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. "

Hinshaw reports this case:

"J. Michael Koehler v. Jules Brody, et al., ___F.3d___, 2007 WL 895864 (8th Cir. 2007)

Brief Summary
Two years after a court approved a class action settlement, a lead plaintiff brought suit against former class counsel for breach of fiduciary duty and misrepresentation, claiming that the settlement was too low and that it should have been paid in stock to avoid adverse tax consequences. The appellate court affirmed the dismissal of these claims on the ground that the plaintiff was collaterally estopped from suing class counsel to attack the class recovery.

Complete Summary
This case arose out of a global settlement of a number of class action cases related to the merger of NationsBank and BankAmerica into Bank of America. J. Michael Koehler was a lead plaintiff and class representative. The court appointed the firms of Green, Schaaf & Jacobsen, P.C., Chitwood & Harley, and Stull, Stull & Brody as co-lead counsel. A mediation was held in January 2002 under the direction of a former federal district judge. Mr. Koehler and some other lead plaintiffs were present at negotiations but left after two days. The mediation continued and resulted in a $490 million settlement. The court looked at two other similar cases in which plaintiffs were collaterally estopped from suing representatives because implicit in the lower court’s approval of the settlement was a finding that the class had been adequately represented. See Laskey v. UAW, 638 F.2d 954 (6th Cir. 1981) and Thomas v. Powell, 247 F.3d 260 (D.C. Cir. 2001). Mr. Koehler could not establish injury without relitigating an issue already decided by the class action court. The same rule applied whether the allegations were of malpractice or breach of fiduciary duty and related claims of aiding and abetting a conspiracy. Although Mr. Koehler tried to allege newly discovered evidence to get a “second bite of the apple,” the court noted the issue is not whether the district court was aware of every fact alleged when it approved settlement, but whether the earlier judgment prohibits Mr. Koehler from litigating his claim that the alleged misconduct was the proximate cause of injury to him. Id. at *7.

The court concluded that Mr. Koehler was effectively trying to renew his old arguments that the settlement was too low. When the district court approved the settlement over Mr. Koehler’s objections and awarded attorney fees, it determined the attorneys had provided “more than adequate representation and that the very favorable settlement was ‘fair, reasonable and adequate.’” Id at *7. Mr. Koehler could not establish a breach of duty and a causal injury without relitigating an issue already decided, and therefore the dismissal was affirmed.

Significance of Case
This decision affords class counsel some protection against plaintiffs with “buyer’s remorse” who may try to sue counsel for malpractice or breach of fiduciary duty to get another chance to reopen the issue of the settlement amount. "

Lory v. Parsoff,  296 A.D.2d 535; 745 N.Y.S.2d 218; 2002 N.Y. App. Div. LEXIS 7584 
illustrates the danger of wrongly filing a security documents, such as a UCC1.  Of course, purchaser defaulted, and lender lost all.  In the legal malpractice case, attorney lost its fee paid to date, the cost of trying to fix the case, as well as the value of the secured interest.  In a later appeal, fees paid to the bankruptcy attorney were disallowed.

"An attorney’s failure to file a UCC financing statement in the manner necessary to perfect his client’s security interest constitutes malpractice as a matter of law (see Hart v Carro, Spanbock, Kaster & Cuiffo, 211 AD2d 617; Deb-Jo Constr. v Westphal, 210 AD2d 951). Furthermore, the Supreme Court properly granted summary judgment on [***3] the cause of action to recover an award of an attorney’s fee expended to retain alternative counsel as a result of the defendants’ malpractice (see Affiliated Credit Adjustors v Carlucci & Legum, 139 AD2d 611). Additionally, there is no merit to the defendants’ challenge to the plaintiff’s claim for a refund of the legal fee paid to them in connection with the negligent representation (see Campagnola v Mulholland, Minion & Roe, 76 NY2d 38)."