May a criminal defendant speak with his attorney during cross-examination and  overnight?  The rule, as reported by is reported by Wilmer Cutler Pickering Hale and Dorr LLP .

:The Second Circuit recently clarified the law relating to communications between a defendant and his attorney during the defendant’s ongoing trial testimony. In U.S. v. Triumph Capital Group, Inc., the defendant-appellant alleged that the district court had violated his Sixth Amendment right to counsel when it ordered that his defense counsel not speak to him about his trial testimony during an overnight recess in the midst of the prosecution’s cross-examination.

No. 05-2630-cr, 2007 U.S. App. LEXIS 12221, at 2-3 (2d Cir. May 25, 2007). The district court rescinded its order after three hours, and, the following morning, recessed before the day’s testimony to provide the defendant and his counsel with sufficient time to confer prior to continuing the proceedings. Id. at 5-6. The district court also ordered that defendant and his counsel could not discuss defendant’s testimony during daytime breaks in the cross-examination, including an hour-long lunch break. Id. at 6. "

We have never heard anything like this.  This attorney goes to trial, and has an indian MD linked up, in real time, and listening to the proceedings.

"U.S. lawyer Dorothy Clay Sims has started using medical experts in India for help in legal cases:

Sims has reduced [medical expert costs] by hiring medical experts in India for a fraction of the price, and she makes the service available to other American lawyers through an Internet-based business called MD in a Box. The U.S. lawyers pay $90 an hour for the medical consulting. The process works through a real-time link to an Indian doctor by computer. Sims describes a typical case in which a U.S. orthopedic surgeon disputes her client’s claims in an American courtroom.

"I have my computer with me, and my doctor in India is listening to the orthopedic surgeon the whole time, through a microphone plugged into my laptop," said Dorothy Clay Sims. "He is then sending me instant messages saying, "that is not true. It is actually such and such or so and so." And I look down at my screen and I will just say exactly what the doctor said from India."

Missing a court date is bad.  Worse is having your computer e-mail system make you miss the date, and having the judge hold a hearing at which you have to produce your IT guy, all to explain how it happened.

Here is a Washington Post article telling how it all went bad.

"The trouble at Franklin D. Azar & Associates PC began with pornographic spam.
Last May the Aurora, Colorado, law firm was being bombarded with offensive messages, and enough of it was seeping through the company’s spam filters that employees complained to management, and IT administrator Kevin Rea was told to do something. 

What happened next, as detailed in federal court filings, shows how the fight against spammers can backfire. Spammers have been using increasingly sophisticated techniques to evade filters, so that over the past few years and despite predictions to the contrary, unsolicited e-mail continues to plague businesses worldwide.

On the morning of May 21, Rea dialed up the spam settings on the Barracuda Spam Firewall 200 Azar & Associates was using to block unwanted mail. The changes made it harder for spam to land on the desktops of company employees but they also had one unforeseen consequence: the Barracuda Networks Inc. appliance began blocking e-mail from the United States District Court for the District of Colorado, including a notice advising company lawyers of a May 30 hearing in a civil lawsuit.

Azar & Associates lawyers blew their court date and this week the judge overseeing the matter ordered the company to pay attorney fees and expenses incurred by the lawyers who showed up representing the other side of the case. Rea did not return a call seeking comment on the matter. "

About a year ago we wrote on a case in which a US Supreme Court brief and case were dismissed on technical grounds.  Its pretty bad when a mistake is advertised by the US Supreme Court on such a big stage.

Here, a loss at the US Supreme Court has led to a legal malpractice case.  "A civil case reaching the U.S. Supreme Court is generally presumed to have benefited from skillful advocacy, but in a lawsuit filed last year in Queens Supreme Court, Ideal said its former lawyers at McGuireWoods botched the case by pursuing a "unique and novel" but ultimately "inappropriate" civil RICO claim. The company further charges a scheme to bill exorbitant legal fees. In its malpractice suit, Ideal claimed that Beil ignored potential state law claims to focus on the more "intellectually novel" civil RICO claim. Paul Brancato, general manager of Ideal, which his family owns, said that focus was in keeping with Beil’s general approach to the case. "

Plaintiff in this case has been through the wringer, hiring an attorney in a car case and having that attorney refer out the case,  2d attorney lets the case go past statute, and 1st attorney suggests suing 2d attorney for legal malpractice.  However, when client sues, Attorney 2 impleads Attorney 1.  Then it gets interesting. 

"After the legal malpractice suit was filed, Mr. Gnall’s name was added as a defendant and eventually a settlement was reached with $567,831.10 going to Ms. Buntz. Mr. Gnall, meanwhile, received a $133,332 referral fee from the firm.

The settlement check, however, was sent to Mr. Gnall, along with paperwork Ms. Buntz had to sign, according to John McGovern, the attorney now representing Ms. Buntz. Instead of handing over the settlement check to Ms. Buntz, Mr. Gnall told her to see Mr. Peperno for investment advice, the suit alleges.

“She’s not a lawyer, and she didn’t understand he had been added to the (legal malpractice) suit,” Mr. McGovern said. “He was still giving her legal advice, when he should have stepped aside.”

"About $300,000 of her settlement money was invested through Mr. Peperno’s cousin, Frank Peperno, who was a licensed stockbroker, according to both federal court paperwork and the lawsuit filed by Ms. Buntz. The rest, both the federal indictment and Ms. Buntz’ suit claims, was used by James Peperno.

Mr. Gnall’s federal indictment contains accusations that he received $275,000 from Mr. Peperno in July 2005, at least some of which was Ms. Buntz’ money. Mr. Gnall allegedly used the money to buy the building where his law practice was located. "

Hinshaw reports an Iowa case which holds that the client owns virtually the entire file when in dispute with the attorney.  In New York, the case of  Sage Realty Corp. v. Proskauer Rose, 91 NY2d 30 (1997) governs.  In NY the client owns the file, and the attorney must reasonably provide the file, including work product.  For the Iowa case, read the Hinshaw alert.

Plaintiff’s decedent was incapacitated prior to death and a guardian was appointed.  The estate argued with the guardian over fees, and hired attorneys.  Settlement was reached, but the estate now argued with the attorneys over fees, and whether the settlement was appropriated. 

The attorneys withdrew and sued for fees.  For the balance of the procedural thunderstorm read the case.  One interesting element in the NJ case is the continuing failure by litigants to recognize the necessity of an affidavit of merits in a legal malpractice case.

"We assume the motion judge was attempting to provide defendants, appearing pro se, with clear guidance as to their discovery obligations and believed his March 31, 2006, order accomplished that goal. However, as we noted in Colonial Specialty Foods, Inc. v. County of Cape May, 317 N.J. Super. 207, 210 (App. Div. 1999), a subsequent dismissal with prejudice pursuant to R. 4:23-5(a)(2) can only be predicated upon a proper dismissal without prejudice under R. 4:23-5(a)(1).

More importantly in terms of what transpired, the March 31, 2006, order clearly allowed defendants the reasonable belief that if they complied with the order’s conditions, their pleadings would be restored, and, of equal importance, SSSG could not move to convert the dismissal to one "with prejudice" until ninety days elapsed.

Unfortunately, within thirty-eight days, the case was listed for trial. When defendants failed to appear, default was entered and two-days later, after a proof hearing, judgment was entered.

The entry of default and judgment were both improper under our Court Rules. First, pursuant to R. 4:43-1, default may be entered against a party who has "failed to appear," or whose "answer has been stricken with prejudice." Since defendants’ pleading was specifically stricken and dismissed without prejudice by the terms of the March 31, 2006, order, default was not appropriate. See also Kolczycki v. City of East Orange, 317 N.J. Super. 505, 520 (App. Div. 1999) (holding that proof hearing should not have occurred while suppression of defendant’s pleading was "without prejudice"). We assume that defendants’ confusion was well-founded given the conflict between the March 31, 2006, order, that implied an available ninety-day period for defendants to restore their pleadings, and SSSG’s April 19, 2006, letter that conveyed the court’s requirement that defendants appear, not for trial, but for a proof-hearing, which, for the reasons already discussed, was improper."

The Wall Street Journal reports this:

"What do you call a surgeon who wears a suit? A defendant. It’s an old joke, but at any given moment in the U.S., approximately 60,000 medical malpractice suits are being tried, many involving multiple physician-defendants. That’s roughly 10% of the physician population. And once a physician experiences the legal system, it can scar him permanently"

This is manifestly not true for lawyers.  By our estimation there are 100,000 lawyers in New York State.  There are certainly not 10,000 legal malpractice lawsuits going on at any time, and perhaps not even sequentially.

 

 

Motion for summary judgment made by defendant 125 days after note of issue. Plaintiff did not object, and may have consented.  AD held that only court may grant extensions, stipulations are void.  Motion dismissed.Coty v County of Clinton ;2007 NY Slip Op 05803 ; Decided on July 5, 2007
Appellate Division, Third Department

New rules for service of trial subpoenas are now coming into effect.

 

Section 1. The civil practice law and rules is amended by adding a new section 2303-a to read as follows:  § 2303-a. Service of a trial subpoena. Where the attendance at trial of a party or person within the party’s control can be compelled by a  trial subpoena, that subpoena may be served by delivery in accordance  with subdivision (b) of rule 2103 to the party’s attorney of record.  § 2. This act shall take effect on the first of January next succeeding the date on which it shall have become a law.