Here is access to a podcast interview with Oliver Hill, a civil rights attorney who was part of the NAACP 50’s/60’s legal push for civil rights, equality, and modernity.

"Civil rights attorney Oliver Hill is well known for the role he played in the landmark U.S. Supreme Court decisions that ended the doctrine of “separate but equal” and other forms of racial discrimination in the United States. One of the cases in which Hill was a key figure was NAACP v. Button. On its face, Button was a challenge to Virginia statutes defining and punishing attorney malpractice. The impact of the 1963 decision was, however, far greater. NAACP v. Button established the principle that active encouragement of public interest litigation is “speech” protected by the First Amendment – a principle that was critical to civil rights litigation."

 

Here is a very interesting article on the question of whether law, statute and judicial gloss all favor lawyer defendants in legal malpractice.  It compares treatment of medical malpractice to legal malpractice and concludes that the real question to ask is:  how will a decision in any given situation affect the legal community?

"This Article answers this question with the following jurisprudential hypothesis. Many legal outcomes can be explained, and future cases predicted, by asking a very simple question: is there a plausible result in this case that will significantly affect the interests of the legal profession (positively or negatively)? If so, the case will always be decided in the way that offers the best result for the legal profession.

The article presents theoretical support from the new institutionalism, cognitive psychology and economic theory. The Article then gathers and analyzes supporting cases from areas as diverse as constitutional law, torts, professional responsibility, employment law, evidence, and criminal procedure.

The questions considered include: why are lawyers the only American profession to be truly and completely self-regulated? Why is it that the attorney-client privilege is the oldest and most jealously protected professional privilege? Why is it that the Supreme Court has repeatedly struck down bans on commercial speech, except for bans on in-person lawyer solicitations and some types of lawyer advertising? Why is it that the Miranda right to consult with an attorney is more protected than the right to remain silent? Why is legal malpractice so much harder to prove than medical malpractice? The Article finishes with some of the ramifications of the lawyer-judge hypothesis, including brief consideration of whether our judiciary should be staffed by lawyer-judges at all. "

Union members often use attorneys who are provided by the Union.  After all, they pay union dues and deserve this free attorney.  However, when things go wrong, they cannot sue. 

"Claim of malpractice by the union’s attorney rejected
Mamorella v Derkasch, App. Div., Fourth Dept., 276 AD2d 152

Lucille Mamorella asked the Appellate Division “to reject as against public policy the well-established rule that an attorney who performs services for and on behalf of a union may not be held liable in malpractice to individual union members where the services at issue constitute a part of the collective bargaining process.”

The Appellate Division declined to do so. The court said, "

Sound policy reasons as well as established precedent compel the conclusion that attorneys who perform services for and on behalf of a union may not be held liable in malpractice to individual grievants where the services the attorneys perform constitute a part of the collective bargaining process.

The court cited Peterson v Kennedy, 771 F2

Hinshaw reports this case:

"Indiana Court of Appeals Holds Excess Insurer May Not Sue Insured’s Attorneys for Legal Malpractice

Querrey & Harrow, Ltd., et al. v. Transcontinental Insurance Company, __N.E.2d__, 2007 WL 505791 (Ind. App. 2007)

The court held that an excess carrier could not bring a legal malpractice action against counsel for the insured and the primary carrier under an equitable subrogation theory as such a theory would be contrary to the Indiana rule of non-assignability of legal malpractice claims. The court also held that on the facts as adduced, the excess carrier could not assert that it had an express or implied attorney-client relationship with counsel for the insured and the primary carrier.

This is really unheard of.  Jail for Disciplinary violations by an attorney. This, from the NYLJ:

"Panel Sentences Lawyer to 10 Days in Jail for Misconduct
Mark Fass
New York Law Journal
April 2, 2007

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An immigration attorney charged with 19 counts of misconduct — including misappropriating payments, commingling funds and lying to clients about the status of their cases — has not only been disbarred by the New York Appellate Division, 1st Department, but also fined $1,000 and sentenced to 10 days in jail.

Kemakolam Comas ignored numerous attempts by the disciplinary committee to communicate with him and failed to submit files as ordered or appear at disciplinary hearings.

"[T]he Referee’s finding of contempt has abundant support in the record insofar as an order of this Court was in effect, respondent had knowledge of the order, he knowingly disobeyed the express and unequivocal directions set forth therein, and he intentionally impaired the rights and remedies of the Court-appointed Receiver concerning this proceeding," the panel said. "Indeed … respondent’s conduct throughout the course of this matter has been nothing less than astounding and his continued, blatant defiance … requires us to impose a severe penalty."

Appel-Hole v. Wyeth-Ayerst Laboratories, 700000/98
Decided: March 27, 2007

Justice Charles Edward Ramos

NEW YORK COUNTY
Supreme Court

Justice Ramos
In motion seq. no. 007, Parker and Waichman LLP (P&W), on its own behalf and on behalf of its clients, moves pursuant to CPLR 2221 for leave to renew or reargue its motion to intervene (previously denied by order dated November 24, 2003). In addition to P&W, proposed intervenors referred to as the "Abramova Plaintiffs," also seek leave to intervene. In the event intervention is granted, P&W and the Abramova Plaintiffs seek disclosure of certain documents referred to as submissions in support of the amended order dated November 7, 2001, which approved the settlement of this action and will then seek to vacate that settlement order.1

In this action, known as the New York Diet Drug Litigation,

New York County Index No. 700000/98, plaintiffs asserted claims of personal injury and loss of consortium allegedly due to the ingestion of "fen-phen" diet drugs.2 Some of those plaintiffs and others are here challenging a settlement approved by our predecessor court (Freedman, J.) by her order dated November 7, 2001, which, inter alia, held that the terms of the settlement were fair and reasonable and conformed with all ethical requirements. In that settlement, defendant, American Home Products ("AHP"), offered a large sum of money3 to settle virtually all claims.4

The ethical issues raised in this case arise out of one of the thorniest areas in tort law – the process to be applied in the settlement of mass tort litigation. Because of the large number of claimants whose cases are settled at one time (in this case over 5,000), mass tort settlements often take the form of collective settlement structures. The alternative to a collective settlement would require the piecemeal analysis of the merits of each claim and individual settlements thereafter, as contemplated when the classic case dominated tort law (one injured plaintiff and one or more allegedly responsible defendants). This would consume the lifetime of many of the claimants themselves when there are thousands of claims to be compromised. As a consequence, counsel and the courts have devised means of settlement expedition, such as the placing of claimants in objective categories of severity of injury, age, gender, economic status, and each claimant’s relationship to the acts of the defendant, and then entering into a mass settlement. Because of the large number of clients, great care must be exercised to insure that each client understands the settlement offer and is treated fairly. Ethical rules guide the actions of counsel in these circumstances.

This mass settlement was further complicated by the need to pay a portion of the attorneys’ fees earned by settling counsel to other attorneys who referred additional clients. Therefore, claimants who were the original clients of the settling attorneys, Napoli Kaiser & Bern ("Napoli Firm"), would generate greater net legal fees for the firm than would clients who were referred to them by other attorneys (e.g. P&W and others).

The record on this motion, which includes a number of previously sealed documents and an affidavit of a former member of the Napoli Firm, has unfortunately raised serious questions regarding the settlement process herein, including claims that:

(1) claimants who were Napoli Firm clients were offered disproportionately larger settlements because the firm unfairly inflated settlement offers for its clients so that the attorneys’ fees earned by the firm would be greater;

(2) unknown to the claimants, their cases were not settled for an amount negotiated for each claimant with AHP, rather their claims were settled based upon the Napoli Firm’s own evaluation of the value of each claim in light of a lump sum offer;5

(3) the Special Master6 appointed by the settling court did not make individual evaluations of the settlement offers in each case as was represented by the Napoli Firm to its clients and to the settling court; and

(4) the ethics opinion submitted in support of the settlement was flawed and based upon less than a full understanding by the expert of the circumstances surrounding the settlement and the applicable law.

Notwithstanding the Napoli Firm’s protestations to the contrary, no court, trial or appellate, has ruled on these issues in a contested hearing. This is explained by the fact that the order of compromise sought to be vacated here, dated November 7, 2001, was submitted to our predecessor court and executed, ex parte.7

The NYLJ reports this case:

Goldston v. Bandwidth Technology Corp., 112098/04
Decided: March 6, 2007 Justice Rolando T. Acosta
NEW YORK COUNTY
Supreme Court

"This matter, tried before the Court without a jury, primarily revolves around whether the retainer agreement executed by plaintiff Alan M. Goldston on behalf of his law firm, Goldston & Schwab ("G&S"), and Jonathan Star, Bandwidth Technology Corp. and Bandwidth Holdings Corp. ("Bandwidth")’s president, board member and shareholder, is enforceable. Pursuant to the retainer agreement, G&S would be compensated with two percent of the company stock. The Court, by order dated September 29, 2006, found, inter alia, triable issues of fact as to whether Star, as president of Bandwidth, a start-up corporation where informal action had been customary, had the authority to enter into the retainer agreement with G&S. The Court also found triable issues of fact as to whether the retainer was enforceable as a "general" retainer or unenforceable as a "non-refundable special retainer," which would entitle plaintiff to be compensated in quantum meruit only. The Court’s Order was affirmed on September 21, 2006. Goldston v. Bandwidth Technology Corp., 32 A.D.3d 747 (1st Dept. 2006). "

Another blog blurb from Scottsdale:

"Attorneys know that deadlines matter, but in this age of electronic filing and 24-hour drop boxes it was just a matter of time before a court would have to address a filing that was, say, a mere six minutes late. That is what the United States Court of Appeals for the 10th Circuit had to deal with and this is what they had to say about it:

Six minutes seems trivial and unlikely to cause prejudice, but if six minutes can be excused, why not six hours or six days? As we discuss, there is a safety valve, but it lies with the district court and requires a timely application, which never materialized in this case. Ignoring established purposes and methods for extensions of time, Plaintiffs argue for different or additional relief. They are out of luck. Like statutes of limitation, statutes of repose, and other such time bars, rights may be irretrievably lost due to delay. "

Legal malpractice requires legal representation, while breach of fiduciary duty can be had by a non-attorney as the Scottsdale Personal Injury Lawyer tell us.

"Many people do not understand the difference between legal malpractice and breach of fiduciary duty.

Legal malpractice arises when an attorney owes someone a duty of care and, by an act or omission, the attorney’s conduct breaches that duty of care and causes that person cognizable harm

Breach of fiduciary duty arises when there is a "special relationship" between an attorney and, typically a client, where trust or control over another’s affairs are vested with an attorney. The major difference between legal malpractice and breach of fiduciary duty lies in the nature and scope of the applicable "duty."

Here is a divorce legal malpractice case from the Divorce Law Journal  which illustrates the "privity" question.

"Issue and Holding:
Whether an attorney owed any duty to an opposing party in a divorce case. The Court held no, the attorney owed no duty under the facts of this case.

Facts:
Baker filed for divorce from her husband, Collins, in 1989. A divorce decree, which referenced their Property Settlement Agreement, was entered in 1990. As part of the Agreement, Collins agreed to pay Baker $500,000. A balloon payment of $300,000 was due by January 1, 2002 and the remaining $200,000 due in ten annual installments of $20,000 continuing through January 1, 2001. The Agreement also provided that if the balloon payment was paid prior to the due date, the other payments would be forgiven. As security for the payments, Baker was given liens on all of Collin’s stock holdings of closely held corporations. Collin was to “execute all necessary documents to effectuate these liens” and “the Certificates shall be held by Ronald Coombs, Attorney.” Coombs represented Collins in the divorce proceedings and in other matters.
Despite the Agreement, Collins never gave Coombs any stock certificates before Collins died in September 1999. Coombs asked Collins for the certificates, but Collins never delivered them. Shortly before Collin’s death, Baker discovered that he had sold his interest in his largest corporation in 1992 without perfecting a lien in his stock holdings and making the agreed upon transfer to Baker. Baker did not know what happened to the other corporations, but none of them were listed as assets of his estate. Baker did not know whether any liens were ever prepared and she could not recall inquiring as to the liens or certificates prior to Collin’s death.
In November 1999, Baker filed a proof of claim against Collin’s estate for monies owed to her under the Agreement. The estate objected. Therefore in December 1999, she filed a complaint against the estate, Collin’s widow, and Coombs. Baker alleged that properties were transferred out of Collin’s name, prior to his death, in a deliberate attempt to prevent the payment of monies he owed to her and to reduce the inheritance of his child. She also alleged that Coombs failed to follow the terms of the Agreement in not holding the stock certificates and allowing Collin’s to sell his businesses without taking action to assure that Baker be paid what she was owed.
Baker was awarded a judgment against the estate. Baker and Coombs then filed cross motions for summary judgment. The trial court concluded that Coombs did not commit professional negligence and that he was not personally liable for the monies Collins owed Baker. The court held that Coombs signed the Agreement only in his capacity as Collin’s counsel, and not as a party to the Agreement. Therefore, only Collins and his estate could be held liable. Baker appealed. "