The Wall Street Journal reports:

"Charter Communications filed a lawsuit Friday against Irell & Manella, accusing the prominent Los Angeles firm of “critical errors” in completing a 1999 cable TV acquisition. The lawsuit alleges, among other claims, legal malpractice and requests damages of $150 million. Here’s the 31-page complaint and a story from Saturday’s L.A. Times.

Charter’s suit, filed in federal court in Santa Ana, Calif., also claims that Irell concealed its mistakes for as many as nine months in 2002 after learning about them. Irell has long represented Charter, a St. Louis-based cable company controlled by Microsoft poohbah Paul Allen. During the entirety of their relationship, Charter has paid Irell $55 million in fees, according to the complaint.

Stephen Higgins of Thompson Coburn in St. Louis filed the lawsuit on behalf of Charter. Also signing on to the complaint: David Freishtat of Freishtat, Mullen & Dubnow in Hunt Valley, Md., and the Enterprise Counsel Group in Irvine, Calif.

“If Charter suffered any loss at all, our firm was not the cause,” Irell partner David Gindler told the LAT. “We are confident that we will prevail as the whole story emerges in court.”

Aquino v Kuczinski, Vila & Assoc., P.C.
2007 NY Slip Op 02801
Decided on April 3, 2007
Appellate Division, First Department

Here is a legal malpractice case arising from defendant’s failure to bring a slip and fall case within the statute of limitations.  Legal Mal case lost becasue attorneys did not produce evidence that plaintiff would have won.  Evidence would have  to show that casino had constructive notice of defective condition causing slip and fall. 

"The issue in this legal malpractice action is whether plaintiff established that "but for" the negligence of defendants in failing to timely commence a personal injury action on her behalf, she would have prevailed in that litigation. On July 4, 2002, plaintiff was walking through the lobby of the Trump Taj Mahal Casino Resort in Atlantic City when she slipped on a substance she identified as vomit. Plaintiff did not see any substance on the floor prior to her fall. She alleges that after she fell, a woman dressed in a blazer and holding a walkie-talkie, whom she believed to be a security guard, came over and told her to get up. When she tried to get up unassisted, she allegedly fell again in the vomit.
In the case at bar, plaintiff failed to introduce any evidence that the casino either created the dangerous condition, or had actual or constructive knowledge of it (see Mercer, 88 NY2d at 956). Plaintiff admitted in both her affidavit and deposition testimony that she has no information regarding how long the vomit was on the lobby floor prior to her accident, thus negating any possibility of proving constructive notice"

"In the final analysis, defendants’ negligence in failing to investigate plaintiff’s case and timely commencing an action does not relieve plaintiff of her burden of proving that she would have prevailed in that litigation but for defendants’ negligence (see Brooks v Lewin, 21 AD3d 731, 734 [2005], lv denied 6 NY3d 713 [2006]; Russo v Feder, Kaszovitz, Isaacson, Weber, Skala & Bass, LLP, 301 AD2d 63, 67 [2002] ["[A] failure to establish proximate cause requires dismissal regardless of whether negligence is established"]). "

"

Shaw, Licitra, Gulotta, Esernio & Schwartz PC v. Hahn, 039977/06
Decided: March 20, 2007

Judge Andrew M. Engel

NASSAU COUNTY
District Court

Judge Engel

The Defendant moves for an order dismissing the Complaint herein, pursuant to CPLR §3211(u)(4), imposing sanctions upon the Plaintiff, pursuant to DR 7-102, DR 7-104, 22 N.Y.C.R.R. §130-1, and 22 N.Y.C.R.R. §130-1.1, prohibiting the Plaintiff from filling my further legal actions against the Defendant and awarding the Defendant damages.

The Defendant seeks dismissal of the present action, alleging that there is a prior action pending for the same relief, between these parties, in the Supreme Court of Nassau County. The Defendant submits a copy of the Summons and Complaint in such action, entitled, Shaw, Licitra, Gulotta, Esernio & Schwartz, P.C. v. Christopher Hahn, hearing Index No. 256/05, (the "Supreme Court Action"). The Plaintiff neither opposes this motion not denies that the action before this court seeks the same relief as is sought in the pending Supreme Court Action. Additionally, a comparison of the two (2) Complaints confirms that the relief sought in this action is contained within the relief sought in the Supreme Court Action.

Accordingly, the Defendants’ motion to dismiss the Complaint, pursuant to CPLR §3211(a)(4), is granted; and, the Complaint is dismissed.

The Defendant seeks the imposition of sanctions against the plaintiff for the commencement of this action, alleging that same was commenced for the sole purpose of harassing the Defendant. As evidence of such harassment, the Defendant not only points to the fact that the Plaintiff, a law firm representing itself, knew there was a prior action pending at the time it commenced this action, but alleges that this is the second time the Plaintiff has commenced the identical action in this court.

The Defendant alleges that in January 2006 the Plaintiff commenced an action against the Defendant, in this court, which was identical to the action presently before the court. A copy of the Summons and Complaint in that action (the "Second Action"), dated January 18,2006, is provided to the court. A comparison of the Summons and Complaint in the Second Action and the Summons and Complaint in the action presently before the court reveals that they are identical. This is not disputed by the Plaintiff.

The Defendant further alleges that following service of the Second Action counsel for the Defendant contacted Plaintiff which agreed to withdraw the Second Action. According to counsel for the Defendant, however, he has never received confirmation that the Second Action was withdrawn. Defendant does not however, allege that the Second Action is actually still pending.

The Official Compilation of Codes, Rules and Regulations of the State of New York, 22 N.Y.C.R.R. §130-1.1, provides, in pertinent part:

(a) The court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court, except where prohibited by law, costs. in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney’s fees, resulting from frivolous conduct, as defined in this Part. In addition to or in lieu of awarding costs, the court, in its discretion may impose financial Sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct as defined in this Part, Which shall he payable as provided in section 130-13 of this Subpart. This Part shall not apply to town or village courts, to proceedings in a small claims part of any court, or to proceedings in the Family Court commenced under article 3, 7 or 8 of the Family Court Act.

(b) The court, as appropriate, may make such award of costs or impose such financial sanctions against either on attorney or a party to the litigation or against both. Where the award or sanction is against an attorney, it may be against the attorney personally or upon a Partnership, firm, corporation, government agency, prosecutor’s office, legal aid society or public defender’s office with which the attorney is associated and that has appeared as attorney of record. The award or sanctions may be imposed upon any attorney appearing in the action or upon a partnership, firm or corporation with which the attorney is associated.

The rest.

Highly respected attorney Thomas Hyland, of Wilson Elser, writes in the NYLJ, in part:

"We write in response to your article, "Judge Orders Firm to Disgorge Fees Over Ethics Breach," (NYLJ, April 5, page 1) which discusses Justice Marcy S. Friedman’s decision in Ulico v. Wilson, Elser, Moskowitz, Edelman & Dicker, granting partial summary judgment against our firm. The article notes that Wilson Elser is an "insurance defense giant." We are proud of our reputation and standing in the insurance defense and greater legal community. We have built this reputation with over 30 years of exceptional service to our clients, and in accordance with the highest ethical standards.

With all due respect, Justice Friedman’s decision is flawed and contrary to the law and facts. As is the right of any litigant aggrieved by the order of a lower court, we intend to appeal. Unfortunately, an erroneous decision may do damage, even if ultimately overturned. While it would be impossible to demonstrate in this forum all of the problems underlying the court’s decision, we feel compelled to note the following:

The court stated that "the facts relevant to [the claim of breach of fiduciary duty] are largely undisputed," yet failed to heed the most important undisputed fact: Wilson Elser did not represent two parties having adverse legal interests. Rather, the claim concerns the propriety of Wilson Elser doing work for an existing client that was potentially adverse to the business interests of Ulico. This is a question of interest to all lawyers. If, for example, a lawyer assists a restaurant in obtaining a liquor license, does he violate his ethical obligations to that client if he also helps another restaurant on the same street obtain a license? A "competitor" is simply and obviously not an "adversary."

Here’s the rest of the letter.

The NYLJ reports "An attorney who violates the state’s official Codes, Rules and Regulations (NYCRR) by failing to obtain a written retainer agreement or letter of engagement from a client in a nonmatrimonial case can still recover fees, an appeals court held last week in a ruling of first impression.

An unanimous panel of the Appellate Division, Second Department, said its interpretation of the rule, 22 NYCRR 1215.1, would not render it "impotent and unenforceable," as the appellant in Seth Rubenstein, P.C. v. Ganea, 2005-07813, had alleged.

Attorneys who fail to heed Rule 1215.1 place themselves at a marked disadvantage, as the recovery of fees becomes dependent upon factors that attorneys do not necessarily control, such as meeting the burden of proving the terms of the retainer and establishing that the terms were fair, understood, and agreed upon," Justice Mark C. Dillon (See Profile) wrote for the court. "There is never any guarantee that an arbitrator or court will find this burden met or that the fact-finder will determine the reasonable value of services under quantum meruit to be equal to the compensation that would have been earned under a clearly written retainer agreement or letter of engagement."

Since 2002, attorneys have been required to obtain retainer agreements or letters of engagement from all non-matrimonial clients under 22 NYCRR 1215.1, a rule that was created by the four Appellate Divisions (matrimonial cases are governed by a stricter rule, 22 NYCRR 1400.3).

The Second Department examined the implications of the 2002 rule after numerous trial courts reached different conclusions ."

From Law.com 

"Beginning in the fall of 2004, partners in Dallas-based Jenkens & Gilchrist who left the firm also left behind their capital contributions, which in some cases totaled hundreds of thousands of dollars, due to the firm’s "contingent liabilities. The former Jenkens partners who left their cash behind may never see a penny of it, or they may recoup some of it, depending on what’s left over after the firm covers all of its financial obligations in the wake of its closing on March 31.

Gilliam, a commercial litigator, says his primary job is to address litigation against the firm and to try to resolve 15 pending suits, which primarily are legal malpractice cases filed in state courts in Texas, New Jersey and California. He says the firm has "large exposure" in a couple of the suits, but "in those cases we feel like we have viable defenses."

"

Medical malpractice trial lost with $217 Million verdict, which could have been settled within policy limits for $ 4 million leads to a legal malpractice by doctor versus attorney. This article tells us:

"Among the claims against their former lawyers was the fact their lawyers turned down settlement offers of $1,000,000.00 for one doctor and $3,000,000.00 for the other doctor. The doctors claim that the proposed settlements were never adequately explained to them. The doctors say that their attorneys failed to properly advise them, fraudulently concealed information, and failed to respond to settlement demands.

The doctors’ new lawyers who are suing their former malpractice defense lawyers state that the case should have never gone to trial, that it should have been settled, and claim that the doctors were "hung out to dry."

The malpractice case against the doctors seems clear. Their patient went to a hospital emergency room complaining of nausea, headache, dizziness, and double vision. The patient was essentially sent home five hours later with a painkiller prescription and a diagnosis of sinusitis. "

lthough the defendant doctors could not diagnose the condition, the patient in reality was having a stroke. He returned to the hospital with more severe symptoms the next morning, underwent surgery hours later to relieve brain swelling, and ended up in a coma for three months. When he awoke from the coma, he was permanently disabled. The patient, who was 50-years-old at the time was awarded $117,000,000.00 for economic damages, pain, and suffering. The doctors were then ordered to pay $100.1 million dollars in punitive damages. This was the largest jury verdict in Florida ever.

In the doctors’ suit against their former malpractice lawyers, they claim that the lawyers who were hired by their malpractice insurance company were protecting the interest of the insurance company and not theirs. One of the doctors said he was pressured by the lawyers to say that he always gave a patient a physical exam and a patient history even if such an examination was previously performed by a physician’s assistant. This doctor said he did not perform physicals on patients who had already been seen by a physician’s assistant and that he did not remember personally examining the patient who sued him for malpractice. In spite of being informed by the doctors of the truth, the insurance company’s lawyers continued denying that anyone except the doctor was involved in the patient’s care and treatment

This article from the venerable Madison County Record reports that the Lakin Law Firm, which is a defendant in a big legal malpractice case arising from structured settlement loses, may now face loss of coverage.

"Lakin Law Firm founder Tom Lakin has sworn in a civil suit that he saw no liability on his part for the disappearance of money from structured settlements of his clients.

Clients of Lakin and other firms lost about $50 million eight years ago when the manager of their settlement funds, James Gibson, stole the funds.

Gibson was arrested in South America and went to prison in America.

Attorneys who had advised clients to trust him faced possible malpractice charges. Their insurers reimbursed the clients.

Lakin’s malpractice insurers, however, have not paid. "

Since 2002 the Illinois State Bar Association Mutual Insurance Company has sought a Sangamon County circuit court order rescinding a malpractice policy it issued to the Lakin firm in 2001.

ISBA Mutual argues that it would not have issued the policy if the firm had not misrepresented facts in its policy application.

According to ISBA Mutual, the firm stated it did not know of claims or potential claims against it when the firm knew about such claims.

The firm switched its malpractice to ISBA Mutual from American National Insurance, later known as Great American Insurance.

In 2002 ISBA Mutual filed suit in Sangamon County for declaratory judgment against the firm.

Robert Chemers of Chicago wrote that before ISBA Mutual issued the policy, the firm advised clients of potential claims from Gibson’s theft.