington International Ltd. v. Republic of Congo, 03 Civ. 4578. She ordered that a formal reprimand be circulated to all of Cleary’s 950 lawyers and that the firm be assessed the attorney’s fees for the sanctions motion. "

We have always thought that legal malpractice cases, with the "case within a case"  format were a wee bit more difficult than other litigation.  We had not factored in a "secret bias" aspect.

Federal Judge Dennis Jacobs thinks a little bit differently:

"Dennis G. Jacobs, the chief judge of the federal appeals court in New York, is a candid man, and in a speech last year he admitted that he and his colleagues had “a serious and secret bias.” Perhaps unthinkingly but quite consistently, he said, judges can be counted on to rule in favor of anything that protects and empowers lawyers.

Once you start thinking about it, the examples are everywhere. The lawyer-client privilege is more closely guarded than any other. It is easier to sue for medical malpractice than for legal malpractice. People who try to make a living helping people fill out straightforward forms are punished for the unauthorized practice of law.

But Judge Jacobs’s main point is a deeper one. Judges favor complexity and legalism over efficient solutions, and they have no appreciation for what economists call transaction costs. They are aided in this by lawyers who bill by the hour and like nothing more than tasks that take a lot of time and cost their clients a lot of money. "

"This month, a New Jersey appeals court basically immunized lawyers from malicious prosecution suits in civil cases. Even lawyers who know their clients are pushing baseless claims solely to harass the other side are in the clear, the court said, unless the lawyers themselves have an improper motive.

Lester Brickman, who teaches legal ethics at Cardozo Law School, said the decision was just one instance of a broad phenomenon.

“The New Jersey courts have determined to protect the legal profession in a way that no other professions enjoy,” Professor Brickman said. “It’s regulation by lawyers for lawyers.”

Other professions look for elegant solutions. It is the rare engineer, software designer or plumber who chooses an elaborate fix when a simple one will do. The legal system, by contrast, insists on years of discovery, motion practice, hearings, trials and appeals that culminate in obscure rulings providing no guidance to the next litigant.

Last month, Judge Jacobs put his views into practice, dissenting from a decision in a tangled lawsuit about something a college newspaper published in 1997. The judges in the majority said important First Amendment principles were at stake, though they acknowledged that the case involved, at most, trivial sums of money.

Judge Jacobs’s dissent started with an unusual and not especially collegial disclaimer. He said he would not engage the arguments in the majority decision because “I have not read it.”

He was, he said, incredulous that “after years of litigation over $2, the majority will impose on a busy judge to conduct a trial on this silly thing, and require a panel of jurors to set aside their more important duties of family and business in order to decide it.”

Writing with the kind of verve and sense of proportion entirely absent in most legal work, Judge Jacobs concluded that “this is not a case that should occupy the mind of a person who has anything consequential to do.”

Attorney A hires Attorney B to help in a big antitrust law case, and promises 10% of the fee will go to Attorney B.  When Attorney A is paid, he refused to send 10% to attorney B.  From there, it all goes bad, and after 10 years, Attorney A has to pay not $ 23,000, but rather $ 250,000.

Law.Com reports: "Refusing to pay $28,000 in attorney fees a decade ago has turned into a more than $250,000 headache for Houston attorney Robert S. "Bob" Bennett.

In an Aug. 16 memorandum opinion in Bennett v. Coghlan, a three-justice panel of Houston’s 1st Court of Appeals affirmed an award of tens of thousands of dollars in attorney fees that lawyer Kelly Coghlan says he had to run up trying to collect attorney fees Bennett owed him .Coghlan says Bennett received about $250,000 of the approximately $9 million in attorneys’ fees the federal court awarded after the Mrs. Baird’s litigation settled in 1996, but Bennett refused to pay Coghlan’s bill for $28,000 and instead sent him a check for $5,000 on April 3, 1997. But Coghlan says he returned Bennett’s check.

"He sort of gave me a tip," Coghlan says. "I took umbrage at that."

A Federally recognized Indian Tribe Casino right next to Disneyland in California?  How is it possible that in the middle of Orange County there can be an unknown, unrecognized yet legitimate Indian Tribe, which might have the right to a Casino?

We don’t know, but the players and participants are already involved in legal malpractice cases.

" GARDEN GROVE – Jonathan Stein believes his tribe is going to build a casino a few blocks away from Disneyland in the heart of Garden Grove.

The Santa Monica attorney and New Jersey native is not a member of the Gabrielino-Tongva Indian tribe or even a resident of Orange County. But as the tribe’s chief investor, Stein is the driving force behind an ambitious, long-shot attempt to reshape the landscape of Orange County’s high-profile resort area by bringing in the county’s first gaming casino.

If built, the casino resort – plans call for high-end hotels, slot machines, card tables, upscale stores and other entertainment venues – is projected to generate about $70 million for the city annually.

Stein’s history with Indian tribes started in 2001 when he got together with Sam Dunlap, a Gabrielino, and helped him form the Gabrielino Tribal Council, with the goal of helping the tribe secure gaming rights.

The group fell out with Stein, and each party ended up suing the other. Stein alleged that the group did not pay him what was owed to him. The group accuses Stein of breach of fiduciary duty and trust; legal malpractice and misappropriation of trade secrets, according to court filings.

Tribal vice chairman Martin Alcala said he believes Stein led them down the wrong path by telling them they did not need federal approvals.

"He wanted to take control of everything, including the money," Alcala said. "And when we parted company, he did everything in his power to destroy us."

But Stein dismisses that contention and maintains that it was he who raised more than $20 million from Wall Street for the tribe.

"I spent more than five years unifying the tribe," Stein said. He says the Santa Monica Gabrielinos account for a little over 80 percent of the total Gabrielino population in the country.

Yesterday we reported on a legal malpractice case in which the attorney "helped" the client to get insurance payments, but did not bring a personal injury action against the pilot or the owner of the private plane which crashed into plaintiff’s house.

Today the Poppe Law Firm Blog reports that "In one of the largest legal malpractice verdicts in Kentucky history, a jury returned a verdict today against attorney Steve Keeney for $5 million. The allegations of legal malpractice arise out of his handling of a case for Brenda Osborne, of Middlesboro. The Jefferson Circuit Court jury determine that Keeney lost a federal court case stemming from the an airplane accident in which she could have recovered about $1.3 million (this is known as the "case within a case." It awarded her that amount, as well as $250,000 for mental anguish. The jury also voted 11-1 to award of $3.5 million in punitive damages, which are meted out to deter and punish intentional and willful misconduct.

This was an unusual case because Osborne was not physically injured when a small plane crashed into her home. She escaped her home without physical injury–however, Keeney told her the case was worth about a $1 million. This jury agreed with her; however, it’s Keeney’s legal malpractice insurance company that will have to pay the verdict, not the pilot of the plane. "

A judge is hired to write a will for a disabled man, and it all ends up with the Judge being sued and then having to give back $ 1.2 million in fees and 600 acres of land.  It’s the middle part we cant figure out.

"A Washington County judge has been ordered to repay $1.2 million to a woman he represented in an estate case and give her back 600 acres of land, according to a Mobile County Circuit Court ruling.

Stuart DuBose, who was elected last year to serve as circuit judge over Choctaw, Clarke and Washington counties, responded in a letter faxed to Mobile County Circuit Judge John Lockett by saying that Lockett’s ruling was "not legal" and "immoral."

"This order must not become public knowledge," DuBose wrote. "It must not be recorded. It will ruin me professionally and further ruin me financially According to court documents, Weaver soured on DuBose shortly after Sullivan died. After DuBose clarified in a letter that his cut of the estate was a fee of 40 percent, or about $1.2 million, she fired him as her attorney and tried to drop him as the estate’s lawyer.

Weaver sued DuBose, accusing him of malpractice, misrepresentation and negligence, as well as designating himself both the attorney for the estate and for Weaver without ever informing her of a potential conflict of interest. That suit was tossed out.

The original settlement was kept confidential. Court files do not specify all the terms of the settlement or make clear Lockett’s reasoning for ruling that DuBose failed to live up to the terms.

Lockett ruled that DuBose or the Sullivan estate must pay Weaver $1.19 million. In addition, Lockett said DuBose must return three parcels totaling 605 acres to Weaver within 30 days because DuBose violated the settlement order when splitting Sullivan’s land between his law firm and Weaver "