Here a tax preparer was sued for not telling an "innocent spouse" about the danger of filing a joint return, when she could have filed an individual return and avoided a startling amount of liability.  After bankruptcy, wife sued and lost.

"Shortly before Ted’s death, Camille discovered that Ted had failed to pay the taxes. When attempting to sell the marital home, Camille learned that tax liens had been placed on the property to secure Ted’s business liability for federal withholding tax, interest and penalties. Camille ultimately fi led for bankruptcy and settled the federal and state tax liabilities. Camille then sued Crincoli and his fi rm for accounting malpractice, asserting that he had failed to advise her that, by fi ling a joint tax return, she could be exposed to personal liability for taxes, interest and penalties relating to her husband’s business – liabilities that she would not have borne had she fi led separately.

At trial, Camille’s accounting expert testifi ed that Crincoli had deviated from accepted accounting practices by failing to explain the risks of fi ling a joint return to both spouses. The expert conceded, however, that these “accepted practices” did not derive from standards set by the AICPA or the IRS, but rather were based upon his “personal” standards. In contrast, Crincoli’s expert testifi ed that Crincoli had acted properly and should not have been expected to investigate the accuracy of the information provided by the husband or to discover that the marital home was held in the wife’s name. The expert testifi ed further that it was not uncommon for one spouse to act as the agent for the other in communicating with a tax preparer.

After a four-day trial, the trial judge dismissed the complaint and entered judgment in the amount of $6,000 (the outstanding accounting fees) in favor of Crincoli. On appeal, the Appellate Division affi rmed the lower court’s ruling. The appeals court agreed with the trial court’s ruling that Camille’s expert was not credible, and that the standard of care set forth by Crincoli’s expert should govern. The appeals court also noted, that even if Crincoli had been negligent, that his negligence was not the proximate cause of Camille’s damages; she did not present any evidence that, had she been informed of the risks of fi ling jointly, she would have acted differently.

While both the trial and appeals courts ultimately sided with the tax preparer in Daunno, accountants and tax preparers should consider providing a standard written disclosure to their clients making clear that they are relying on the information supplied to them by the clients themselves and that they are undertaking no duty to conduct an independent investigation to confi rm the accuracy or completeness of that information. "

Dismissal under CPLR 3216, for a failure to provide discovery, or to follow a court order of discovery has been generally thought to preclude the use of CPLR 205.  CPLR 205 is a "saving statute"  which allows plaintiff to start a second action within 6 months of the dismissal of the first, so long as it was not for certain reasons.  Here, in this case:

"CPLR 205(a) provides that

"[i]f an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff, or, if the plaintiff dies, and the cause of action survives, his or her executor or administrator, may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period."
While dismissal of an action for failure to comply with discovery orders has been held to be a dismissal for neglect to prosecute the action’ within the meaning of CPLR 205(a) (see Andrea v Arnone, Hedin, Casker, Kennedy & Drake, Architects & Landscape Architects, P.C. [Habiterra Assoc.], 5 NY3d 514, 518), here, the plaintiffs’ conduct did not rise to that level. "

There is a saying that bad cases make bad law.  We’ve always understood that proverb to mean that poorly argued or conceptualized cases affect the entire field of law.  Here is an example of the situation.  Pro-se defendant attorney in a legal malpractice case was served directly in hand by the attorney for plaintiff.  Why the attorney did not use a process server is beyond us.  Nevertheless, this appellate division case is now law, and must be digested.

"The advocate-witness disqualification rules contained in the Code of Professional Responsibility provide guidance, not binding authority, for courts in determining whether a party’s [counsel], at its adversary’s instance, should be disqualified during litigation" (S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d 437, 440). At bar, the hearing court providently exercised its discretion in permitting the plaintiffs’ counsel to testify at a hearing that he personally delivered the summons and complaint, by hand, to the defendant Ronald J. Chisena. Where, as here, there is no necessity for the plaintiffs’ counsel to be called as a witness at trial, no violation of the advocate-witness rule exists (see Code of Professional Responsibility DR 5-102[c][22 NYCRR 1200.21(c)]; S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., supra at 443). "

Attorney Malpractice is a litigation form with many highly sophisticated rules.  Attorneys make up the rules of attorney litigation.  Legal malpractice is subject to very stern analysis by judges.  Here is an article from Texas which sets forth rules on specificity there.

"In a further illustration of the need to avoid conclusory affidavits in summary judgment proceedings, a legal malpractice claim foundered when an affidavit concerning damages was found to be conclusory in United Genesis Corp. v. Brown, No. 04-06-00355-CV, 2007 WL 1345372 (Tex. App.—San Antonio May 9, 2007). "

Roger D. Blackwell is a former marketing professor in college, who did very well for himself.  However, he was convicted of insider trading when a "federal jury in Columbus found that Blackwell, a member of Worthington Foods Inc.’s board of directors, illegally tipped off friends and relatives in 1999 to Kellogg Co.’s secret pending purchase of Worthington Foods, and then covered it up"  Now, in this story, a " Minnesota insurer wants former marketing professor Roger D. Blackwell to return $2.6 million the company gave him to help pay for his legal defense against federal insider-trading charges."

What is even more astounding is that he paid $6 million to his criminal defense attorneys.  How does a professor even contemplate such a big fee?  Better yet, the law firm is now suing him for an additional $ 2.7 million which they say he owes! "The former consumer-behavior professor said in a legal malpractice suit filed last year that he paid nearly $6 million to his previous trial attorney, Thomas O. Gorman, and law firm Porter, Wright, Morris & Arthur.

Blackwell said Gorman and Porter, Wright, based in Columbus, misled him about his defense, did a poor job handling his criminal trial and charged him excessive fees.

Gorman and Porter, Wright denied Blackwell’s claims and countersued for more than $2.7 million in allegedly unpaid fees and expenses.

After Blackwell was convicted, he hired attorney William Wilkinson and law firm Thompson Hine for the appeals process, which was unsuccessful.

In addition to Blackwell’s six-year sentence, he was fined $1 million by U.S. District Judge James L. Graham. Blackwell also faces a potential $1 million judgment in a civil insider-trading complaint filed against him by the U.S. Securities and Exchange Commission.

It bills itself as "The Oldest Law Journal in the United States", and reports today on this legal malpractice dismissal in Pennsylvania.  Here, in an estate/inheritance legal malpractice, the case was dismissed on motion, and the appeal ran afoul of a Penn statute against vagueness.  What follows is a discussion of the statute:

"A 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 appellate judges 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 of the ongoing Rule 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 why the statement has been phrased in general terms if don’t believe they can "readily discern the basis" for trial judges’ decisions.

In a NYLJ article today [subscription], Professor Patrick Connors discusses letters of retention and litigation.

He writes:

"In this installment, we will take a few steps back to the inception of the representation and discuss a rule that affects the substantive rights of lawyers vis-à-vis their clients. ""Conclusion

Until the Court of Appeals finally speaks to the matter, we recommend that the bar satisfy the requirements of Part 1215 and observe the resolution of these issues from afar."

While many think of trial law as a form of gambling, here is the real thing.  Keno operator wants to break up a partnership and open his own gambling shop.  Hires attorneys to do the transactional work, and gets bad advice.  He wins  $1.6 million, which is reduced to $229,000.

"The Nebraska Supreme Court soon will hear a two-sided appeal in a legal malpractice case involving a keno operator and the state’s second-largest law firm.

Richard T. Bellino wants the court to reinstate a jury verdict awarding him $1.6 million but District Judge Patricia Lamberty ruled that the trial evidence did not justify that amount and ordered McGrath, North, Mullin & Kratz to pay Bellino $229,000.

In a brief to the court, Bellino’s attorneys, David Domina and Claudia Stringfield wrote, "A jury verdict should be jealously guarded and maintained by our courts, and Nebraska law does not permit a district court to crown its view by underwriting a conclusion rightfully reached and supported by evidence, but not agreed to by the district court."

The law firm wants the high court to dismiss the case entirely. "

In a brief for the firm, attorneys John Douglas and David Blagg wrote, "An attorney who acts in good faith and with an honest belief that his or her actions are well founded in the law and in the best interest of his client, is not liable for malpractice even if he is mistaken."

Douglas and Blagg wrote that the trial court should have ruled that Bellino’s attorneys caused him no damages. "