Often, a losing criminal defense attorney will. because they are usually really sympathetic guys, go to bat for a client by allowing the client to ‘give them up."  This usually comes up at an ineffective counsel application by the defendant.  Here is a prime example:

"A defense attorney tried a different argument for why his convicted client should be given a new murder trial: the attorney was too sleepy.

Charles R. Curbo wrote in a motion for a new trial that he could not properly represent the defendant, Tony Wolfe, because he was tired during the six-day trial in January.

"The court constantly rushed defense counsel, who the court knew had little sleep on account of the hours that the court was keeping for no good reason," Curbo wrote.

But Assistant District Attorney General David Zak, who prosecuted the case, said he saw no lack of enthusiasm from the defense.

"I saw no change in legal ability from Monday to Saturday," Zak said. "The defense attorney showed anger, passion and zeal in representing his client. There was never a moment when he was running out of gas."

Wolfe was convicted of first-degree murder for shooting 27-year-old Leondus Hawkins in September 2004 at a service station parking lot. He was sentenced to life in prison.

But both sides said the trial held long and late hours due to the defendant’s medical condition and because the judge wanted to send the sequestered jury home as quickly as possible.

Wolfe required dialysis treatments every other morning and kept the trial from starting until early afternoon for some days. The proceedings went on until 10 or 11 p.m. on some days.

"My client is already worn out from dialysis and they make him stay up there until 11 at night and he can’t remember his name hardly," Curbo said.

Attorney 1 started a trip and fall case against City and Contractor A.  After two years he was substituted out, and Attorney 2 started a new action against Contractor B.  The two actions were consolidated and eventually Contractor A won the case.  Contractor B paid $ 100,000 and the City paid $ 50,000.

Is Attorney 1 entitled to fees?  Is Attorney 2 entitled to Fees? 

"The motion, by order to show cause, of plaintiffs’ attorney, Theodore Oshman, Esq., of Oshman & Mirisola, LLP (hereinafter "movants") [Attorney 2] for an order restoring this matter to the active calendar, allowing plaintiffs’ counsel to deposit all proceeds in its escrow account to allow for the distribution of funds to the plaintiffs and setting this matter down for a hearing on the issue of attorney’s fees, is granted.

The cross-motion by plaintiffs’ former attorney, Barry S. Gedan, Esq., {Attorney 1]  for an order disqualifying plaintiffs’ current attorneys from receiving any attorneys’ fee in this action upon grounds of misconduct by them, requiring the plaintiffs’ current attorneys to refund to the plaintiffs their entire claimed contingent attorneys’ fee plus disbursements, declaring that the entire portion of the settlement proceeds, in the amount of $50,000, be paid by defendant, The City of New York (hereinafter "City"), Barry S. Gedan, Esq., or in the alternative, requiring that the City deposit the $50,000 settlement in this action in an interest bearing account at Mr. Gedan’s bank, requiring the movant to provide a detailed list of the legal services it provided on behalf of the plaintiffs and requiring that the movant provide Mr. Gedan with a copy of the file in this case, is denied in its entirety.
Mr. Gedan is entitled to recover in quantum meruit, " . . . the fair and reasonable value of the services rendered . . . " Lai Ling Cheng v. Modansky Leasing Co., Inc., 73 N.Y.2d 454 (1989); Judiciary Law §475. However, Mr. Gedan is entitled to recover for services rendered to the plaintiffs in the initial action involving the City only. In Cataldo v. Budget Rent A Car Corp., 226 A.D.2d 574 (2nd Dept. 1996), the court stated, " . . . before an attorney can be granted a lien pursuant to Judiciary Law §475 he or she must have appeared for the client by ‘participating in a legal proceeding on the client’s behalf or by having his [or her] name affixed to the pleadings, motions, records, briefs, or other papers submitted in the matter’" (citations omitted). Mr. Gedan did not represent the plaintiffs in the action against Columbus and he has failed to demonstrate that any of the work he performed resulted in the lawsuit against Columbus. He has not demonstrated that he is entitled to any fees from the settlement in the action involving Columbus as he did not commence the action against Columbus and had no involvement in that action whatsoever.

Accordingly, Mr. Gedan is only entitled to recover for services rendered in the initial action involving the City. Movants are permitted to deposit the proceeds of the settlement involving the City in its escrow account pending a determination of the fees Mr. Gedan is entitled to receive. Moreover, movant is permitted to distribute the plaintiffs’ share of the funds. Plaintiff, Melia Rothfeder is now more than eighty-four (84) years of age and is entitled to her share of the funds without having to wait for a determination in the fee dispute involving her present and former attorneys. "

Attorney Harry H. Kutner, Jr. had fees overdue and he was waiting for the client to pay.  Sound familiar?  Today’s NYLJ , written by Daniel Wise reports:

"The retainer agreement, drafted by Mr. Kutner, gave Mr. Antonacci 15 days from the time a bill was sent out to make payment without being assessed interest.

In the event payment was not made within 15 days, the agreement explained that a 16 percent interest rate would be assessed to "encourage your prompt raising of any disputed time or services billed" and "to prevent an outstanding balance from being a source of friction between you and me, thereby protecting the fragile attorney-client trust arrangement."

In the agreement, Mr. Kutner also explained that he was charging 16 percent interest because, otherwise, in effect, he would be subsidizing a loan to Mr. Antonacci who would have had to pay at least 16 percent to borrow the funds on his credit card. "

"A requirement in a retainer agreement compelling a client to pay 16 percent interest on unpaid fees is excessive and unenforceable, a Nassau judge has ruled.

Instead, the client must pay interest on the unpaid fees at a rate of 9 percent, the amount of interest allowed by statute to be collected, both pre- and post-judgment, on amounts found collectible by courts, District Court Judge Gary F. Knobel ruled in Kutner v. Antonacci, 36363/06. [subscription]

When an attorney represents a soon-to-be testator, and there are problems after death, several principles of legal malpractice law arise: privity, statute of limitations, proximate cause.  Here is a NJ case which discusses several of the issues and gives a well written account of how the principles play out. 

Plaintiff is a surviving child, and is joined by her two sisters.  Result is that the estate may have a cause of action, and one sister may have an individual cause of action, but that the two remaining sisters lose.

"Given the wording of the agreement prepared by defendants, Clara may have had a reasonable expectation of representation as an "individual" as well as executrix. Cf. President v. Jenkins, 180 N.J. 550, 562-63 (2004) (insurance policy); Schor v. FMS Financial Corp., 357 N.J. Super. 185, 193-94 (App. Div. 2002) (need for extrinsic evidence). Defendants do not claim they expressly advised her that their representation was limited to her duties and responsibilities as executrix, irrespective of the impact on her as an individual or tax consequences to her personally, and thus it could have been "reasonable" for her to have so understood the retainer. See Restatement (Third) of the Law Governing Lawyers, § 19 (2000); id. at § 19 cmt. c. See also R.P.C. 1.2(c). Moreover, as the Restatement now confirms,

In trusts and estates practice a lawyer may have to clarify with those involved whether a trust, a trustee, its beneficiaries or groupings of some or all of them are clients and similarly whether the client is an executor, an estate, or its beneficiaries. In the absence of clarification the inference to be drawn may depend on the circumstances and the law of the jurisdiction.

[Restatement, supra, § 14 cmt. f.]

See also American College of Trust and Estate Counsel, ACTEC Commentaries on the Model Rules of Professional Conduct, Commentary on MRPC 1.2 (3d ed. 1999). Defendants had an obligation to define the scope of their representation of Clara more clearly. Accordingly, we reverse the grant of summary judgment as to Clara.

B.

The claim of Clara’s sisters requires a different evaluation. As such, it must be asked if the "non-clients will rely on the attorneys’ representations and the non-clients are not too remote from the attorneys to be entitled to protection." Petrillo, supra, 139 N.J. at 483-84; see also Stewart, supra, 142 N.J. Super. at 593. The non-clients in this case are beneficiaries, and the tax burden affected them individually, if not differently. In deciding the issue before us, the overarching inquiry "involves a weighing of the relationship of the parties, the nature of the risk, and the public interest in the proposed solution." Estate of Fitzgerald, supra, 336 N.J. Super. at 468 (quoting Barner, supra, 292 N.J. Super. at 261 (quoting Goldberg v. Hous. Auth. of Newark, 38 N.J. 578, 583 (1962))). See also Banco Popular N. Am. v. Gandi, 184 N.J. 161, 179-81 (2005); Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993); Restatement, supra, §§ 51, 56 cmt. c. As such, we must consider whether the beneficiaries’ interest is adverse to the testator’s intent or the interest of the Estate and what the reasonable expectation of the sisters may have been.

Plaintiffs contend that "Lolio was certainly aware of the identity of the two other beneficiaries" and that the beneficiaries’ "familial relationship to the executrix . . . is certainly not ‘too remote’ to absolve [him] from liability for deviations from accepted standards of legal practice[.]" They further assert that Clara "certainly invited her two sisters to rely upon Mr. Lolio’s opinion and actions in assisting [Clara] in settling their deceased mother’s estate[,]" and that Clara "owed a fiduciary duty to her two sisters of which Mr. Lolio was certainly aware, and his failure to advise that the use of the IRA moneys to pay federal estate taxes exposed Clara Heffernan to liability for breach of her fiduciary duties . . . ."

The winner of the Anna Nicole Smith lottery, who won in part because of his attorney, is now suing her to avoid a $ 600,000 legal bill.  Details.

"Anna Nicole Smith’s ex-boyfriend filed a lawsuit Friday against the celebrity attorney who helped him prove he is the father of Smith’s baby daughter.

Larry Birkhead’s lawsuit, filed in Los Angeles Superior Court, comes three days after lawyer Debra A. Opri filed papers seeking to force him into arbitration to resolve her $620,000 legal bill.

Birkhead’s lawsuit alleges legal malpractice, breach of fiduciary duty, conversion and fraud.

Birkhead maintains he is owed $885,000 paid to him by NBC Universal that Opri allegedly placed in a trust account.

He also claims Opri disparaged Smith in the media and attended her funeral despite Birkhead’s objections, and that she leaked confidential information to an MSNBC reporter against his wishes as a payback to the reporter for referring Birkhead to her as a client.

According the lawsuit, Opri initially told Birkhead she was a believer in the rights of fathers and would not charge for her services because the case would benefit her legal career. He later paid her $20,000 that she told him were costs associated with the paternity litigation.

Opri, through her spokesman, James C. Levesque, issued a general statement Friday claiming "Mr. Birkhead continues to release misleading information to the media that skirts the issue of his unpaid legal fees."

In addition to the television deal, Birkhead has received millions of dollars from selling photos of his daughter, making him capable of paying his overdue legal fees, according to the statement.

A hearing on Opri’s attempt to compel arbitration is set for July 9, according to the statement. "

We reported on this case a week ago, but here is another take on the issue of PA Appeals and vagueness:

"A Pennsylvania Superior Court panel has affirmed the dismissal of a legal malpractice action brought against Fox Rothschild by two brothers who claimed the firm’s handling of a family will left their inheritance lighter than it should have been.

However, the majority in Hess v. Fox Rothschild ruled that Philadelphia Common Pleas Judge Annette M. Rizzo had been wrong to reject the brothers’ appeal as too vaguely worded.

The case sheds light on a rare theme in the ongoing Pennsylvania Rule of Appellate Procedure 1925(b) saga.

Typically, state court judges have used that appellate procedural rule to bounce an appeal if the appellate statement was too long and/or raised too many issues.

But the rule also directed attorneys not to make their statements overly vague, and a number of appeals were quashed under that provision of the rule.

When the justices approved amendments to Rule 1925 earlier this month, they prospectively precluded judges from nixing an appeal solely because of the number of issues raised. That measure was likely in response to practitioners’ gripes that appeals in complex or high-stakes cases might necessarily involve dozens of issues.

But the high court also added new language to the rule that will permit civil litigation appellants to attach to their 1925(b) statements a preface explaining the statement has been phrased in general terms because the appellants don’t believe they can "readily discern the basis" for trial judges’ decisions. "

Here is a NJ case on legal malpractice insurance coverage for retired partners who continue handling certain matters.

"Thanks to ambiguous and vague policy language, a professional liability carrier will have to cover a law firm partner for malpractice allegedly committed after he left an insured firm, a New Jersey appeals court says.

The judges ruled on May 25 that where a policy limited coverage for a firm’s retired partners but not for partners who still practiced law and handled cases referred by the firm, the policy would be read against the carrier, Zurich Specialties London Limited.

"Zurich could have utilized policy language that would have eliminated all ambiguity and which would have put the matter beyond all reasonable question," the judges wrote in Jolley v. Marquess, A-4513-0. "Zurich did not do so; therefore, we construe the ambiguity in favor of coverage, which is the approach long favored in this state."

The judges noted, however, "Our own research, and that of the parties, yields no reported decisions in this state construing this policy language."

In 1997, John Marquess, a partner at what was then Marquess, Morrison and Trimble in Turnersville, N.J., represented defendant Barbara Gorna in an automobile accident case. The case was assigned by Gorna’s insurer, American Independent Insurance Co., a client of the firm.

In 2000, Marquess was bought out by his two partners but, with their consent, continued to represent Gorna as a Haddonfield, N.J., solo. No substitution of attorney appears to have been filed.

The same year, a jury found Gorna 100 percent liable for the injuries to the plaintiff, Kimberly Jolley. Without Gorna’s consent, Marquess entered into an agreement with Jolley’s attorney that Gorna would pay Jolley $750,000, plus interest, in damages. Marquess told Gorna she would not be responsible for the judgment above her $15,000 coverage limit, but that was not stated in the agreement.

Attorney is hired to fix IRS problems.  Tells Client to give he a check, and he will pay the IRS.  Check cashed, IRS not paid, Attorney arrested, and now a legal malpractice case.  Here is the story.

"BENTONVILLE — A Bentonville attorney arrested on fraud and theft charges has been sued by the mother and son who told police he mishandled amendments to their 2005 federal tax returns and Internal Revenue Service payments.

Rogers attorney Timothy C. Hutchinson filed the suit Wednesday in Benton County Circuit Court on behalf of Carol L. Fountain and Charles Fountain.

Archer was arrested earlier this month on criminal charges related to incidents addressed in the civil suit. He remains in the Benton County Jail in lieu of a $75,000 bond and is set to be arraigned July 2.

The civil suit claims the Fountains retained Archer in April 2006 to handle filing of amended tax returns that included income from an inheritance the Fountains received.

Archer told Carol Fountain she owed $36,000 to the IRS, and he asked the check be made out to him and he would forward the money.

Rather than paying the IRS, Archer cashed and presumably spent the money, the suit claims, and the tax return was never filed. "