Attorneys move from firm to firm more often now than in the past.  The NYLJ and Law.Com’s top articles are all about firms reconstituting themselves, and movement of lawyers from hither to yon.

Here is a case from New Jersey about a successful legal malpractice case in which plaintiff recovers from one set of defendants, but has to take an assignment of insurance rights from the second set.  The insurance carrier started to defend under a reservation of rights, and then successfully withdrew.

"The governing legal principles are firmly established. An insurance company may respond to a claim against its insured by advising the insured that it is willing to defend under a reservation of rights or "non-waiver agreement." Merchants Indem. Corp. of N.Y. v. Eggleston, 37 N.J. 114, 126 (1962); Griggs v. Bertram, 88 N.J. 347, 357 (1982). Under such an agreement, the insurance company cannot be held ultimately responsible for payments otherwise required by the insurance policy. The agreement may be "inferred from the insured’s failure to reject the carrier’s offer to defend with a reservation of rights." Merchants, supra, 37 N.J. at 126. But "to spell out acquiescence by silence," the reservation of rights letter "must fairly inform the insured that the offer may be accepted or rejected." Id. at 127-28.

The first judge held that the letter in question failed the test set out in Merchants because it did not literally say you may "accept or reject" the offered defense. But the case does not stand for the proposition that its exact words have to be employed. Here, the letter "specifically disclaimed[ed] coverage for any . . . alleged act, error, or omission that occurred prior to the policy’s retroactive date" and for any member of RRMKK. The letter did not in any way reflect or even suggest a unilateral decision by Harleysville"

"An example of an improper unilateral declaration by an insurance company of its intention to defend while reserving the right to disclaim appears in Sneed v. Concord Insurance Co., 98 N.J. Super. 306, 314 (App. Div. 1967)(the company "’will continue to investigate this matter, but reserves any and all of its rights under the policy contract and may at any time, disclaim liability thereunder’"). By contrast, the language used by Harleysville comports with the reservation of rights letters sustained in Neilson v. American Mutual Liability Insurance Co. of Boston, 111 N. J. L. 345, 349 (E.& A. 1933)("’If this is not agreeable to you, we will return the summons and complaint for such action as you think advisable.’"). We perceive no difference between that statement and Harleysville’s statement that it was "prepared" to defend "if" the insureds were willing "to accept the reservation," particularly when the letter expressly declined coverage for the only period of time during which the insureds could have had responsibility for Kuhn’s actions and suggested that they might want "to retain personal counsel to protect their uninsured interests." In short, because Rubin and Kaplan had been properly notified of the reservation of rights and had not suffered any prejudice from the timing of Harleysville’s withdrawl, they had no enforceable claim to the benefits of the malpractice insurance policy.

Relying primarily on Merchants and Griggs, the Scottos and Rubin and Kaplan argue that even if the reservation of rights letter effectively preserved Harleysville’s rights, there is liability nevertheless because Harleysville did not disclaim for over three years and finally disclaimed while the malpractice case was still pending. Both of those cases are distinguishable because they involve untimely reservation of rights letters, which is not the case here. While those cases would be pertinent by inference if Rubin and Kaplan had suffered prejudice because of the timing of Harleysville’s withdrawal, there was no prejudice here since the "settlement" required nothing of Rubin and Kaplan other than an assignment of rights. "

The Appellate Division, Second Department recognized that there had been potential legal malpractice in the way this law firm handled equitable distribution in this case, and its failure to protect its client.  Wife was client, husband had real property, and due to a failure to file a lis pendens, the real property became part of his bankruptcy estate, rather than the clients. 

"The Firm’s contention that it did not depart from the ordinary standard of care applicable to an attorney in a matrimonial action involves factual issues not properly resolved in the context of a motion to dismiss or for leave to amend (see Ehlinger v Ruberti, Girvin & Ferlazzo, 304 AD2d 925). Moreoever, the Firm did not demonstrate that notices of pendency could not have been filed pursuant to CPLR 6501 in the underlying divorce action, since Hirsch not only asserted a claim for equitable distribution pursuant to Domestic Relations Law § 234, but also asserted fraudulent conveyance and constructive trust causes of action which demanded judgment that would affect title to the properties, and successfully sought issuance of a temporary restraining order and the appointment of a receiver to manage all of the properties at issue (see Ehlinger v Ruberti, Girvin & Ferlazzo, supra; Resnick v Doukas, 261 AD2d 375; Elghanayan v Elghanayan, 102 AD2d 803; Leibowits v Leibowits, 93 AD2d 535, 556; cf. Sehgal v Sehgal, 220 AD2d 201; Fakiris v Fakiris, 177 AD2d 540). "

At this stage of the proceedings, Hirsch need not establish actual damages, but is only required to set forth allegations from which damages attributable to the defendant’s alleged malpractice might be reasonably inferred (see Kempf v Magida, 37 AD3d 763; InKine Pharm. Co. v Coleman, 305 AD2d 151). The proposed amended pleading met this standard by alleging that the filing of a notice of pendency would have provided constructive notice of Hirsch’s claims in the divorce action and thereby prevented the eight properties from becoming part of the estates in bankruptcy of the Trust Entities and/or of Hirsch’s former husband (see CPLR 6501; 11 USC 544[a]; Goldstein v Gold, 106 AD2d 100, 102, affd 66 NY2d 624; In re Borison, 226 BR 779, 787-788; In re Eadie Properties, Inc., 31 BR 812, 814-815). As the Firm did not demonstrate that these allegations are palpably insufficient as a matter of fact or law, leave to amend the counterclaim [*3]should have been granted and the motion to dismiss denied.

.KAPLAN V. PUCKETT (2006-SC-18-DG)

Here is a legal malpractice case from Kentucky, with briefs.

"Legal malpractice. Puckett was found guilty of arson-related murder. Puckett was acquitted at new trial granted because prosecution witness had withheld exculpatory evidence at first trial. Puckett subsequently prevailed in legal malpractice action against original defense counsel. The issue is whether the malpractice verdict may stand in light of the withheld evidence."
Discretionary review granted 8/17/2006
Jefferson Circuit Court, Judge F. Kenneth Conliffe
For Movant: George R. Carter
For Respondent: Bill V. Seiller

Appellant’s Brief
Appellee’s Brief
Appellant’s Reply Brief
COA OPINION: 2004-CA-001750 (PDF)

This attorney prosecuted class actions for big settlements.  Now his millions in fees is in jepordy, based on the allocation of expenses between the groups of clients. The Story.

"Three former clients of trial lawyer John O’Quinn could be receiving millions of dollars back after an arbitration panel ruled the prominent Houston attorney improperly deducted expenses from settlements he won for them.

The three-person panel could decide this month if O’Quinn would have to give back any money. O’Quinn could be forced to return the $18.9 million in expenses plus all of his fees, estimated to be $580 million.

A March panel decision obtained by the Houston Chronicle showed a majority thought the deduction of a total of $18.9 million from the plaintiffs’ settlements was improper. The decision also said the 1.5 percent of general expenses collected by O’Quinn from the women were not authorized by his client contracts. "

Baker Donnelson reports that the US Supreme Court has issued a ruling in Bell Atlantic Corp. v. Twombly an anti-trust case which may revolutionize pleading in all civil cases. 

"In an antitrust case decided on May 21, 2007, the United States Supreme Court abandoned a fifty-year-old liberal pleading rule in favor of a significantly tougher standard applicable to all civil cases that may make it more difficult for plaintiffs to sue and easier for defendants to end lawsuits early, avoiding expensive litigation. The Court’s rejection of the old standard is unequivocal: the court’s old formulation, quoted for half a century in numerous opinions of the Supreme Court and the lower courts, "is best forgotten as an incomplete, negative gloss on an accepted pleading standard."

 

THEIR CONCLUSION?

"For fifty years, courts have evaluated all civil complaints under the standard set forth in Conley v. Gibson, 355 U.S. 42 (1957), which allowed cases to proceed through the process of pre-trial discovery unless, based on the claims alleged in the complaint, the plaintiff could prove "no set of facts in support of his claim which would entitle him to relief." This meant that under Conley, a case brought under the labor and employment laws, a plaintiff needed only to make allegations that put defendants on notice of what the plaintiff’s claims were without asserting all of the facts that supported the plaintiff’s conclusion that the law had been violated. As long as some set of facts might exist to support the plaintiff’s conclusions, the case could go forward. But in Twombly, the Supreme Court rejected this standard, noting that it has "earned its retirement."

The Supreme Court’s new standard asks not whether it is conceivable that some set of facts could be developed to support the allegations in the complaint, but rather whether the plaintiff has stated enough facts in the complaint to allow a court to conclude that it is plausible that the plaintiff is entitled to relief. Thus, defendants can avoid the costs and burden of responding to a complaint and to a plaintiff’s request for discovery by convincing the judge that the plaintiff’s claims are implausible even if they might be remotely possible. Conley was not an antitrust case, and the Court’s rejection of Conley was not limited to antitrust cases. It is likely, therefore, that this new pleading standard will be adopted in civil cases generally. "

Here is a blog blurb from an Indiana Case:

"In Norman R. Carlson, Jr., et al v. Sweeney, Dabagia, Donoghue, Thorne, James & Pagos, et al, a 28-page opinion dealing with questions of alleged attorney malpractice in will drafting, Judge Robb writes:

Norman R. Carlson, Jr., individually, and as executor of the estates of Norman R. Carlson and Hilda D. Carlson, and as Trustee of the Trust established under the last wills and testaments of Norman Sr. and Hilda, Margaret Ann Carlson, Beth Carlson Montigue, and David R. Carlson, (when referred to collectively, the “Carlsons”), filed a complaint against the law firm of Sweeney, Dabagia, Donoghue, Thorne, Janes and Pagos, and lawyer John H. Sweeney (the “Lawyers”), alleging legal malpractice that resulted in adverse tax consequences. The Lawyers filed a motion for summary judgment, raising two issues. The trial court denied the Lawyers’ motion as to one issue, but granted it as to the other. The Carlsons now appeal, raising a single issue, which we restate as whether the trial court properly granted summary judgment based on its determination that reformations to the Wills drafted by the Lawyers effectively eliminated any malpractice that occurred relating to the drafting of the original Wills. On cross-appeal, the Lawyers raise a single issue, which we restate as whether the trial court properly denied its motion for summary judgment on the grounds that the original Wills would result in adverse tax consequences. The Lawyers also raise the following issues: 1) whether the “substantial adverse interest exception” protects the Carlsons from adverse tax consequences; 2) whether the Carlsons have brought this suit too early, as the IRS has not yet assigned a tax penalty; and 3) whether the trial court improperly considered the opinion of an attorney hired by the Carlsons. We conclude the adverse interest exception does not protect the Carlsons, the Carlsons are not precluded from bringing their suit at this time, and that the Lawyers waived their argument relating to the opinion of the expert witness by not raising it before the trial court. We further conclude that the trial court properly found that the original Wills would result in adverse tax consequences, and affirm the trial court’s denial of the Lawyers’ motion for summary judgment on that issue. However, we conclude that the reformations did not effectively avoid potential adverse tax consequences, reverse the trial court’s grant of summary judgment on that issue, and remand for further proceedings. * * *

Conclusion We conclude that the trial court properly determined that the original Wills did not establish an ascertainable standard regarding a Trustee’s ability to invade the trust corpus; that the “adverse interest” clause does not protect the Trust from tax liability; and that the Carlsons did not bring this suit prematurely. Therefore, we affirm the trial court’s denial of the summary judgment motion on these grounds. We also conclude that the reformations did not comport with Indiana law, and that the trial court therefore improperly granted summary judgment. We therefore reverse the trial courts grant of summary judgment and remand for further proceedings."

AVVO a new lawyer search web site is up and  running. "a online legal services startup led by Expedia veteran Mark Britton, is unveiling its website after more than a year of development.

Avvo.com allows consumers to search for lawyers by name, practice area, or location and get ratings and profiles for them. The website is free to consumers and supported by online advertising.

Each lawyer’s profile includes license status, disciplinary sanctions, practice areas, education, a list of awards and publications, as well as client ratings and peer endorsements. The site gives lawyers an overall rating based on their experience and record.

Avvo collects its information from public sources including courts, state bar associations and law firm websites. Client ratings and peer endorsements are submitted by visitors to the site.

Avvo is the brainchild of Britton, who previously served as general counsel at Bellevue online travel site Expedia Inc. (NASDAQ: EXPE). "