The facts of thiscase are sad. DR. GARY SAFIER, Plaintiff v.  WALDER, SONDAK & BROGAN, P.C.,
JUSTIN WALDER, ESQ. and JOHN BROGAN, ESQ., and AMBROSIO, KYREAKAKIS & DI LORENZO, 

Doctor knowingly prescribes narcotics to a wealthy addict for years, and nets a hue of money for doing so.  Another doctor turns him in, and he ends up working his way into a diversion program.  His attorneys save the doctor’s license, and then sue for their unpaid fees.

Doctor resists, sues for legal malpractice and for a number of interesting reasons, loses. One reason for losing is his repeated habit of not paying lawyers and experts.  When the fee arbitration goes sour, he sues his next set of attorneys.  Not only does he lose there, but he is assessed $ 36,000 in sanctions, which is eventually washed away.

"As a final matter in this regard, we reject Dr. Safier’s position that, as "malpractice" defendants, the Ambrosio firm bore the burden of establishing the reasonable nature of the Walder defendants’ bill. This position would be correct if the dispute were directly with the Walder defendants. Cohen, supra, 146 N.J. at 156. However, this was not such a dispute, but rather, a malpractice action against attorneys whose services did not encompass the work that was the subject of the disputed bill. Dr. Safier has offered no precedent that would suggest the customary burdens of proof applicable to a legal malpractice action would be reversed in this double-tiered malpractice suit, simply because excessive billing was claimed in the underlying matter. "

Quinn Emanuel reports this case:  In a federal legal malpractice and section 1983 case, plaintiff’s attorney asked deposition questions of defendant which were intended to harass.  Defendant’s attorney told his client not to answer, and ran afoul of the 7th circuit.  They said he should have walked out and moved for a protective order.

"During a deposition, plaintiff ’s counsel asked a witness whether he had ever been “ordered to obtain psychiatric counseling or anger-management therapy.” The lawyer also asked whether the witness had ever engaged in homosexual conduct or been in any type of “homosexual clique with any other defendants” in the action. Id. at 468. The attorney defending the deposition instructed the witness not to answer on the basis that the questions were designed to harass. Id. Plaintiff then moved for sanctions based on the refusal to answer questions.

The district court concluded that “everyone had behaved badly and that, because [plaintiff ’s counsel] was the greater offender, no sanctions would be appropriate.” The district judge added that under the circumstances it was “ludicrous” for plaintiff to argue that “lawyers may not instruct witnesses not to answer.” Id. at 469.

The Seventh Circuit agreed that the questions were, undoubtedly, designed to harass, that plaintiff ’s counsel made no effort to establish how the lines of questioning could lead to admissible evidence, that the witness “would have been entitled to stalk out of the room,” and that his lawyer “could have called off the deposition and applied for a protective order (plus sanctions).” Id. at 468. The court, nonetheless, censured the deponent’s attorney for conduct unbecoming a member of the bar. As the Seventh Circuit explained, when there is harassment, “[c]ounsel for the witness may halt the deposition and apply for a protective order” pursuant to Federal Rule of Civil Procedure 30(d)(4). But he “must not instruct the witness to remain silent.” Id. at 467-68. Instead, “[a] person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation directed by the court, or to present a motion under Rule 30(d)(4).” Id. The Seventh Circuit made clear that this bright line rule applies no matter how outrageous or harassing the line of questioning. "

We have often thought that plaintiff”s litigation is a high level gamble.  Meeting the client, evaluating the case, gathering the materials, bringing the action and engaging the opposition are the similar to sitting down at a poker table.

Here is a case to the nth power.  Casino patron walks in, slips on a nasty substance, possibly vomit, tries to get up and slips again, sues, loses, and loses again. 

"The plaintiff was walking through the lobby of the Trump Taj Mahal Casino Resort in Atlantic City when she slipped on a substance that she identified as vomit. Plaintiff did not see any substance on the floor prior to her fall. She further alleged that after she fell, a woman dressed in a blazer and holding a walkie-talkie, whom she believed to be a security guard, came over and told her to get up. When she tried to get up unassisted, she allegedly fell again in the vomit. Plaintiff and other family members left the casino, and plaintiff later received treatment at an emergency room facility.

Plaintiff subsequently retained the defendant law firm to represent her in an action against the casino. The law firm wrote a few letters demanding a settlement and requesting insurance information. No offer of settlement was made, and the statute of limitations expired before a lawsuit was filed. The plaintiff then commenced an action against the defendant law firm for legal malpractice for failing to file her lawsuit and failing to investigate the claim and protect her interests "

Big players in smaller markets can be a target, or on the other hand may be arrogant and settle cases rather than try them, simply because of the inventory of new cases coming in.  Whether this was the case with Justine Thompson is unknown.

What is known is that she had a case, settled the case, and after everyone involved was paid, she was left with $ 6.60 in settlement.  "When Justine Thompson was forced to retire from her state job after 28 years because of a nasty fall she took in an icy parking lot, she figured she had protected herself by hiring a personal injury attorney.

That was before the accounting of the $35,000 settlement arrived in the mail from Cellino & Barnes. The lawyer’s share was $10,000.

The law firm repaid itself another $3,600 in expenses.

New York took $21,000 to repay workers’ compensation. Justine Thompson’s share? A check for $6.60. ""Two attorneys, one from Rochester, another from Syracuse filed a malpractice suit on her behalf against Cellino & Barnes, its successor, The Barnes Firm, and Michael J. Cooper, the Barnes Firm lawyer who represented Thompson. “This lady is the poster girl for what’s wrong with this profession,” said S. Robert Williams, the Syracuse lawyer who filed the suit with Patrick J. Burke of Rochester.

It’s not the kind of settlement that television ads for The Barnes Firm boast about, claiming $150 million for auto injury clients alone over the last few years. "

Calendar dismissals are a vivid demonstration of how a case goew wrong.  There are pre-note and post-note of issue instances.  Here is a well written article which discusses pre-note dismissals by William Greenberg

"Now two recent cases from the Appellate Division, Second Department may have lent some clarity. These cases – Travis v. Cuff, 28 AD3d 749, 814 NYS2d 610 (2nd Dept.) and Galati v. C. Raimondo & Sons Constr. Co. 35 AD3d 805, 828 NYS2d 136 2nd Dept 2006) – each squarely determine that the trial court can never use CPLR §3404 to dismiss a case as "abandoned" if it is in "pre-note of issue status."

But to understand Travis and Galati in context it is appropriate to quickly review the calendar control devices available to the Supreme Court. They are CPLR provisions §3126, §3216, §3404 and Uniform Rule 202.27 (22 NYCRR 202.27)."

 
"For the practitioner, the lesson is clear. Where a case is in "pre-note of issue" status – either due to vacature of a previously filed note of issue or because the note of issue has never been filed – the court cannot dismiss pursuant to §3404. Only Rule 202.27, where a party has failed to appear or not been ready to proceed, is a ground for dismissal unless, running afoul of §3216, a party has failed to file a note of issue pursuant to written court direction – directing the filing in not less than 90 days – or ignored a "90 day notice" served by an adversary. See Dergousova v. Long, 37 AD3d 645, 830 N.Y.S.2d 330 (2nd Dept. 2007). "

This blog blurb by Ken Shigley discusses the three-way conflict between defendant, its attorney and the carrier, in the context of choices and legal malpractice.

"Where the insurance company has refused to take advantage of opportunities to settle a claim within policy limits, the plaintiff wins a judgment for some multiple of the policy limits, and the insured is on the hook for the excess, the insurance defense lawyer should exercise great caution. If the plaintiff’s attorney asks for contact information to communicate directly with the insured defendant’s corporate or coverage counsel regarding the insured’s interests vis-a-vis the insurance company, the insurance defense lawyer should either facilitate that communication or report a potential malpractice claim to his own legal malpractice insurance company"

Daniel Wise at the NYLJ reports that two judges abruptly left the bench yesterday:

"Justice Resigns Amid Reported Probe

Supreme Court Justice Lawrence I. Horowitz (See Profile) abruptly resigned from the bench yesterday, according Ninth Judicial District Administrative Judge Francis A. Nicolai (See Profile). Justice Horowitz, 56, who has reportedly been under investigation for intervening in a friend’s traffic ticket, made his resignation effective as of today. His lawyer, Deborah Scalise, a specialist in professional discipline matters at Jones Garneau in White Plains, said the judge resigned for "personal reasons" and declined to elaborate. Justice Horowitz was appointed to an interim vacancy on the Westchester County Court in 2003, and elected to the Supreme Court in the Ninth District, which covers the five suburban counties north of New York City, later that year. For the past two years he was been sitting in Orange County. – Daniel Wise "

"Brooklyn Justice Howard A. Ruditzky (See Profile) left the bench on medical leave on June 8, Office of Court Administration spokesman David Bookstaver confirmed yesterday. Justice Ruditzky, 62, left on leave at his request, said Mr. Bookstaver, who declined to provide further details. The judge had been widely reported to have received immunity when he testified before a Brooklyn grand jury examining whether Democratic nominations for Supreme Court judgeships were for sale. According to several published reports, Justice Ruditzky confirmed for the grand jury that a supporter had paid more than $40,000 in cash and postage stamps to help him get a nomination in 2001. The Brooklyn District Attorney’s Office has not brought any criminal charges. Justice Ruditzky’s lawyer, Sheldon Eisenberger, did not respond to a request for comment. Justice Ruditzky, who was elected to the Civil Court in 1990, won the 2001 election for Supreme Court. – Daniel Wise "

A Staten Island judge rendered an interesting decision concerning loans to litigants in structured settlement cases, and perhaps during litigation.  Plaintiff  has a structured settlement coming to her, and needed court approval to convert it into legal fees for a custody dispute case.  Judge said no.

Case is interesting for two reasons:  first, how free are plaintiffs to determine their own economic destiny?  second, the court found the lender’s interest rate unreasonable.

Read the decision for details.

Yesterday we published a story about a legal malpractice and mediation which has been widely reported. Plaintiff claimed that the attorney negligently lowered a settlement demand, which damaged it.  Discovery of the mediation discussions was not permitted.  Today we have a comment from one of the attorneys:

"A comment from counsel for Wimsatt:

       Wimsatt never reduced the settlement demand. The contemporaneous emails confirm that. Plaintiff wanted to depose others at the mediation to ask what was said about that, and the defense sought a protective order to prevent mediation related discovery, since mediation confidentiality protects mediation related communications. The Superior Court Judge (our trial level court, but this is before trial) denied a protective order. The court of appeal held that the mediation related discovery could not take place, meaning that there could be no discovery about what the mediation briefs said or what the emails about those briefs said or what anybody said or did at the mediation, but that if there was just a general discussion well before the mediation about the case, discovery about that was not protected by the mediation privilege. Nobody moved to dismiss the case. However, the court of appeal did say that the effect of this ruling is that the plaintiff relinquished his rights to pursue his legal malpractice case. So justice will be done. The plaintiff had two attorneys at the mediation and knowingly and intelligently settled the case and collected his money, and then a few weeks later claimed he should have held out for more, and blamed his lawyer." by: George Stephan

Here from the Illinois Appellate Blog is a Insurance carrier versus their trial level attorney case.  Carrier lost a declaratory judgment coverage case, and now claims that the attorney failed to appeal. In the decision, based upon an automobile accident coverage issue in which the insurer claimed $ 25,000 of coverage, and ultimately paid $ 3 million in damages.  Read it for the Illinois Appellate niceties, and for the discussion of the attorney’s obligations.