A collge student, who has already started a case for sexual harassment, has now widened the net to bring in an athletic director at the school on a theory of legal malpractice.  The Story.

"Kelly May, the UL graduate who sued her political science professor for sexual harassment last year, has added David Walker, UL’s interim athletic director, to her lawsuit.
In the amendment to the suit, May also accuses Walker, an attorney, of legal malpractice. May states that she met with university officials and Walker in a meeting in the last week of September to discuss her complaints against political science professor Donn Kurtz. May alleges that university officials informed her that Walker acts as counsel for students in legal matters."

Know anything about civil forfeiture?  Up on the latest quirks?  If not, don’t start a case without doing research!  This case tells us:

"The plaintiffs alleged in their complaint, inter alia, that the defendant was negligent for failing to become familiar with the forfeiture law and agreeing to the settlement terms without attempting to negotiate, and that his negligence was a proximate cause of their damages. While a legal malpractice action is unlikely to succeed where an attorney erred because an issue of law was unsettled or debatable (see Darby & Darby v VSI Intl., 95 NY2d 308, 315), an attorney may be liable for a failure to conduct adequate legal research (see McCoy v Tepper, 261 AD2d 592; Gardner v Jacon, 148 AD2d 794).

The defendant’s contention regarding damages is also without merit. The plaintiffs are not obligated to show, at this stage of the pleadings, that they actually sustained damages. They need only plead allegations from which damages attributable to the defendant’s malpractice might be reasonably inferred (see InKine Pharm. Co. v Coleman, 305 AD2d 151). In any event, the plaintiffs have pleaded actual damages.

The plaintiffs correctly contend that they were not required to submit an "affidavit" in opposition to the defendant’s motion to dismiss pursuant to CPLR 3211(a)(7). CPLR 3211 allows a plaintiff to submit affidavits, but it does not obligate the plaintiff to do so on penalty of dismissal, as under CPLR 3212. If a plaintiff chooses to stand on the pleading alone, confident that the allegations therein are sufficient to state all of the necessary elements of a cognizable cause of action, he or she is at liberty to do so and, unless the motion is converted by the court to one for summary judgment, the plaintiff will not be penalized for not making an evidentiary showing in support of the complaint (see Rich v Lefkovits, 56 NY2d 276, 282; Rovello v Orofino Realty Co., 40 NY2d 633, 635). Furthermore, a verified pleading may be utilized as an affidavit whenever the latter is required (see CPLR 105[u]).

The plaintiffs also correctly contend that the court excessively credited the defendant’s affidavit. The defendant’s affidavit did not conclusively establish that the plaintiffs had no cause of action. It merely disputed some of the factual allegations of the complaint (see Skillgames, LLC v Brody, 1 AD3d 247, 251).

Finally, the plaintiffs correctly contend that the court improperly used a summary judgment standard in deciding the motion to dismiss. By focusing on the proof in the plaintiffs’ submission in opposition, the court effectively treated the motion as one for summary judgment, which requires disclosure of all of the evidence on the disputed issues. The mere fact that a plaintiff cannot withstand a motion for summary judgment under CPLR 3212 is not controlling on a motion under CPLR 3211 (see Rovello v Orofino Realty Co., supra). If a court decides to treat a CPLR 3211 motion as a motion for summary judgment, it must first provide adequate notice to the parties, which it did not do here (id.). "

Plaintiff in a legal malpractice case submitted errata sheet in opposition to motion for summary judgment.  The deposition testimony supported defendant’s position on the motion, and changes in the errata sheet were necessary to oppose the motion.  In this case.

"Plaintiff’s errata sheets should have been struck
since plaintiff failed to timely submit a statement of the reasons for the numerous changes in his deposition testimony indicated thereon (see CPLR 3116[a]; Schachat v Bell Atl. Corp., 282 AD2d 329 [2001]; Rodriguez v Jones, 227 AD2d 220 [1996]).

Defendants’ motions for summary judgment in this action to recover for alleged legal malpractice should have been granted since plaintiff’s unrevised testimony and the affidavits submitted in opposition to the motions were insufficient to raise an issue of fact as to notice of [*2]the alleged defective condition, a "missing" ladder rung, and whether, but for the alleged malpractice, plaintiffs would have prevailed in the underlying action in which they were represented by defendants "

Legal malpractice cases seem to enjoy a higher level of scrutiny in motions to dismiss than do other species of law suit.  Perhaps this is just because it is lawyers examining the behavior of other lawyers.  Here is a case fron NJ on legal malpractice and a conflict of interest.

"Plaintiff, Frank Devone, appeals from a summary judgment dismissing his legal malpractice claim against defendant, Dominic S. Favieri, Jr., Esquire. The motion judge concluded that the records contained no evidence to establish proximate cause between defendant’s allegedly improper conduct and the loss claimed by plaintiff. We agree with the judge’s analysis and affirm. Defendant has filed a protective cross-appeal from the refusal by the motion judge to further determine that plaintiff’s claim was precluded by principles of collateral estoppel and the entire controversy doctrine. In light of our disposition of the appeal, we will not address the arguments raised by defendant in his cross-appeal.

Material factual premises underlying Dugan’s opinion are not supported by the record. Lack negotiated with the buyer on Marini’s behalf to obtain the consulting agreement for Marini. There is nothing in the record to support the allegation that defendant participated in those negotiations. And, by letter of February 20, 1998, the buyer’s attorney forwarded to Reilly a draft agreement of sale embodying the terms of the consent order in an expanded form. That agreement, although it was never signed, is significant because it contains a disclosure of the consulting agreement between the buyer and Marini. Indeed, that portion of the agreement is marked by a handwritten notation, apparently inserted by Reilly, following Marini’s name, stating "and/or Frank Devone," indicating an effort by Reilly to obtain from the buyer’s attorney a comparable or shared agreement to include his client. Further, Reilly’s billing records and plaintiff’s deposition make clear that Reilly reviewed the draft agreement with plaintiff.

Therefore, plaintiff and his personal attorney were on notice of Marini’s consulting agreement with the buyer before the transaction was consummated. Plaintiff produced no evidence to suggest that the buyer would have had any interest in hiring him as a consultant. He produced no certification from the buyer and did not depose the buyer. Nor did he produce any evidence, or conduct any discovery that might yield such evidence, to suggest that the $150,000 was actually additional purchase money and that Marini did not indeed provide consulting services for the buyer. "

"A former Española judge who spent nearly three years in prison for crimes the state Supreme Court determined he shouldn’t have been convicted of has filed a legal malpractice lawsuit against two of his former lawyers.
Charles Maestas is accusing Santa Fe attorneys Stephen Aarons and David Henderson of negligence in their handling of his case for failing to notice that the statute his convictions were based on didn’t apply to judges. The lawsuit was filed Feb. 20 and is pending in state district court in Tierra Amarilla.
Aarons was the lead attorney representing Maestas during his 2003 trial on rape and bribery charges while Henderson represented Maestas during the appeal.
The suit names Aarons Law Firm PC and Downing and Henderson PC as defendants. Maestas is represented by Tony Scarborough, who couldn’t be reached for comment late Thursday.
A jury convicted Maestas in June 2003 on five counts of rape and five counts of accepting a bribe in connection with allegations that he used his power as a judge to compel a woman, Suzette Salazar, to give him sexual favors in exchange for a promise of lenience in her traffic case. The jury acquitted him of a number of other charges. In August 2003, he was sentenced to three years in prison.
But the state Supreme Court overturned those convictions on Dec. 13, 2006, finding that Maestas had erroneously been prosecuted under a state anti-bribery statute that expressly excludes judges. By the time the high court’s decision was handed down, Maestas had finished serving his prison term.
The question of whether Maestas had been convicted of a law that didn’t apply to judges was initially raised by an attorney in the state Attorney General’s Office. But while the Attorney General’s Office conceded that the wording of the law made judges exempt, it argued that the Legislature made a mistake and asked the court to affirm the convictions.
Henderson, who argued passionately before the Supreme Court that Maestas’ convictions should be overturned because he was convicted of a law that didn’t exist, said he was disappointed and upset that he was being sued, given that he won the appeal for Maestas. Henderson had originally based Maestas’ appeal on an argument that a faulty jury instruction had been given during the trial.

 The Article

Anthony Davis writes in the NYLJ:

"In 2001, the New York State Bar Association Committee on Professional Ethics, in Formal Opinion 749 (NYSBA 749) echoed Secretary Stimson’s view in saying that "lawyers may not ethically use available technology to surreptitiously examine and trace e-mail and other electronic documents."

In this article we will consider NYSBA 749 in the light of two more recent opinions, from the ABA and from Maryland, and will show how they arrive at the diametrically opposite conclusion, and why their reasoning is preferable.

What is metadata? ABA Formal Opinion 06-442 (ABA 6-442) simply defines it as information which is "embedded" in electronic documents. More helpfully, the Maryland State Bar Association Committee on Ethics, in Formal Opinion 2007-09 (10/19/06) (Maryland 2007-09), defines metadata as: "information within programs (e.g., Microsoft Word/Excel/Power Point, Corel Word Perfect/Quattro Pro, Adobe Acrobat, etc.) which is not readily visible but which is accessible and which may include data such as author, dates of creation/printing, number of revisions, content of those revisions/previous versions, editing time, etc."

"Hopefully, the New York State Bar Association Ethics Committee will reconsider NYSBA 749 – in the light of NYSBA 782 as well as the ABA and Maryland opinions – and recognize that if gentlemen are careless enough to send a document containing metadata, then they have only themselves to blame if the recipients read it. In the interim, readers are reminded that ethics opinions from bar associations are just that – opinions – and do not represent binding expressions of law. "

The Legal Malpractice News blog reports:

"Upon entering a legal malpractice case to a trial court in Kentucky, the court stated to the jury:

Provided, however, a lawyer cannot be held responsible for errors in judgment or for advising a course of action even if that course of action ultimately proves to be unsuccessful.
The jury ultimately voted in favor of the attorney. However, recently, the kentucky Supreme Court reversed this particular verdict, blaming the trial court for leading the jury to believe that an attorney may not be held liable for errors in judgement. This seems to be the infamous "judgemental immunity" defense. "

From the Legal Malpractice Insurance blog:

"On Monday, February 20, 2006, the Illinois Supreme Court submitted an opinion in a legal malpractice case, which has now changed the way the doctrine of void ab initio will be used in Illinois. For 92 years the Illinois supreme court have used the U.S. Supreme Court case Norton v. Shelby County as an example to follow in ruling a void ab initio scenario"   Check their site for the case.