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)."

Law.Com reports that 2 Florida attorneys were disciplined for settling a big big case, and then agreeing to be paid not to take more cases.

"The Florida Supreme Court disbarred one plaintiffs lawyer and handed another a two-year suspension for taking a $6.4 million fee from the defense to file no more cases against E.I. du Pont de Nemours & Co.

Roland R. St. Louis Jr. and Francisco R. Rodriguez of the defunct Miami firm of Friedman, Rodriguez, Ferraro & St. Louis had represented 20 clients suing DuPont for damages allegedly resulting from exposure to Benlate, a fungicide suspected of causing severe crop damage and withdrawn from the market in March 1991.

St. Louis, "the main strategist in the case," had DuPont in a difficult position. The trial court orally accepted a 110-page motion for sanctions for discovery abuse in the lead case, telling DuPont that it intended to sanction the company by striking its pleadings. The court encouraged it to settle the case, according to the high court’s opinion. Davis Tree Farms Inc. v. E.I. DuPont Nemours & Co., No. 1992-20006-CA-01 (Miami-Dade Co., Fla., Cir. Ct.).

DuPont eventually agreed to pay the plaintiffs $59 million if they would get the trial judge’s order vacated and sealed without publicity, settle 18 cases contingent upon the settlement of two key cases, and keep the settlement figures confidential, the opinion said.

At the same time, St. Louis and Rodriguez also agreed to a secret side deal by which the firm would receive a separate $6,445,000 fee from DuPont to refrain from further Benlate litigation against the company and to serve as counsel and/or consultants for the company in future matters, the high court said.

For the professional conduct rules violated in taking this fee, the state Supreme Court disbarred St. Louis and ordered him to disgorge $2,277,663, his share of the fee DuPont paid the firm. The Florida Bar v. St. Louis, No. SC04-49. Rodriguez received a two-year suspension, with a fee yet to be determined. Rodriguez could be ordered to pay as much as $1.4 million to the state bar’s Clients’ Security Fund. The Florida Bar v. Rodriguez, No. SC03-909. "

We reported on this case yesterday.  An ill known US Bankruptcy provision allows a 2 year period in which to bring an otherwise timely action, once the cause of action becomes an asset the estate in bankruptcy,

Victoria Kremen, who underwent unnecessary mastectory, should have had the benefit of "section 108 of the Bankruptcy Code provides in relevant part that: "[i]f applicable nonbankruptcy law . . . fixes a period within which the debtor may commence an action, and such period has not expired before the date of the [debtor’s] filing of the [bankruptcy] petition, the trustee may commence such action only before . . . two years after the order of relief." 11 USC §108 (a) (2). In turn, section 301 of the Bankruptcy Code provides that "the commencement of a voluntary case under a chapter of this title constitutes an order for relief under such chapter." 11 USC §301 (b). "

Her medical malpractice and appellate attorneys completely missed this winning argument against dismissal and are now legal malpractice defendants.  Here is the case.

A bill just passed out of committee in the NY State Senate, sponsored by the Court System [OCA] would amend CPLR 2001 to permit courts to forgive errors in the starting of law suits.  One example is a well-known mistake of purchasing an index number for a motion seeking leave to file a late notice of claim, receiving permission, and then using the same index number to start the case.

Joel Stashenko, in the NYLJ reports:

"The failure to properly acquire an index number or other similar procedural error attorneys make when filing an action, sometimes with fatal consequences to their cases, could be disregarded under legislation that has reached the floor of the state Senate.

Sponsors said the measure was prompted by a series of Court of Appeals rulings holding that such errors can result in outright dismissal of suits, provided that a timely objection is made to the defective filings. In one of the most recent rulings, in Matter of Harris v. Niagara Falls Bd. of Education, 6 N.Y.3d 155 (2006), the Court dismissed an action because the plaintiff filed the summons and complaint under the same index number that was used to make a motion to serve a late notice of claim and failed to pay another index fee.

The legislation stems from a proposal made by the Advisory Committee on Civil Practice at the Office of Court Administration. The Senate sponsor of the bill, Codes Committee Chairman Dale Volker, said the bill was introduced at the request of Chief Administrative Judge Jonathan Lippman.

The legislation, S3563, would amend §2001 of the Civil Practice Law and Rules to specify that "the failure to purchase or acquire an index number or other mistake in the filing process" that does not prejudice either party in the action "shall be disregarded" by the court. If a mistaken non-payment of a fee is involved, the legislation calls for the applicable fees to be paid and the non-prejudicial error to be ignored.

The bill would apply to the "filing of a summons with notice, summons and complaint or petition to commence an action."

Mr. Volker said yesterday the measure clarifies what he called uncertainty about how serious errors made in the initial filing of civil actions are in light of the finding in Harris and other court rulings, and also the discretion judges have under CPLR §2001 to allow for their correction.

"It gives the court discretion to correct or ignore mistakes that don’t go to the heart of the cases," Mr. Volker, R-Hamburg, said.

The bill cleared Mr. Volker’s committee on Tuesday."

At first blush, one assumes a loss of attorney-client privilege in legal malpractice, or in this case, an indeminfication case for legal costs.  The sued party would like to explore how the case was settled, whether settlement was reasonable, and why they should have to pay a settlement in which they did not participated.  Part of defending this case will be dissecting the attorney’s performance.

"A party suing to enforce purported indemnification rights for the costs of a prior lawsuit does not automatically waive its attorney-client privilege for communications from the prior action, an appellate panel has held.

"So far as the record for this appeal discloses, plaintiff, in commencing and prosecuting this action, has done nothing to waive the protection of the attorney-client privilege or the work-product doctrine as to materials concerning the defense and settlement of the prior lawsuit for which indemnity is sought," Justice David Friedman (See Profile) wrote for the unanimous Appellate Division, First Department, panel in Deutsche Bank Trust Company of Americas v. Tri-Links Investment Trust, 8893N. "

A Rochester Law firm sent a letter to a Connecticut artist, and ended up in SDNY over the Fair Debt Collection Practices Act.  Right now, the case stays in the SDNY and will not be moved to Western District, wherein Rochester lies.

"PLAINTIFF CONNECTICUT resident’s lawsuit alleged that defendant Rochester, New York-based law firm was a "debt collector" as defined by the Fair Debt Collection Practices Act (FDCPA) and that its April 4, 2006 letter, mailed to her New York city art studio, violated the FDCPA. After considering the factors in D.H. Blair & Co. Inc. v. Gottdiener, the court denied the law firm’s motion to transfer plaintiff’s suit – seeking actual and statutory damages, costs, and attorney’s fees – to the Western District of New York. Noting that plaintiff brought suit in the district to which defendant sent – and plaintiff received – the letter, the court deemed plaintiff’s forum choice entitled to deference. In concluding that the parties’ convenience also called for retention of plaintiff’s action in the Southern District of New York, the court noted that plaintiff regularly travels to the district in order to paint in her studio, and that the law firm had not shown that travel from Rochester to defend the action would impose a significant hardship. "