Here is a Kentucky case in which guardian of infants or "next friend" of infant hires attorney for an automobile accident case.  Infant later sues attorneys for legal malpractice.  Question:  when hired by guardian or "next friend" can infant later sue, or must that guardian sue?  Answer in Kentucky is that infant does have standing to sue.

STEWART V. BRANHAM 
2006-CA-000322
PUBLISHED: REVERSING AND REMANDING; TAYLOR
DATE RENDERED: 3/9/2007

Solo NY attorney represented California client in Oregon courts is permitted to sue for legal fees here in NY.

Fischbarg v Doucet ,2007 NY Slip Op 01964 ,Decided on March 13, 2007 ,Appellate Division, First Department .

"With the evolution of technology, it is clear that physical presence alone should not determine whether one has purposely availed itself of a state’s rights and benefits for jurisdictional purposes. One court has recognized this fact, stating "lawyers and other professionals today transact business with their pens, their fax machines and their conference calls not with their feet" (see Bank Brussels Lambert v Fiddler Gonzalez & Rodriguez, 171 F3d 779, 787 [2d Cir 1999]). Indeed, the notion that a party need not have a physical presence in New York to be subject to CPLR 302(a)(1) jurisdiction is long recognized. In 1970, our Court of Appeals held that "one need not be physically present to be subject to the jurisdiction of our courts under CPLR 302 for, particularly in this day of instant long-range communications, one can engage in extensive purposeful activity here without actually setting foot in the State" (Parke-Bernet Galleries, Inc. v Franklyn, 26 NY2d 13, 17 [1970]). Thus, it is not determinative that defendants were not physically present in New York (see Pilates, Inc. v Pilates Inst., Inc., 891 F Supp 175, 179 [SD NY 1995] ["defendant need not actually enter New York to be viewed as transacting business in the state [under CPLR 302[a][1]"]). "

Nor does the fact that the litigation took place in Oregon, not New York, preclude plaintiff from suing his clients in New York for his fees (cf. Colucci & Umans v 1 Mark, Inc., 224 AD2d 243 [1996] [CPLR 302(a)(1) jurisdiction based upon out of state defendant’s retention of New York lawyer to handle litigation in New York court]; Otterbourg, Steindler, Houston & Rosen v Shreve City Apts., 147 AD2d 327 [1989] [same]; Elman v Belson, 32 AD2d 422 [1969] [same]); see generally Liberatore v Calvino, 293 AD2d 217 [2002] [Rhode Island attorney subject to New York’s long arm statute based upon his actions preceding the filing of an untimely complaint in a New York court]).

Hinshaw reports this case in which the court sanctioned four attorneys for conduct at a deposition, including one who instructed his client not to answer outrageous questions but who neither claimed a protected privilege nor applied for a protective order under FRCP 30(d).

"The court described this case as a “grudge match.” Id. at *1. Harvey C. Welch represented Erik Redwood in a criminal prosecution for battery. Mr. Redwood was convicted, and blamed Mr. Welch for ineffective assistance of counsel. In October 1998 Mr. Redwood, a white man, called Mr. Welch, a black man, a “shoe shine boy,” which led to a physical confrontation. A grand jury returned an indictment for a hate crime against Mr. Redwood. In addition, Mr. Redwood filed a battery claim in state court and Mr. Welch filed a defamation counterclaim. In the civil action, Mr. Redwood was represented by his wife, attorney Jude Redwood, and Mr. Welch was represented by Marvin Gerstein. The civil case ultimately settled and the criminal prosecution was dismissed.

The Redwoods then filed this federal civil rights action against the prosecutor in the hate crime case, Elizabeth Dobson, as well as Mr. Welch, Mr. Gerstein, the City of Urbana and one of its police officers. The Redwoods alleged the defendants’ actions violated their first amendment rights by discriminating against Mr. Redwood’s religion.

The deposition became heated when Mr. Danner began questioning Mr. Gerstein about his past criminal record, his prior problems with the state bar, his mental health, whether he had engaged in homosexual conduct and whether he was involved in any type of “homosexual clique” with other defendants in this action. Id. at *4. Richard Klaus, representing Ms. Dobson, stated his opinion that Mr. Danner had committed a misdemeanor under Illinois law by asking questions about Mr. Gerstein’s mental health. Mr. Webber stated that the questioning violated Rule 30 because is was intended to harass, and instructed Mr. Gerstein not to answer. Mr. Webber did not, however, follow the procedure outlined in FRCP 30 by claiming a protected privilege or making a motion for a protective order.

Things got even worse after a break was taken and Mr. Gerstein was questioned about whether he had consulted with his attorney during the break. Mr. Gerstein began playing “word games” and claimed “amnesia” regarding what discussions he may have had or what the word “consult” meant. Although the court did not review a videotape of the deposition, the Redwoods claimed that Mr. Gerstein gave Mr. Danner “the finger” during the deposition as well. Id. at *4.

The court found Mr. Danner’s conduct at the deposition shameful. Id. at *5. The court, however, did not limit its criticism to Mr. Danner. “Mutual enmity does not excuse the breakdown of decorum that occurred at Mr. Gerstein’s deposition. Instead of declaring a pox on both houses, the district court should have used its authority to maintain standards of civility and professionalism. It is precisely when animosity runs high that playing by the rules is vital. Rules of legal procedure are designed to defuse, or at least channel into set forms, the heated feelings that accompany much litigation. Because depositions take place in law offices rather than courtrooms, adherence to professional standards is vital, for the judge has no direct means of control.” Id. at *5. "

We the People USA, a franchise of do-it-yourself legal centers that hope to do to the legal profession what H&R Block did to tax accountants.  They sell legal forms, and in some instances have gone too far in "helping" clients. One customer wanted to start a malpractice case.

Morgese went to the store for help filing a malpractice suit. After writing his complaint, the manager, Julie Marie Jefferson, told him it was insufficient. So she rewrote it on her computer, accidentally giving the wrong address for the insurance company.

After the complaint was filed in court, a judge found it defective because of the incorrect address and threw out the complaint.

"I would have been better off going to a lawyer and doing it right," Morgese said. "It cost me more to fix the problem than I had coming to me."

* * *

Agency’s Former Counsel Held Liable in Contracting Scheme //  C.A. Says Conflict-of-Interest Statute Allows Recovery of Payments to Independent Contractor 

KENNETH OFGANG, of Metro News-Enterprise reports:

"The former counsel for the California Housing Finance Agency and a company in which he held an undisclosed interest must return payments made to the business under a contract with the agency, the Fourth District Court of Appeal ruled yesterday.

Div. Three affirmed a multimillion dollar judgment against ex-lawyer Robert L. McWhirk of Laguna Beach, former CHFA insurance director John Schienle, and Hanover/California Management and Accounting Center, Inc. An Orange Superior Court jury sided with the CHFA, which said the men schemed to enrich themselves at public expense by creating a company that did business with the agency while they were undisclosed principals. Following a seven-week trial, the jury found that all defendants committed fraud and negligent misrepresentation, that McWhirk and Schienle were liable for breach of fiduciary duty and conflict of interest, and that McWhirk had committed legal malpractice and breached his contract to serve as outside counsel. Jurors rejected Hanover California’s cross-complaint for breach of its contract with the agency.

Plaintiff wanted to buy a building, convert to a condo/coop and evict or buy out tenants.  It’s a big time business in NY.  Problem?  The Unincorporated Business Law Professor’s Blog reports this case: Yassky v. Meltzer, Lippe, Goldstein & Schlissel, P.C., 36 A.D.3d 420 (N.Y.A.D. 1 Dept. 2007).

"Plaintiff had retained the law firm to help him purchase certain real properties and to resell them. Plaintiff contended that Meltzer committed legal practice by failing to publish notice of the LLC’s formation, which resulted in an eviction proceeding brought by the LLC which was initially unsuccessful. Defendant Meltzer then filed a third-party complaint against another law firm that the LLC had hired to assist with tenant buyouts and eviction proceedings. The court concluded that it was Meltzer’s responsibility to publish the notice of the LLC’s formation and Meltzer was negligent in failing to do so. "

Here is a case reported by the Abstract Appeal Blog. Plaintiff’s toxic tort case was lost through negligence.  His legal malpractice case was bifurcated, and he won the liability phase.  However, the jury detemined that there was no proximate case.  Ergo, no proximate cause, no damages. 

Hinshaw reports on a two step process which allows a law firm to require binding arbitration on legal fees in California.

"Under this decision, a California law firm’s insistence on binding arbitration is a two-step process. First, the firm must insert such a provision in its retainer agreement. Second, the firm must offer the client a right to non-binding arbitration under the MFAA. If the client fails to exercise this right, however, the firm may rely upon the agreement as written.