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.

This case, reported today is a dismissal of legal malpractice because the attorneys represented the company, and not the individual plaintiff shareholders.

"As a threshold matter, in order to establish a cause of action for legal malpractice, the plaintiff must demonstrate the existence of an attorney-client relationship (AG Capital Funding Partners, L.P. v. State Street Bank & Trust Co., 5 NY3d 582, 595 [2005]). A relationship of actual privity or one that closely resembles privity, is required (id.; Linden v. Moskowitz, 294 AD2d 114, 115 [1st Dept 2002], lv denied 99 NY2d 505 [2003]). The execution of a formal retainer agreement or the payment of a fee is not dispositive (Jane Street Co. v. Rosenberg & Estis, P.C., 192 AD2d 451, 451 [1st Dept], lv denied 82 NY2d 654 [1993]). Rather, courts typically consider the words and actions of the parties to ascertain the existence of such a relationship, and whether there was an explicit undertaking by the attorney to perform a specific task (Wei Cheng Chang v. Pi, 288 AD2d 378, 380 [2d Dept 2001], lv denied 99 NY2d 501 [2002]). Additionally, the plaintiff must allege that the attorney was aware that its services were being used for a specific purpose, that the plaintiff relied upon those services, and that the attorney engaged in some conduct evincing an understanding of the plaintiff’s reliance (Allianz Underwriters Ins. Co., 13 AD3d at 175). A plaintiff’s subjective belief alone as to the existence of such a relationship is not sufficient (Weadick v. Herlihy, 16 AD3d 223, 224 [1st Dept], lv denied 5 NY3d 707 [2005]).

The complaint fails to plead Facts establishing that an attorney-client relationship existed between Topor, individually, and the Counsel Defendants. In the complaint, Topor repeatedly alleges that the Counsel Defendants represented Flatiron and the single-purpose entities that Flatiron created, including 119th Street LLC, in order to acquire properties (see e.g. Complaint at ¶36). Otherwise, Topor does not allege any Facts, either in the form of words or actions, taken by Topor and the Counsel Defendants establishing that there was an explicit undertaking to perform a specific legal task on behalf of Topor personally (Wei Cheng Chang, 288 AD2d at 380), or that the Counsel Defendants knew that Topor was personally relying on their services (Allianz Underwriters Ins. Co., 13 AD3d at 175). "

"As a threshold matter, in order to establish a cause of action for legal malpractice, the plaintiff must demonstrate the existence of an attorney-client relationship (AG Capital Funding Partners, L.P. v. State Street Bank & Trust Co., 5 NY3d 582, 595 [2005]). A relationship of actual privity or one that closely resembles privity, is required (id.; Linden v. Moskowitz, 294 AD2d 114, 115 [1st Dept 2002], lv denied 99 NY2d 505 [2003]). The execution of a formal retainer agreement or the payment of a fee is not dispositive (Jane Street Co. v. Rosenberg & Estis, P.C., 192 AD2d 451, 451 [1st Dept], lv denied 82 NY2d 654 [1993]). Rather, courts typically consider the words and actions of the parties to ascertain the existence of such a relationship, and whether there was an explicit undertaking by the attorney to perform a specific task (Wei Cheng Chang v. Pi, 288 AD2d 378, 380 [2d Dept 2001], lv denied 99 NY2d 501 [2002]). Additionally, the plaintiff must allege that the attorney was aware that its services were being used for a specific purpose, that the plaintiff relied upon those services, and that the attorney engaged in some conduct evincing an understanding of the plaintiff’s reliance (Allianz Underwriters Ins. Co., 13 AD3d at 175). A plaintiff’s subjective belief alone as to the existence of such a relationship is not sufficient (Weadick v. Herlihy, 16 AD3d 223, 224 [1st Dept], lv denied 5 NY3d 707 [2005]).

The complaint fails to plead Facts establishing that an attorney-client relationship existed between Topor, individually, and the Counsel Defendants. In the complaint, Topor repeatedly alleges that the Counsel Defendants represented Flatiron and the single-purpose entities that Flatiron created, including 119th Street LLC, in order to acquire properties (see e.g. Complaint at ¶36). Otherwise, Topor does not allege any Facts, either in the form of words or actions, taken by Topor and the Counsel Defendants establishing that there was an explicit undertaking to perform a specific legal task on behalf of Topor personally (Wei Cheng Chang, 288 AD2d at 380), or that the Counsel Defendants knew that Topor was personally relying on their services (Allianz Underwriters Ins. Co., 13 AD3d at 175). "

The Court of Appeals has found in Rivera v Anilesh ,2007 NY Slip Op 05134 , Decided on June 12,  2007 , that a dentist’s habit [his regular procedure] of injecting anesthetic, is admissible to show lack of negligence.

"In this malpractice action by a patient against her dentist, we are asked whether the dentist’s routine procedure for administering an anesthetic injection is admissible as habit evidence supporting an inference that the same procedure was used when treating the patient. Based on the record before us, we conclude that the habit and routine practice testimony is [*2]admissible."

"In Halloran v Virginia Chems. (41 NY2d 386, 391 [1977]), we explained that "evidence of habit has, since the days of the common-law reports, generally been admissible to prove conformity on specified occasions" because "one who has demonstrated a consistent response under given circumstances is more likely to repeat that response when the circumstances arise again." The applicability of this doctrine is limited to cases where the proof demonstrates "a deliberate and repetitive practice" by a person "in complete control of the circumstances" (id. at 392) as opposed to "conduct however frequent yet likely to vary from time to time depending upon the surrounding circumstances" (id. at 389). If these conditions are satisfied, "a party should be able, by introducing evidence of such habit or regular usage, to allow the inference of its persistence . . . on a particular occasion" (id. at 392). "

The case goes on, and makes for good reading.  Will this apply to Legal Malpractice too?

Misconduct of a partner led to this verdict yesterday.  The jury found that partner Henry I. Rothman abandoned a three person partnership, staying with only one of the partners.

This case started as a legal fee matter in Civil Court!!   Parker Chapin then saw a counterclaim for legal malpractice. "The jury awarded $2 million in compensatory damages and $5 million in punitive damages. Alvin Stein, a partner at Troutman Sanders who represented Parker Chapin, said the "verdict is wrong on the law and facts" and will be contested on appeal if necessary. The suit was originally brought in Civil Court by Parker Chapin to collect unpaid legal fees in 1996, but one of the partners who believed he had been abandoned by Mr. Rothman, now a finance and corporate partner at Troutman Sanders, filed a counterclaim asserting breaches of ethics rules against the firm"

Mark Hamblett of the NYLJ reports:

"Failure to disclose a key document on insurance coverage for the Port Authority at the World Trade Center in the aftermath of the Sept. 11 terror attacks and other discovery abuses is going to cost Wiley Rein and Coughlin Duffy.

The two law firms and the company they represented, Zurich American Insurance Companies, have been whacked with $1.25 million in sanctions by Southern District Judge Alvin Hellerstein, who said document destruction by Zurich employees and misleading statements by their attorneys added years and millions of dollars to the cost of prosecuting suits on behalf of people who died or were injured or suffered property loss in the 2001 attacks.

The judge did not dictate how much each of the three sanctioned parties should pay of the $1.25 million, leaving the door open for any of those sanctioned to "discuss the subject of allocation."

But it was Wiley Rein partner Thomas Brunner, the lead counsel for all the primary and excess insurers in the case, who was singled out for criticism for telling Judge Hellerstein on Dec. 23, 2003, "We have plenty of evidence that, believe me, we can invoke on this issue of whether [the Port Authority] is an additional insured at all."

The judge said those representations were contradicted by the 62-page document and other evidence showing that Zurich employees knew the liability insurance coverage sought by Larry Silverstein’s World Trade Center Properties was meant to include the Port Authority. "