Malpractice is a professional’s failure to use minimally adequate levels of care, skill or diligence in the performance of the professional’s duties, causing harm to another. In New York, attorney malpractice is defined as a "deviation from good and accepted legal practice, where the client has been proximately damaged by that deviation, but for which, there would have been a different, better or more positive outcome."

Malpractice typically occurs when a professional fails to exercise his or her professional skills in an assignment at the necessary standard of care, skill and learning applied under the circumstances by the average prudent reputable member of the profession in the "community". The analysis is based upon the standard of care for the professional in the community" what other professionals in the same field do for their clients who are located in the same geographic area. In New York, courts will hold all attorneys to the same standard of professional performance.

The first necessary element is a professional relationship. In order to sue for professional malpractice, the plaintiff must have retained the attorney. There must of course be a relationship in privity, between the professional and the plaintiff such that the professional owes the plaintiff a duty. In attorney malpractice either a written retainer, proof that the attorney engaged in work or proof that the attorney appeared for the client is necessary. While in litigation often there is clear proof of representation; in transactional settings, representation may be less clear. Proof to a jury’s satisfaction of actual representation must be demonstrated. This proof may come from the correspondence of the professional, from papers authored by the attorney or from litigation documents.

This shocking medical malpractice case was won by attorney Larry Eisenberg in California.  Reading to the bottom, even though this attorney cracked the med mal case, he is now being sued in legal malpractice by the first client in the liver series.

"The University of California has agreed to pay $7.5 million to settle 35 claims filed on behalf of patients who waited in vain for liver transplants at UCI Medical Center and who were unaware that the school’s program lacked the staffing to perform the life-saving operations.

The university closed the program in November 2005 after The Times reported that 32 patients died awaiting operations, even as the hospital in Orange turned down scores of organs proffered on their behalf.

A subsequent investigation resulted in a rapid-fire series of resignations, reorganizations and vows to restore the credibility and oversight of the Irvine school’s medical programs.

The agreement by the UC Board of Regents to settle the cases largely closes the book on another embarrassing chapter in the history of UCI’s medical programs, which have been plagued by various lapses over the years: the theft of eggs and embryos from patients in a fertility clinic, the failure to properly keep track of bodies in its medical cadaver program and failings in other transplant programs such as kidney and bone marrow.

The fertility cases were settled for $20

Elodie Irvine, a former client of Eisenberg’s, was not impressed with the settlement.

Irvine’s case prompted the investigation of the transplant center, but she has since alleged that Eisenberg bullied her into accepting a $50,000 settlement. She won an appeals court ruling in April setting aside the original settlement so she can pursue a new case. She has also filed a legal malpractice case against Eisenberg.

California attorney was approached by a new client.  Elder Law Answers  reports that the new client, an elderly woman came with an "advisor" for whom she wanted to get a power of attorney.  The advisor was helping the client by supplying vicodan and marijuhana.  When the advisor stole her money, she turned and sued the attorney in Legal Malpractice. 

"California appeals court has dismissed a legal malpractice suit against an attorney who allowed a client to appoint an untrustworthy individual as her agent under a power of attorney, allegedly without investigating the attorney-in-fact’s background.

In 2004 Diane Mills, who had a long history of mental illness and drug abuse, met Robert Kahuanui. Mr. Kahuanui gained Ms. Mills’s trust and began supplying her with the painkiller Vicodin and marijuana. Ms. Mills subsequently became convinced that her estranged husband was trying to have her committed. Mr. Kahuanui persuaded her that the way to avoid this was for Ms. Mills to appoint him as her attorney-in-fact under a power of attorney.

Accordingly, Mr. Kahuanui located an attorney, Charles A. Triay, and Mr. Kahuanui and his wife accompanied Ms. Mills to see Mr. Triay. Even though Ms. Mills appeared to be impaired, Mr. Triay prepared the power of attorney as well as a will and a health care directive for Ms. Mills. He failed to meet with Ms. Mills alone and he later delivered the prepared documents to Mr. Kahuanui, not Ms. Mills. Over the next several months, Mr. Kahuinui and his wife stole thousands of dollars from Ms. Mills and sold much of her property, although Mr. Kahuanui apparently never actually used the power of attorney to appropriate any of Ms. Mills’s property.

Ms. Mills sued Mr. Triay for legal malpractice, alleging that Mr. Triay was professionally negligent for allowing Ms. Mills to select as her attorney-in-fact an untrustworthy individual without adequate investigation of his background. The trial court dismissed the case against the attorney, finding that Ms. Mills had failed to connect Mr. Triay’s conduct with Mr. Kahuanui’s misdeeds. Ms. Mills appealed, and the California Court of Appeals agreed with the trial court. Neither court, however, considered whether Mr. Triay violated California’s rules of professional responsibility for attorneys ."

We know that there are now specific rules about depositions in New York, and we are familiar with the "barking dog" deposition case here too.  New Jersey has its own story:

"Rough spots are common on the road of civil litigation, but it’s not every day that a plaintiffs attorney sues his adversary for asking "inhumane" questions during a deposition that allegedly inflict "grievous emotional distress."

That’s the thrust of a suit filed July 11 in Essex County, N.J., in which Bruce Nagel claims Judith Wahrenberger, his adversary in a medical malpractice case, acted tortiously by asking a husband whether he felt his wife had played a role in the death of their infant daughter by handling the child roughly.

"Wahrenberger’s unsupported and intentional attack upon the parents was beyond any acceptable behavior of a civilized human being," alleges Nagel, of Nagel Rice in Roseland, N.J.

Wahrenberger, the attorney for an emergency room physician at St. Barnabas Medical Center in Livingston, N.J., says she had an obligation to pursue the line of questioning because an autopsy showed the baby had a subarachnoid brain hemorrhage, which can be a sign of shaken-baby syndrome.

"I would not be doing my job if I didn’t explore these areas," says Wahrenberger, of Springfield, N.J.’s Wahrenberger, Pietro & Sherman. "We were talking about negligent homicide. As heartless as he says I was, the last thing I would be is cruel."

The underlying medical malpractice complaint was filed on Jan. 17, six months after the child died. The parents, Andrew and Phyllis Rabinowitz, alleged they tried to get their 6-day-old daughter admitted to St. Barnabas for breathing problems but were told by emergency room physician Lynn Reyman that the infant had only a common cold. The baby died two days later in her father’s arms, blood running out of her nose, as he tried to administer mouth-to-mouth resuscitation. "

Lawfirm looked at party’s web site and found documents which were supposed to be protected.

"Although the archived pages were supposed to be shielded from public view, the protections failed and lawyers at Harding Earley Follmer & Frailey in Valley Forge, Pa., did not hack their way in, Eastern District of Pennsylvania Judge Robert Kelly Jr. ruled last week on summary judgment.

"They did not ‘pick the lock’ and avoid or bypass the protective measure, because there was no lock to pick," Kelly wrote in Healthcare Advocates Inc. v. Harding Earley Follmer & Frailey, No. 05-3524. "Nor did the Harding firm steal passwords to get around a protective barrier. … The Harding firm could not ‘avoid’ or ‘bypass’ a digital wall that was not there."

The ruling, if it stands, wards off a potential judgment of $3 million in damages a patients’ advocacy company sought from the firm.

The company, Healthcare Advocates Inc. of Philadelphia, alleged that Harding Earley lawyers violated the Digital Millennium Copyright Act and the Computer Fraud and Abuse Act by fetching protected pages using the "Wayback Machine," a search tool provided by Internet Archive, a San Francisco-based Web page archivist.

Harding Earley represented a rival company, Health Advocate Inc. of Plymouth Meeting, Pa., which Healthcare Advocates accused of stealing trade secrets. Healthcare Advocates also sued Internet Archive for failing to properly protect Web pages that Healthcare Advocates no longer wanted to be available for public view.

This case from Long Island is tantalizing.  Attorney represents wife in a divorce proceeding, and is stalked by husband.  Attorney successfully obtains a $ 300,000 verdict for intentional infliction of emotional distress, on a counterclaim.  Verdict is reduced and reduced again, but…

Eves v Ray 2007 NY Slip Op 06098 Decided on July 17, 2007 Appellate Division, Second Department

"In particular, the record demonstrates that on several occasions, the plaintiff, in attempt to intimidate the defendant during his legal representation of the plaintiff’s former wife in a custody proceeding, threatened the defendant both physically and financially, and stalked him. Moreover, the plaintiff continued to engage in this conduct despite the fact that the defendant had obtained a temporary order of protection and was pursuing a harassment charge against the plaintiff ."

This has to be today’s big story. This will be all over the web, and will be reported in much greater detail.  But  the NYLJ reports:

"A federal judge has ruled unconstitutional most of the sweeping new restrictions on attorney advertising introduced earlier this year by the New York courts.

The restrictions, which went into effect Feb. 1, had barred lawyers from, among other practices, using nicknames that suggest an ability to obtain results or touting "characteristics clearly unrelated to legal competence."

Alexander & Catalano, the Syracuse personal injury firm that challenged the constitutionality of the advertising restrictions, had previously run ads calling its lawyers "heavy hitters" and showing them towering over downtown office buildings or sprinting at impossible speeds to help clients."

Here is a story from Texas.  Prominent engineer’s downfall:  negligence or conspiracy ?

"The former director of a city sewer program is suing several engineering firms and three Austin lobbyists, alleging that they conspired to get him fired.

Bill Moriarty previously led the Austin Clean Water Program, the city’s $200 million effort to fix old sewer lines by 2009 to avoid federal fines. He was fired in 2005 after a city investigation concluded that he should have disclosed that a woman he lives with and is dating, Diane Hyatt, got work through the program.

Moriarty and Hyatt are suing six engineering firms and lobbyists David Armbrust, Cis Myers and former Austin Mayor Bruce Todd, who represent some of the firms.

The firms were seeking retaliation, the lawsuit says, because Moriarty streamlined Clean Water projects and the firms feared that they would lose money or contracts. Moriarty is also suing Armbrust and his law firm, Armbrust & Brown LLP, for legal malpractice. Armbrust helped negotiate Moriarty’s contract when he was hired for the Clean Water Program and later worked to get him fired, the lawsuit says.

The illinois Legal Malpractice Blog writes about the statute of limitations:

"A recent Illinois Appellate decision (Warnock v. Karm Winand & Patterson) stemming from a failed real estate sale addresses the issue of when the two-year statute of limitations begins to run in a legal malpractice case – is it 1) when the underlying action is first filed and the client is put on notice that his attorney(s) may have been negligent or 2) when a decision is rendered in the underlying action resulting in a monetary loss for the client due to the lawyer’s negligence. In it’s decision the Appellate Court found that in the majority of legal malpractice cases the answer is the latter, saying "in Illinois, a ’cause of action for legal malpractice will rarely accrue prior to the entry of an adverse judgment, settlement, or dismissal of the underlying action in which the plaintiff has become entangled due to the purportedly negligent advice of his attorney.’" (citations omitted). The Court further stated, "[t]he existence of actual damage…is essential to a viable cause of action for legal malpractice."

Law.Comreports that :"As Mayer, Brown, Rowe & Maw readies for potential claims arising out of its representation of failed commodities brokerage Refco, the Chicago law firm’s work for another bankrupt company has already triggered a $17 million suit against it.

The bankruptcy trustee for defunct health care management company CMGT Inc. has sued its former lawyers at Mayer Brown for failing to challenge lawsuits brought against the company by its former financial adviser, Gerry Spehar. According to the trustee, the unopposed litigation crippled the company and handed Spehar a $17 million default judgment.

But Mayer Brown claims the trustee’s suit is part of a scheme by none other than Spehar, who it claims is financing the case in the hopes of turning a worthless default judgment based on meritless and speculative damages claims into a $17 million windfall. In court papers, the firm has denounced the suit as a "perversion of the civil and bankruptcy systems."

However, one man’s worthless default judgment based on meritless and speculative damges, is another’s diamond.