Thomas Liotti, who has of late been pushing the bounds of criminal defendant representation, and has, incidently, sued the Nassau County DA, is in the news for an inventive investigation. 

His client was accused of abusing a child.  The child and its parents were the subject of a neglect proceeding in Family Court, and Liotti used that proceeding to generate statements exonorating his criminal defendant.  Result?  Lots of outrage.

From the NYLJ

"A Nassau judge has declined to disqualify from a criminal case a defense attorney who took statements from prosecution witnesses without the permission or presence of their attorneys in a related Family Court matter. In November 2005, the prosecutor filed an information charging Mr. Quiroz, 54, of Freeport, with abusing a 16-year-old retarded girl. Mr. Liotti denied that the girl was retarded.

In February 2006, the Nassau County Department of Social Services brought a neglect motion in Family Court against the alleged victim’s mother. The county also commenced a proceeding against Mr. Quiroz. Mr. Liotti served as Mr. Quiroz’s attorney in both matters.

Family Court appointed Steven Herman, a solo practitioner in Rockville Center, as law guardian to represent the girl and Connie Gonzalez, of Legal Aid in Hempstead, to represent the mother.

On Oct. 16, 2006, Mr. Liotti wrote to the district attorney asking that the criminal charges against his client be dismissed. He submitted affidavits, dated Oct. 12, in which the girl recanted her accusation and the mother stated that the alleged incident could not have occurred.

Judge Kluewer said that the record "amply demonstrated" that Mr. Liotti did not get the consent of either Mr. Herman or Ms. Gonzalez before communicating with their clients.

Mr. Herman moved in Family Court to disqualify Mr. Liotti on the grounds he had violated DR 7-104 of the state’s Code of Professional Responsibility. That provision prohibits an attorney from communicating with an opposing party that the attorney knows to be represented by counsel, unless the attorney has secured the prior consent of the opposing party’s counsel.

Mr. Herman also sought to preclude the use of the statements.

Judge Hope S. Zimmerman, now an acting Supreme Court justice (See Profile), ruled that Mr. Liotti had violated the alleged victim’s due process rights and disqualified him from representing Mr. Quiroz in Family Court.

Mr. Liotti appealed to the Appellate Division, Second Department, which has stayed the Family Court order pending the resolution of the criminal matter.

Meanwhile, the district attorney’s office moved for virtually identical relief in District Court. It argued that Mr. Liotti should be disqualified in light of his attempted use of "improper communications" to seek a dismissal of the criminal matter. Further, the district attorney asserted that it would be contrary to the interest of justice to allow the "product of this improper conduct" to be used.

The prosecutor also suggested that Mr. Liotti might have to appear as a witness "in order to determine the genuineness and circumstances of the purported recantations."

In response, Mr. Liotti argued that neither the girl nor her mother were a "party" to the criminal case. He noted that the girl has turned 18 and was no longer entitled to representation by the law guardian.

Mr. Liotti also claimed that because his associates, and not him personally, appeared in Family Court, he was "not aware" that the girl and her mother had counsel.

Judge Kluewer said she was not persuaded by Mr. Liotti’s assertions that he did not know that counsel represented the girl and her mother.

"Given his experience, he certainly should have known of the representation, and neither he nor his associates should have communicated either with the alleged victim, or her mother without the consent of their respective attorneys," Judge Kluewer said.

But the judge agreed that neither the girl nor her mother was a party to the criminal action. And she said that the purposes of the two proceedings were different.

The aim of the criminal action was to determine if the defendant had committed a wrongful act and, if so, to assess blame and impose punishment, the judge said. In that context, a defense attorney is obliged to zealously represent his client and is authorized to conduct the "broadest possible range of pretrial investigation."

By contrast, the Family Court proceeding is essentially civil, Judge Kluewer said. "The real subject of a neglect petition is not the respondent against whom it is brought, but the child it concerns," she said.

The judge noted that the considerations underlying the Family Court ruling did not pertain to the matter before her. But she said that the prosecutor apparently was seeking to punish Mr. Liotti because of factors relevant to the Family Court proceeding.

"I am aware of no public policy or other consideration pertinent to this action that warrants interfering with Defendant’s fundamental, albeit not absolute, right to counsel of his own choosing," Judge Kluewer held.

She also declined to preclude statements Mr. Liotti obtained from the alleged victim and her mother.

"Apart from the fact that such a spectre implicates the constitutional right to confront the people’s witnesses with prior inconsistent statements in New York, exclusion of a statement is not an appropriate remedy for the misconduct about which the people complain," she said. "

Wife obtained a judgment against her divorcing husband for $ 750,000.  Her attorney took his time entering the judgment, and violated 22 NYCRR 202.48(a), which provides 60 days after the entry of an order directing settlement of the judgment to submit a proposed judgment.  Holding?  Plaintiff loses her judgment!

Farkas v Farkas
2007 NY Slip Op 03762
Decided on May 1, 2007
Appellate Division, First Department

"The Court of Appeals has recently made it clear that "statutory time frames – like court-ordered time frames – are not options, they are requirements, to be taken seriously by the parties" (Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725, 726 [2004] [citation omitted], following Brill v City of New York, 2 NY3d 648 [2004]). Thus, where a statute or court rule prescribes a limited time frame in which to take a procedural step in litigation, and states that a party’s failure to act within that time frame will be excused only upon a showing of "good cause," such a showing requires demonstrating, as the dissent puts it, "more . . . than [the] merit . . . [of] the underlying application and a lack of prejudice to the other party." This bench is unanimous in holding that this principle applies in the instant case, in which plaintiff failed to comply with the 60-day time frame for the submission of a judgment to the court for signature (Uniform Rules for Trial Cts [22 NYCRR]
§ 202.48[a], [b]). Because plaintiff has failed to show good cause for her failure to comply with the time frame set forth in the Uniform Rules, we are constrained to reverse and vacate the judgment. "

For the entire case.

Legal malpractice is sometimes just about missing a deadline.  Sometimes its just about being lazy.  One recurrent theme is attorneys taking on a field in which they do not understand the subtle problems.  Here is an example:

"One of the Prohibited Words is the phrase “prior art”. There is no reason whatsoever for the words “prior art” to appear in any patent application. Making any characterization of prior art is opening an avenue for attacking an issued patent and may unnecessarily complicate patent prosecution.

When someone cites “prior art” in a patent, they are making some characterization or drawing a comparison to what they think the prior art may be. In order to attack the patent, it may be possible to show that the prior art was actually something different or could be characterized in a completely different manner. This could lead to rendering the patent invalid through inequitable conduct, or at least show the patent in a bad light in front of a (non-technical) judge and jury who are hearing the case.

Characterizing prior art may complicate prosecution because an Examiner may take exception to your assertion that the prior art is one thing while the Examiner may characterize the same text as another thing. I don’t know if using any of the Prohibited Words rises to the level of legal malpractice, but overuse or sloppy use of terminology does indicate a low level of proficiency in patent drafting. My very first patent application, written without the help of a patent attorney or agent, was replete with the Prohibited Words. "

Here, from the subscription Chicago Daily News is a snippet in which a high ranking Illinois State Police official has sued the State Attorney General for a sloppy defense of a trooper, or so the short blurb implies. 

 

 "An Illinois state police colonel has filed a legal-malpractice lawsuit against the state attorney general and two of her assistants alleging that they failed to adequately represent the officer in a federal case. "

If you have a subscription, read on.  Send me the story.

Its a concept rarely seen or heard, and even more rarely invoked because of the county, not country where the law suit is brought.  Guess?  The law firm is defending itself in this legal malpractice case, and has a little too much time on its hands.

The Madison County Record, a newspaper which frequently features news about legal malpractice reports:

"The Illinois Appellate Court in Mt. Vernon unanimously affirmed St. Clair County Circuit Judge Lloyd Cueto’s decision to deny a motion to dismiss a legal malpractice case pursuant to the doctrine of forum non conveniens.

Rick Rosen and the Rosen Law Firm had argued to Cueto that St. Clair County was an inappropriate forum for Ivan Brant’s professional negligence and fraud claims arising from the defendants’ representation of the plaintiff.

Rosen and his law firm are both reside in St. Clair County.

Brant filed a six-count complaint against Rosen, the law firm, and a third defendant, Dwight Hardin, who is employed as a consultant by Rosen’s firm.

He alleged that he retained Rosen and the law firm to represent him in his Federal Employers’ Liability Act (FELA) for damages against his employer, Union Pacific Railroad, for injuries he received during the course of his employment.

Brant alleged that both Rosen and Hardin told him that they were licensed, practicing attorneys, even though Hardin allegedly was not an attorney.

Brant alleged Rosen and Hardin negligently "instructed and counseled" him to settle his FELA case against the railroad for less than its fair value, failed to conduct an adequate investigation into the liability and damage evidence, and settled his case without filing suit or conducting any discovery and before he attained maximum medical improvement.

He also alleged that he received substantially less in settlement for his case than it was worth and, therefore, "suffered significant damages in the form of inappropriate compensation for past and future medical expenses, past and future wages, pain, suffering, disability and disfigurement."

In addition to the professional negligence claims, Brant also claimed that each defendant was guilty of fraud because Rosen, individually and through the law firm and Hardin made several untrue statements.

According to Brant, he was told that he was required to accept Union Pacific’s settlement offer of $150,000 or be forced to accept $20,000 and relocate to Utah as a security guard. "

Closely akin to legal malpractice, here an Iowa County defends its sheriff’s negligence in process service.  In New York, the attorney may be held responsible for the process server’s negligence.  Here the county is defendant:

"Douglas County might have to pay a hefty price for an employee’s failure to deliver.

The county finds itself as the defendant in a medical malpractice lawsuit because, contrary to a civil process server’s contention, the original defendant was never served papers.

Eugenia Kudym of Omaha is asking for $450,000 in damages — the amount her attorney said she could have recovered from her physician after she suffered complications from gastric bypass surgery in 2003.

A judge last year ruled that a server from the sheriff’s department did not properly serve Kudym’s physician. Meanwhile, the statute of limitations for malpractice lapsed, eliminating the physician from possibly having to pay damages. "

For the county to be held liable, Blakeman must prove malpractice occurred and that the county’s error cost Kudym the opportunity to seek damages from the physician.

"The more difficult side is proving the medical malpractice claim," Blakeman said Monday. "The fact the judge has decided (the county) didn’t successfully serve the doctor sits in our favor. In essence, it’s been determined that the county didn’t perform."

It’s not strictly legal malpractice, but rather use of the term as a metaphor.  Federal Magistrate Judge alleges its "almost" legal malpractice when a Federal prosecutor acts to leverage his case. 

"Charges against the lead suspect in a major federal drug case should be dismissed because of trial delays caused by prosecutors, a federal magistrate judge has recommended.

The recommendation, which the U.S. Attorney’s Office disputes, would have to be accepted by U.S. District Judge Rebecca Doherty before the case against George Celestine is dismissed.

Celestine, who could face up to life in prison if convicted, was indicted with three other men in what prosecutors allege was a drug ring they operated for 10 years moving cocaine from Houston to Lafayette.

The men were initially charged in 2001, and the case has stretched on for more than five years and spawned three mistrials.

The most recent was in June, when a judge questioned Assistant U.S. Attorney Todd Clemons’ apparent non-compliance with an order to provide defense attorneys with a list of un-indicted coconspirators — people allegedly involved in the drug ring who were going to testify against Celestine.

Doherty had ordered Clemons to hand over a list of the names in 2003 but he did not comply until the morning of the third trial in June, according to the U.S. Magistrate Judge C. Michael Hill’s report and recommendation for dismissal.

Hill wrote that the failure to hand over the names resulted in mistrials that have violated Celestine’s Sixth Amendment right to a speedy trial.

Hill characterized Clemons’ actions as falling somewhere between “bad faith” and “legal negligence” and appeared to be an attempt to gain a tactical trial advantage at the expense of not following a court order. "

Attorneys performing work for which there can be no liability ?  Immunity from being sued ?  When and why would this be permitted ?

Law guardians, selected by a judge, assigned to a child, supposed to protect the kid’s rights often do a wonderful job.  However, the field of legal malpractice is devoted to the fringe group of poor performers.  Does this social policy of immunity held or hinder the social policy of protecting children?

This article from Kentucky thinks not:

"A recently released report on legal representation for foster children gave Kentucky a "D" for the representation it provides to abused and neglected children, according to officials from Kentucky Youth Advocates.

First Star, a national child advocacy organization based in Washington, issued the report, giving grades to states based on mandates for representation, training requirements, children’s involvement in proceedings and attorney immunity from malpractice.

Kentucky was one of six states to receive a "D" grade based on a 100-point index; 15 states received failing grades. Kentucky received a score of 60 out of 100. Neighboring states received a range of grades. Illinois, Indiana, and Missouri were given failing grades, Ohio received a C, Tennessee got a B, and West Virginia got an A.

The group made recommendations to the Kentucky legislature that included developing training for attorneys, requiring that children keep the same attorney if possible, and giving children the right to legal representation during the appeals process.

The First Star report also recommended that children’s attorneys have caseload and compensation levels that allow for "effective assistance of counsel."

"While Kentucky guarantees attorneys for children in its child welfare system, the issue of quality representation is simply not adequately addressed," said Dr. Terry Brooks, executive director of Kentucky Youth Advocates. "At a broad level, we can do more to support the quality issue through proactive legislation in 2008 and a focused commitment from the legal profession. On a pragmatic basis, issues like increasing fees for court-appointed attorneys are imperative if we really want to tackle the quality issue."

 

Paul et al. v. Smith, Gambrell & Russell, et al., ___S.E.2d___, 2007 WL 474185 (Ga. App. 2007) .  Hinshaw report tells us:

"The Georgia Court of Appeals held that the plaintiffs’ proof of a malpractice claim based on alleged inadequate witness preparation could not prevail because the plaintiffs had not provided sufficient evidence that the outcome of the case giving rise to the malpractice claim would have been more favorable but for the alleged malpractice. With regard to a separate claim, however, the court held that the clients’ review prior to signing of on an allegedly negligently drafted corporate document did not give rise to a defense to a malpractice claim where, as here, the legal significance of the document was not sufficiently clear to the clients"

Malpractice is a professional’s failure to use minimally adequate levels of care, skill or diligence in the performance of the professional’s duties, causing harm to another. In New York, attorney malpractice is defined as a "deviation from good and accepted legal practice, where the client has been proximately damaged by that deviation, but for which, there would have been a different, better or more positive outcome."

The first element of a relationship between the client and the professional was previously discussed. The second element, deviation, is shown by evidence, not necessarily expert, which shows that the acts of the professional fell so below the good and accepted practice of law in New York, that a jury would be permitted to find that the acts below standard.

Expert testimony is necessary when the deviation is subtle; an example could be the failure to supply an affidavit of merits to restore a case marked off calendar, the failure to respond to a CPLR 3216 notice, or failures in response to a motion for summary judgment. Expert testimony is not always necessary however. None is needed to demonstrate the deviation in failing to file within the statute of limitations. Bad outcome do not necessarily equal a deviation. Furthermore, questions of judgment of strategic choice cannot serve as the basis of malpractice. An attorney is permitted the reasonable choice of strategy, if supported by acceptable reasoning. The strategic choice must be reasonable both objectively and subjectively. The difference between strategic choice and mistake are subtle, and create the most difficult cases.

The third element of proximate cause encompasses both the typical analysis that arises in all negligence litigation and the additional element of "but for." The plaintiff must demonstrate not only that the deviation was a substantial cause of the poor outcome, but must additionally show that "but for" the deviation there would have been a different, better or more positive outcome. An example of this potential difficulty arises in an automobile accident. No matter how many deviations are shown, it may be that the maximum insurance for the other driver limits the recovery. If that is true, it will be impossible to show that "but for" the deviation, more than the policy limit was available and could have been recovered from the defendant.