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. "

Hinshaw reports:

"California Court Finds No Duty Owed to Reinsurer by Defense Attorney Who Was Hired by the Primary Carrier

May 15, 2007

Zenith Insurance Company v. Cozen O’Connor, ___Cal.Rptr.3d___, 2007 WL 841119 (Cal.App. 2 Dist. 2007)

Brief Summary
The California Court of Appeal for the Second District affirmed the dismissal of a legal malpractice claim brought by a reinsurer against a law firm hired by the primary carrier to represent the insured. The court held that the firm owed no duty of care to the reinsurer because no attorney-client relationship existed under an implied contract, nor was the reinsurer a third party beneficiary of the underlying attorney-client relationship.

Complete Summary
Royal Insurance Company (“Royal”), the primary carrier, had entered into a reinsurance agreement with Zenith Insurance Company (“Zenith”) for coverage provided by Royal to Foss Maritime (“Foss”) regarding liability for the environmental cleanup of the Middle Waterway of Commencement Bay in Tacoma, Wash. (the “Middle Waterway claim”). Royal advised Zenith that there were 22 other insurers potentially liable for the same claim. Royal engaged the Cozen O’Connor firm to provide legal services to Royal regarding this claim, as well as other Foss pollution claims in the State of Washington. "

All right, the attorney did not "bark like a dog".  His behavior was bad enough for the judge to boot him out of West Virginia [or revoke his admissions pro haec vice]  Here is the story.:

"WINFIELD – Putnam Circuit Judge Ed Eagloski chased a Texas lawyer back to the Lone Star State for misbehaving in a deposition.

At a hearing May 11, Eagloski vacated an order allowing Kevin Oncken of San Antonio to defend Putnam General Hospital in malpractice suits.

"He was degrading, demeaning and completely unprofessional," said Eagloski, who had seen tape of Oncken deposing a plaintiff.

Eagloski said Oncken told Charleston attorney Richard Lindsay that if he wanted to talk to him, he should put on lifts. Oncken stands about 10 inches taller than Lindsay.

Eagloski said he would refer Oncken to the West Virginia Bar, and he said he would send the tape to the Bar. He also said he could also take privileges away from Oncken’s partner, Jeffrey Uzick.

"But I think he will take the warning of this court appropriately," Eagloski said. "Will you do that, sir?"

"Yes sir," Uzick said. "

Here, law firm disqualified because it represented plaintiff and defendant at the same time in different cases.  Lawfirm’s response, No, its OK!!

"HRH Construction LLC v. Palazzo, 600857/06
Decided: May 4, 2007

Moreover, although multiple representation may be permissible where, after full disclosure of the risks of such representation, the attorney has obtained the consent of both parties, here there is no indication that disclosure was made and consent obtained. Although HRH may well have been sloppy about keeping track of the attorneys that represented the company in different cases, a client has no fiduciary duty to be vigilant about the identity of its attorneys. In contrast, given the mandates of DR 5-105 and DR 9-101, attorneys have a responsibility to "’avoid not only the fact, but even the appearance, of representing conflicting interests’" (Cinema 5 Ltd. v. Cinerama, Inc., 528 F2d at 1387 [citation omitted]), and to insure that they have not undertaken simultaneous representation without disclosing the existence of that representation and obtaining consent of both clients. Unfortunately, counsel for defendants have failed to do so here.

Accordingly, it is hereby

ORDERED that plaintiff’s motion to disqualify is granted. "

This is a sad case of willful ignorance, passive-aggressive client behavior, and a refusal to acknowledge reality. Its a car accident turned legal malpractice case.  Unusually, it is the defendant – client who is suing his insurance defense attorneys. 

Driver had a 15/30 policy [as small as possible] and really injured the other driver.  Insurance compnay put up its $ 15 and then over and over tried to warn plaintiff that his coverage was too small, and that he had to do something about the situation.  He did not, and although he probably could have added a simple $ 1000 per month for 5 months, ended up with a judgment of $ 150,000 which he has to pay through salary garnishment. 

Of interest are two discussions of the use of expert reports, here, of the attorney expert.  Note: the term net opinion.

"In our review of Nathan’s two reports and Nathan’s deposition, we find no citation to professional standards or customs as reflected in defense lawyers’ journals or articles in support of his opinion that defendants committed legal malpractice. Additionally, Nathan references no judicial or statutory authority establishing the existence of a standard of care for defense attorneys, when the client’s monetary exposure over the policy limits places the client in jeopardy of a substantial excess verdict. Instead, other than a recitation of Nathan’s own personal opinion as to the standard of care based on his years of experience as a personal injury trial attorney, Nathan relies for his opinion on defense counsel’s alleged breach of Rules of Professional Conduct (RPCs) 1.4 (communication), 1.3 (diligence), and 1.1 (gross negligence) as support for his opinion. In Baxt v. Liloia, 155 N.J. 190, 197 (1998), the Court concluded that a violation of the RPCs alone does not give rise to a cause of action for legal malpractice. The reason is that the disciplinary codes were not designed to establish standards for civil liability. Id. at 201; see also Barsotti v. Merced, 346 N.J. Super. 504 (App. Div. 2002).

We are convinced that Judge Stroumtsos in his comprehensive and well reasoned written opinion correctly determined Trivedi’s legal malpractice expert’s testimony was inadmissible because his testimony constituted a net opinion. See Townsend, supra, 186 N.J. at 494. The court found the expert’s opinion was based on his personal beliefs and unsupported by any evidence demonstrating industry standards and customs. See Stoeckel, supra, 387 N.J. Super. at 14. The judge concluded that without an expert opinion establishing the standard of care required of a defense attorney in advising his/her client as to the client’s potential personal exposure in the event of a damages verdict in excess of the liability insurance policy limits, Trivedi’s claim for legal malpractice could not be proved and that defendants were entitled to judgment as a matter of law. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523-24 (1995)."

 

 

 

 

 

 

This is a car case in which verdict was $ 25,000 for loss of income, $ 20,000 for past pain and suffering and $ 0 for future pain and suffering.  Smelling a problem, plaintniff’s attorney asked the court to interview jurors.  One of them was a physical therapist, and plaintiff wanted to show that the jurur used his personal knowledge to find against plaintiff.

Plaintiff gets new trial, but now, loses all loss of income claims because basid non-economic loss not recoverable.  Victory or defeat ?

From this weeks advance sheets:

"Although plaintiff denominated the motion denied by the May 2006 order as one to vacate a default, the dismissal order was not rendered on default within the meaning of CPLR 5015(a)(1), since plaintiff had appeared in opposition to the motions and cross motions to dismiss. Given that plaintiff’s motion to vacate was based on evidence that had not previously been submitted to the IAS court, we exercise our discretion, in the interest of justice, to deem that motion to have sought renewal of the dismissal order pursuant to CPLR 2221(e) (see Tishman Constr. Corp. of New York v City of New York, 280 AD2d 374, 376-377 [2001]), and, upon review, we find that the new evidence warranted reinstatement of the complaint. That evidence, including the affirmation of a psychiatrist and the affidavit of a licensed clinical social worker, establishes that plaintiff’s former attorney failed to comply with the October 31, 2005 discovery deadline due to panic and anxiety attacks he was suffering as the result of a diagnosed mental illness, combined with other difficulties in functioning caused by a change in the dosage of his psychiatric medication. Since it is undisputed that plaintiff has now provided all required disclosure, and there has been no showing that reinstatement of the complaint will cause any cognizable prejudice to defendants, we decline to impose on plaintiff the drastic penalty of dismissal of the complaint as a sanction for the non-volitional failures of its former attorney related to his mental illness (see Jiminez v St. John’s Riverside Hosp., 161 AD2d 497 [1990]). "