What are the elements of Professional Malpractice?

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.

      It’s not entirely clear how the relationship between Attorney Fishkin and Marlow arose with Attorney Taras but it appears that Taras referred cases to Fishkin, or Fishkin was hired by Taras to work on the cases. many settled, but Fishkin and Marlow were not paid. They sued Taras for legal fees and lost on the basis that they did not file retainer statements with the Office of Court Administration within 15 days. This rule applies in the 1st Department for contingent personal injury cases. See Justice Edmead’s decision today.

"DEFENDANT ATTORNEY moved for summary judgment in this fee dispute with plaintiff attorneys, who claimed they were hired as outside counsel by defendants under an oral agreement to render legal services on personal injury cases in which defendants were retained by a client on a contingency fee basis. Defendants argued plaintiffs failed to file retainer statements in all nine of their claims under 22 New York Codes Rules and Regulations §603.7(a)(3), precluding them from recovering any legal fees. Plaintiffs argued the filing of a retainer statement was not a condition precedent to receiving a legal fee. The court stated an attorney who was retained by another attorney on a contingency fee basis in a personal injury action must file a retainer statement with the Office of Court Administration within 15 days of being retained. Thus, it stated as retainer statements were not timely filed in three matters and in the absence of proof retainer statements were timely filed in the remaining six claims, those actions could not be maintained, granting defendants’ motion .

Here is a US District Court decision in the Offshore Express Inc. v. Milbank Tweed Hadley & McCloy LLP, 03 Civ. 4260  case, decided: March 13, 2007 , District Judge Paul A. Crotty  in the U.S. DISTRICT COURT,SOUTHERN DISTRICT OF NEW YORK .

At issue, in the statute of limitations case was whether "Milbank’s representation in the reorganization and arbitration was one continuous representation in regard to a specific legal matter, or two representations covering separate and distinct matters. If the former, this action is timely; if the latter, the motion for partial summary judgment must be granted."

The short answer: "Conclusion: Defendant’s motion is GRANTED. Plaintiff’s claim for malpractice arising out of the reorganization representation is dismissed. The Clerk of the Court is directed to close out this motion. "

Read the case for an excellent discussion of continuous representation.

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.