New York Lawyer [subscription] relates this story:

"Local Lawyer’s Conniption Fit at Getting Sued Gets Him Sanctioned

New York Lawyer
May 4, 2007

By Henry Gottlieb
New Jersey Law Journal

When a lawyer is served with a malpractice suit, throwing the complaint on the floor, ejecting the process server for trespassing and yelling "call 911" are possible responses.

But they’re wrong, a Mercer County, N.J., judge says in a $403 sanction order against Robert Conroy, one of the state’s leading health care lawyers.

Conroy was in his Bridgewater office on March 20, when Guaranteed Subpoena Service Inc. sent a representative to serve a malpractice suit by a doctor Conroy had represented in a complicated transaction.

But Guaranteed reported back to the plaintiff’s lawyer: "Not served! Entity was evading service. Threw service at server, stating he was trespassing and would be arrested if he didn’t leave."

Conroy says that’s not what happened. He says the firm accepted service at the reception desk but the server barged his way into private areas of the office, like a dangerous intruder.

Even so, Superior Court Judge Paul Koenig Jr. found Conroy at fault and called the conduct, "ill-advised, unlawyerlike, and in my opinion, even outrageous."

"He chose to intimidate the process server, someone who works, you know, in close connection with the attorneys to serve court process and court papers," the judge said in an April 11 ruling. "Any attorney should not take such a position, however unhappy he is with the circumstances."

"He’s a licensed attorney," the judge continued. "He has an obligation to act professionally. Throwing documents — throwing court documents doesn’t sound professional."

Reported today from Bankruptcy Court:

In re: Ernst, 04-12291
Decided: April 27, 2007

"UNDER A retainer agreement allowing interest on unpaid fees, the lawyer providing legal services to the debtor brought a state action to collect $72,274 in unpaid legal fees from the debtor and his wife. Shortly after entry of an award in the lawyer’s favor, the debtors sought Chapter 13 bankruptcy protection. In disallowing the attorney-creditor’s claim for fees incurred in collecting on the debtors’ bill, the bankruptcy court noted that the Appellate Division, First Department in Ween v. Dow held that fees associated with the collection of unpaid legal fees could not be recovered by an attorney unless the applicable retainer agreement also gave the client the right to recover attorney fees. In Travelers Casualty & Surety Co. of America v. Pacific Gas & Electric Co. the U.S. Supreme Court emphasized the requirement that bankruptcy courts consult state law in determining the validity of most claims. In rejecting the lawyer’s claim, the bankruptcy court noted that the Ween court emphatically declared that a retainer provision identical that used by the lawyer was unenforceable.

"This decision granting summary judgment to the Debtors on their claim objection and disallowing a claim by an attorney-creditor for fees incurred in collecting a bill owed by his former client relies heavily on two recent case law developments – the first in the Appellate Division of the New York State Supreme Court holding that claims such as this one are not enforceable and the second decided last month by the United States Supreme Court emphasizing the requirement that bankruptcy courts consult state law in determining the validity of most claims. Both decisions involve the same underlying subject matter – the contractual right of an attorney to recover counsel fees from a third party. When considered together, these cases compel granting Debtors’ Motion for Summary Judgment and disallowing the attorney-creditor’s claim. "

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. "

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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."