How bad can it get?  This story from the Madison St. Claire newspaper, tells the story of a young hunter who is shot in the foot, and taken to a hospital.  There he is discharged, no one treats an infection, he gets gangrene, has toe amputated, hires attorney to sue doctor, and finds out that attorney did nothing.

This is a string of bad luck.  Will his legal malpractice lawyer now drop the ball?  Keep tuned. 

Anthony Lin in the NYLJ reports that a law firm which was successful in a $1.2 million dollar assault case may only take its 1/3 contingency fee.  It had charged another $ 450,000 for appellate and collateral work without an additional retainer, and without even a letter to the client.

"Lawyers whose original retainer agreement stated only that they would receive a one-third contingent fee must disgorge additional fees collected for an appeal and collateral litigation, a Manhattan judge has ruled.

Omar Siagha was assaulted in 1993 by a bartender at an Upper East Side restaurant called Ruby’s River Road Cafe. To pursue a claim against the restaurant, Mr. Siagha contacted lawyer Michael J. Rosenblatt, then an associate at the firm of Schwartz, Gutstein & Associates.

Mr. Rosenblatt soon thereafter left the firm to start his own practice and then to co-found Katz & Rosenblatt with attorney David Katz. The suit against the restaurant was filed by Katz & Rosenblatt, which later became Katz & Associates after Mr. Rosenblatt’s resignation. A jury returned a verdict of $1.2 million, which was affirmed on appeal. "

Following further litigation with the insurance companies, Mr. Siagha received a judgment of $1.7 million, from which Katz & Associates took a fee of around $870,000, including one-third of the award and legal costs relating to the appeal and collateral litigation.

The NYLJ reports today that

"A federal judge in Manhattan has thrown out a lawsuit filed against Paul, Weiss, Rifkind, Wharton & Garrison by the onetime private banker to former WorldCom Inc. chief executive officer Bernard Ebbers.

David H. Trautenberg, the former co-head of Citigroup’s private wealth management group, sued Paul Weiss in December for breach of fiduciary duty, claiming the law firm used against him in severance negotiations confidences it gained while jointly representing him and Citigroup in WorldCom-related matters.

The ex-banker received a $5 million severance package that he claimed would have been $25 million without Paul Weiss’ interference.

But Southern District Judge George Daniels said Mr. Trautenberg had failed to show that "but for" Paul Weiss’ actions, he would have received more money.

The judge noted that Mr. Trautenberg had not alleged in his complaint that Citigroup had ever offered or considered offering a $25 million severance package. The banker’s belief that he was owed that amount based on the book of business he left at Citigroup was "purely speculative," Judge Daniels said. "

We will note the decision later this week.

In another Estate and Beneficiary case, plaintiff loses in this Missouri case/  The Show Me Blog reports:

"Missouri court of Appeals Southern District dismisses deceased heirs’ combined suit against deceased’s second wife and the law firm that prepared their joint wills after widow disinherited the deceased’s children after he died."

Jeana Jackson, et al., v. Williams, Robinson, White & Rigler, P.C., John Williams, and Ellen Moore,  28041

"The possibility that Plaintiffs will be deprived of their inheritance because of the alleged negligence of Williams is, as of now, purely speculative and uncertain. Because it was not certain they would ever have an estate or any vested right to protect, nor that they would survive the life tenant). For the foregoing reasons, Plaintiffs have failed to state a claim for legal malpractice."

Law is the underlying organizer of all things human.  No part of society is truely lawless, and everything that has to do with the government is law based.  No surprise, but here is a blurb from farm and farmer rights activists, touching on legal malpractice.

"Some USDA employees, including a top official in the department, are organizing a lobbying campaign to eliminate a provision in the farm bill passed July 27 by the House of Representatives that would reopen a landmark civil rights case against the department for discrimination in providing farm loans to black farmers.

Deadline barred 64,000 claims, despite lack of notice.The settlement-funded arbitrator rejected 64,000 farmers who came forward with claims during the late claims process established by the court. The farmers’ attorneys, whose representation was characterized by the court as "bordering on legal malpractice," were responsible for properly notifying the farmers of the original deadline for application.

In this NJ Case, the client had an illetimate purpose in bringing the law suit.  Plaintiffs proved the case for malicious prosecution against the client, but not against  the client’s attorney.

Giordano, Halleran & Ciesla represented a beach club owner in a failed defamation suit against a neighbor. The neighbor, having won, countersued the club owner and the Middletown, N.J., firm, alleging the first suit had no purpose but to stifle her free speech rights maliciously.

The appeals court found, however, that lawyers cannot be liable for malicious prosecution unless they are acting for an illegitimate purpose of their own. And the fact that a client has an illegitimate purpose does not automatically mean the lawyer does too, the three-judge panel said in Lobiondo v. Schwartz, A-4325-04.

The decision "insures that representation will be available when the client’s claim has only marginal merit and may be pursued by the client for other than legitimate purposes," the court said."

"

Imagine having made enough on a case to have to repay $ 62 Million!   FromLaw Com:

"Three attorneys accused of bilking their clients in a diet drug settlement must repay at least $62.1 million in settlement funds and interest, a Kentucky judge ruled Friday.

Special Judge William Wehr ordered William J. Gallion, 56, Shirley A. Cunningham Jr., 52, and Melbourne Mills Jr., 76, to repay $42 million taken from the settlement and $20.1 million in interest. Wehr said the interest was 8 percent over the six years the attorneys had the funds.

The attorneys are being sued by about 400 former clients who claim the lawyers took too much money as part of a $200 million fen-phen settlement.

Gallion and Cunningham own a 20 percent stake in Curlin, who won the second leg of the Triple Crown in May.

A federal grand jury indicted the attorneys last month, charging them with conspiring to commit wire fraud in representing more than 400 people in a lawsuit over the diet drug. The lawyers, who were temporarily suspended from practicing law by the Kentucky Bar Association, have pleaded not guilty. Federal prosecutors want the lawyers to forfeit any assets they have to pay restitution to their former clients. "

Estate and surrogate proceedings create a unique problem in legal malpracitce.  May the estate sue the transactional [will] lawyer?  Does a beneficiary have a relationship with the attorney.  Here, in this case we see another face of the problem.  In Velasquez v Katz ,2007 NY Slip Op 06275 , Decided on July 31, 2007 ,Appellate Division, Second Department  the question is raised by the executor against the attorney handling a personal injury case for the deceased.

"In January 1994 the decedent Miguel Perez (hereinafter the decedent) commenced a medical malpractice action (hereinafter the underlying action) against Lutheran Medical Center (hereinafter Lutheran) alleging a failure to timely diagnose and treat his colorectal cancer condition. The decedent was represented by the defendant, Richard J. Katz. Thereafter, on September 16, 1994, the decedent executed his Last Will and Testament (hereinafter the Will), naming the plaintiff, his brother, as executor. The Will was retained in the defendant’s possession. On February 5, 1995, the decedent passed away from an unrelated cause.

The defendant alleged that soon after the decedent’s passing, he informed the plaintiff of the necessity of probating the Will in order to pursue the underlying action. However, the plaintiff [*2]did not retain the defendant or any other attorney for this purpose at that time. On May 14, 1997, more than two years after the decedent’s passing, the plaintiff went to the defendant’s office, obtained the Will, and signed an affidavit stating that he was taking the Will "for the purposes of having it probated by the Surrogate of Kings County." Nevertheless, another four years passed before the plaintiff took any steps to probate the Will. In fact, the plaintiff did not obtain provisional letters testamentary until December 28, 2001.

In August 2002 the Supreme Court granted a motion by Lutheran made pursuant to CPLR 1021 to dismiss the underlying action for failure to timely substitute a legal representative following the death of the decedent. Shortly before the motion was granted, the plaintiff commenced this legal malpractice action against the defendant alleging that he failed to timely move to substitute a legal representative in the underlying action. The defendant moved for summary judgment dismissing the complaint. In the order appealed from, the Supreme Court, inter alia, denied the motion finding that there were triable issues of fact. We reverse the order insofar as appealed from.

The plaintiff’s unilateral allegations that he was led to believe that the defendant continued to represent the decedent’s interests are insufficient to establish the existence of any continuing attorney-client relationship and thus inadequate to raise a triable issue of fact in opposition to the defendant’s motion for summary judgment (see Carlos v Lovett & Gould, 29 AD3d 847; Chinello v Nixon, Hargrave, Devans & Doyle, LLP, 15 AD3d 894; see also Moran v Hurst, 32 AD3d 909). Even assuming that the plaintiff was given the impression that the defendant continued to represent the decedent after his death, such a belief was unrealistic after May 1997, when the plaintiff retrieved the Will for the express purpose of having it probated (see e.g. Leffler v Mills, 285 AD2d 774) "