The NYLJ reports:

"Former Supreme Court Justice Lawrence I. Horowitz used his status as a judge to seek preferential police treatment for his girlfriend and to have authorities investigate the woman’s estranged husband, the state Commission on Judicial Conduct said yesterday.

The commission announced that Mr. Horowitz, who resigned on June 20, has signed a stipulation acknowledging that he could not defend himself against the disciplinary charges. He also agreed not to serve again as a judge or judicial hearing officer.

The commission contended that from the beginning of his tenure, Mr. Horowitz used Supreme Court stationery to write letters concerning personal or family business matters. The correspondence included letters to the schools his children attended to comment on school policies, to his house of worship to discuss his membership dues and to Verizon, contesting an unpaid bill of $14,707 for a phone number associated with his former law practice, according to the commission.

Mr. Horowitz also violated judicial canons beginning on Feb. 3, 2005, when his girlfriend, Michelle Nolan, was stopped for speeding in Yorktown, Westchester County, the commission charged. A police computer check indicated Ms. Nolan’s estranged husband, Christopher Angiello, had reported the vehicle stolen. Mr. Horowitz called the officer investigating Ms. Nolan’s case and identified himself as her friend and assuring him Ms. Nolan would respond to any traffic summonses, the commission charged. In the stipulation with the commission, Mr. Horowitz acknowledged his inability to defend himself against the charges in the complaint and that he has resigned from the court. While the commission has 120 days under Judiciary Law §47 to complete an investigation against judges if they resign, commission administrators and Mr. Horowitz agreed that all matters in his case should be closed.

The stipulation made reference to the commission’s notification to Mr. Horowitz that it was also investigating "additional allegations" against him unrelated to the 2006 complaint, but the nature of the other allegations was not revealed.

Several summonses were issued against Ms. Nolan, though the officer’s supervisor had recommended she be charged with a crime and that bail be set, the commission noted.

Mr. Horowitz then accompanied Ms. Nolan to the Yorktown police station to file a complaint against Mr. Angiello for having made a false report about the car. At that time, he identified himself as a judge and demanded that police investigate Mr. Angiello and his brother, Yorktown Police Officer Dominic Angiello, for allegedly working together to improperly report the vehicle as stolen.
In his verified answer, Mr. Horowitz noted that his misconduct came in his first 18 months as a "relatively new" judge. He also made reference to a series of personal setbacks dating from his 2003 campaign for Supreme Court, when his wife, Alexis Furer, began a bitterly contested divorce proceeding against him. "

Jackson Lewis LLP reports this Federal Case from the DC Circuit which holds that they are taxable.

"DC Circuit rules that damages for non-physical injury are subject to federal taxation
Jackson Lewis LLP

USA
July 13 2007

The U.S. Court of Appeals for the District of Columbia Circuit has resolved the constitutional question it first created concerning the taxability of damages for emotional distress or mental anguish and loss of reputation (non-physical personal injury). After reviewing the issue, the D.C. Circuit has held that such damages were taxable. Murphy v. IRS, No. 05-5139 (D.C. Cir. July 3, 2007). "

Plaintiff’s cause of action for negligent misrepresentation was dismissed as duplicitive in this 2nd Department case.  Iannucci v Kucker & Bruh, LLP ;2007 NY Slip Op 06026 ;Decided on July 10, 2007 ;Appellate Division, Second Department

"The Supreme Court should have granted those branches of the defendants’ motion which were, in effect, pursuant to CPLR 3211(a)(7) to dismiss the third and fourth causes of action for failure to state a cause of action. These causes of action, which alleged negligent misrepresentation and fraud, arise from the same facts as the legal malpractice cause of action alleged in the complaint, and do not allege distinct damages (see Town of N. Hempstead v Winston & Strawn, LLP, 28 AD3d 746, 749; Daniels v Lebit, 299 AD2d 310; Best v Law Firm of Queller & Fisher, 278 AD2d 441, 442). By contrast, the second and fifth causes of action seek a refund of alleged excess fees that were paid to the defendants. These causes of action invoke facts different from those alleged in the first cause of action, which seeks damages in a different amount for legal malpractice."

Steven Seagal is now suing Loeb & Loeb over the Julius Nasso incident.  Loeb & Loeb has already won a determination that any legal malpractice case has to be arbitrated;  this arbitration provision is found in its retainer agreement, and in the Nasso v. Loeb & Loeb case, got the AD to uphold the arbitration agreement in the face of a public policy argument.

Prediction:  this case too will go to arbitration.

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.