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]). "

"Settlement" was binding after attorney agreed to settle case in court, with City of NY.  The evidence?  Not a transcript, not the client in open court; it was a marking on the "court card" of "settled" made by the clerk. 

This is an expansion of the "settlement in open court" doctrine, which holds that there must be either a writing or an acknowledgement of settlement in open court, on the record.  Here plaintiff wanted to try the case, but was bound by her attorney’s apparent although exceeded authority.

"Plaintiff implicitly ratified the settlement by making no formal objection for nearly seven months after being told about it (Clark v Bristol-Myers Squibb & Co., 306 AD2d 82, 85 [2003]). Furthermore, the requirements of CPLR 2104 were met when, following the conference and counsel’s acceptance of the settlement, the court clerk updated the court card to read "settled before trial" and marked the case "disposed" in the court’s records (Popovic v New York City Health & Hosps. Corp., 180 AD2d 493 [1992]). "

Victoria Kremen suffered unnecessary bilateral mastectomomy, and then legal malpractice, and then bankruptcy, Law.com reports:

"A New York state judge has permitted a legal malpractice suit to proceed against plaintiffs lawyers who allegedly failed to seek a bankruptcy extension for their client, causing her medical malpractice case to be thrown out as untimely.

The article does not make this clear:  why legal malpractice?  A medical malpractice case was brought 1 month after retaining Benedict Morelli’s law firm, and took place during/around the bankruptcy.  Is the legal malpractice for allowing the case to be dismissed?

In denying a motion to dismiss the action against law firms Morelli Ratner and Schapiro & Reich, Manhattan Supreme Court Justice Emily Jane Goodman said a combination of equitable estoppel and the U.S. Bankruptcy Code’s tolling of statutes of limitations might have saved the underlying lawsuit, even though the medical malpractice at issue took place over a decade ago. "

"The statute of limitations for medical malpractice cases in New York is 2 1/2 years following the malpractice. The trial court dismissed the suit as untimely and rejected the plaintiff’s argument that the misdiagnosis had been fraudulently concealed from her. The Appellate Division, 1st Department, upheld the ruling in 2005, finding that Kremen’s 25-month delay in bringing an action even after learning of the alleged malpractice in 1999 was "unreasonable as a matter of law."

But Justice Goodman, in Kremen v. Morelli & Associates, 101739/06, said the delay may not have been unreasonable in light of §108 (a) of the Bankruptcy Code, which grants debtors an additional two years to file claims that "applicable nonbankruptcy" laws would otherwise require them to file in the midst of bankruptcy.

The judge said New York’s laws on the tolling of statute of limitations law constituted the type of non-bankruptcy law contemplated in the Bankruptcy Code. "

We’ll report the case when it is published.

This Appellate Division Case points up how the court  treats just one too many mistakes.  Default, followed by failure to oppose a motion followed by….  The court uses the phrase "pattern of willful default.

"To vacate the order dated February 18, 2005, entered upon the plaintiffs’ default in opposing the appellants’ motion pursuant to CPLR 3042 and 3126 to dismiss the complaint insofar as asserted against them, the plaintiffs were required to demonstrate both a reasonable excuse for their default and a meritorious cause of action (see CPLR 5015[a][1]; Watson v New York City Tr. Auth., 38 AD3d 532; Echevarria v Waters, 8 AD3d 330, 331). Although the Court may, in its [*2]discretion, accept law office failure as a reasonable excuse (see CPLR 2005; Putney v Pearlman, 203 AD2d 333), "’a pattern of willful default and neglect’ should not be excused" (Roussodimou v Zafiriadis, 238 AD2d 568, 569, quoting Gannon v Johnson Scale Co., 189 AD2d 1052). Here, the plaintiffs’ attorney’s failure to respond to the demand for a bill of particulars, to timely comply with the preliminary conference order dated September 14, 2004, and to oppose the appellants’ motion to dismiss the complaint, and his further one-year delay in moving to vacate the order dated February 18, 2005, constituted a pattern of willful default and neglect that cannot be excused (see Diamond v Vitucci, 36 AD3d 650; Amato v Fast Repair, Inc., 15 AD3d 429, 430; Santiago v New York City Health & Hosps. Corp., 10 AD3d 393, 394). Under these circumstances, the Supreme Court improvidently exercised its discretion in granting the plaintiffs’ motion to vacate the order dated February 18, 2005, entered upon their default. "

In a recent successful case, plaintiff was a large real estate management company. Plaintiff was involved in a 500 million dollar financing involving 3 NYC downtown buildings. The general counsel asked one of the multiple large firms whether "mortgage spreading" could be used to avoid payment of new mortgage tax. When told "no", the financing continued to closing. At closing it was determined that $1.7 million in mortgage tax could have been legally avoided, contrary to the advice. Prior to jury selection this case settled for $ 900,000.

Attorney malpractice arises in matrimonial settings too. In another recent successful case, Plaintiff -wife had a history of suicide attempts, which were one of the bases of husband’s claim of cruel and inhuman treatment. Plaintiff had a history of psychiatric hospitalizations. Days after her release, her attorney and she attended a court hearing on custody, which turned into a settlement of the entire divorce. At the time, she was still on psychotropic medication, and only days out of the in-patient hospitalization. This attorney malpractice matter was settled for $350,000.

Attorney malpractice case arise in unexpected circumstances and may be more vital and valuable than expected. Analysis of the four elements of attorney malpractice is required to determine whether a case exists, and may successfully be prosecuted. As always, the elements are: professional relationship, deviation, proximate cause [including the "but for" element,] and damages.