Hinshaw reports this case:

Client may not recover fees paid to criminal defense attorney whose representation was ineffective in part 

"The Vermont Supreme Court has held that a client is not entitled to assert a breach of contract action against a criminal defense attorney to recover fees paid for ineffective representation where at least some of the representation involved the provision of valuable services. Plaintiff, a client who was charged with federal crimes, retained defendant attorney to defend the charges. The attorney performed a substantial amount of work investigating the case and preparing for trial. The client was found guilty on all six charges and sentenced to prison. The conviction was upheld on appeal but the case was remanded for recalculation of the sentence. An increased sentence resulted, and it was affirmed on appeal. The client sought postconviction relief based on ineffective assistance of counsel due to the attorney’s failure to object to a jury charge. A federal district court dismissed the complaint, but a circuit court ruled that the jury charge on a reasonable doubt was improper. The circuit court remanded for a determination of whether counsel’s representation was ineffective.

On remand, the district court found that counsel’s representation was ineffective due to his failure to object to the improper jury instruction on reasonable doubt. A new trial was granted. The client pled guilty to one count and was sentenced to the 87 months he had already served.

The client then sued the attorney alleging claims for both legal malpractice and breach of contract. The contract claim sought to obtain return of the fees plaintiff had paid to defendant for preparing the case for trial and for trying the case. The trial court granted summary judgment for the attorney on the malpractice claim, ruling that a client must establish his actual innocence of the criminal charges to be entitled to recover for malpractice. The trial court denied summary judgment on the contract claim and found for the attorney on it. The trial court held that the client could not recover the attorneys’ fees he paid the attorney under a breach of contract theory because such a claim was in reality a malpractice claim and so required the client to establish his actual innocence. As the client could not establish his actual innocence because he pled guilty to one of the charges, the trial court ruled he could not establish proximate cause. The Supreme Court affirmed but for different reasons."

From the South Carolina Appellate Blog:

Friday, February 23, 2007
South Carolina Court of Appeals holds that attorney owes a duty to third parties to distribute settlement proceeds
In Moore v. Weinberg, after the settlement of litigation and receipt of proceeds, attorney distributed all the money and in the process overlooked an Assignment, which he drafted, of a portion of the proceeds to Wheeler. Wheeler sued the attorney for negligence. The trial court granted summary judgment in favor of the attorney and the Court of appeals reversed. According to the panel, the attorney drafted the Assignment and did not dispute that he had notice of it. The Rules of Professional Conduct and law from other jurisdictions established that the attorney owed a duty to Moore to disburse the funds. we conclude Weinberg owed Moore a duty to disburse the assigned funds to Moore.

Web CPAblog reports:

"Boston Firm Faces Malpractice Suit

Boston (Feb. 23, 2007) – Vitale Caturano & Co. is facing a malpractice lawsuit for allegedly failing to properly investigate a number of red flags that could have tipped a prominent New England family off to the looting of some $57 million from its trust funds. Advertisement

The Ayer Family Trusts holds several hundred million dollars for about 100 descendents of industrialist Frederick Ayer. Those trusts are managed under the Tenens Corp. (which does business as Essex Street Associates), and had been largely overseen by the corporation’s former chief operating office, and an employee of more than 30 years, John Doorly.

According to other court documents, Doorly engaged in the “systematic looting” of $57 million from the trust funds, much of it through the use of duplicate accounts — spending freely on his wife, son, his mistresses; investing in shopping malls, car dealerships and sports marketing companies; and expensing amenities such as planes, limos, vacation homes and exotic golf trips.

Doorly was fired from the position in March 2006, but the Ayer family’s suit against Vitale Caturano claims that the Boston-based firm should have acted more quickly to investigate Doorly’s secrecy regarding a number of trusts, and notes that the funds suffered losses of more than $10 million during Vitale Caturano’s time as auditor.

According to the Boston Herald, in deposition filings Doorly has acknowledged that while he transferred Tenens funds to various accounts, they were merely loans that he intended to repay. "

A big change in the False imprisonment law, coupled with an analysis of 42 USC 1983 changes comes from the "lawyer Dude’s" blog.

"This is a hopefully going to be a short post. Last week (in fact the day after the court heard argument in Rita/Claiborne) it announced its decision in Wallace v. Kato. The issue effects both criminal lawyers and civil rights attorneys (or for those of us at The Law Offices of Anthony J. Colleluori & Associates, PLLC. both sides of our brains.)
Up until now it was always the procedure, that after a person was arrested (and imprisoned) he would be able to sue the government, whether or not he filed a notice of claim against the county, by alleging the same behavior(e.g. false arrest and unlawful imprisonment) through the use of a 42 USC 1983 suit. In the US District Courts in NY, The statute of limitations was always thought to be within three years of the end of his incarceration and his prosecution whichever came later. "

"NO MORE

The court in its decision in Wallace has changed a number of things dealing not only with filing but also with pleading the case.

1. False arrest is a subset of unlawful imprisonment.
2. The statute of limitations for a 42 USC 1983 claim arising from an unlawful imprisonment claim is as long as the time one has to file a personal injury suit in the state where the action accrues. In New York State, that means 3 years.
3. The date of accrual begins on the date of arrest and the tort ends at the time of arraignment.
4. All the damages that occur after arraignment are properly recompensed in a Malicious Prosecution based suit not by a false arrest/unlawful imprisonment cause of action.
5. While a Malicious Prosecution based suit’s statues of limitations may be tolled by the case of Heck v. Humprey, 512 US 477(1994), actions for false arrest and unlawful imprisonment are not so tolled.

Now here’s the thing, we all know that it is easier to win a false arrest/unlawful imprisonment case, because it does not require that we win the underlying criminal action. We can accept a dismissal that is favorable on the issue of the arrest not the prosecution (ACOD’s [ACD’s for NYC Guys]; Dismissal in the interest of Justice, speedy trial dismissals). Malicious Prosecution based causes of action, requires a favorable termination of the prosecution itself. So in order to preserve the clients right to compensation, we have to go to trial, or at least get a "full surrender" from the DA on the prosecution’s merits(a "no true bill" from a grand jury counts.) "

Astrada v. Archer, 34401/05
Decided: February 14, 2007

Justice Arthur M. Schack

KINGS COUNTY
Supreme Court

"The instant action resulted from a real estate contract that never closed. I granted summary judgment to plaintiff and made the following order on December 21, 2006, in relevant part:

that within 10 days after notice of entry of this order is served by plaintiff upon defendants, defendant Regina Felton shall refund to plaintiff Faith Astrada, by payment to her present counsel, James T. Gerardi, Esq., plaintiff’s $30,000.00 down payment, together with accrued interest from April 19, 2005 to October 28, 2005, and statutory interest, at the CPLR §5004 rate of 9 per cent, from October 28, 2005 to the date of refund.

Further, I ordered a hearing on February 9, 2007, pursuant to 22 NYCRR §130-1.1, to determine if defendant Felton had engaged in "frivolous conduct," and to give defendant Felton "a reasonable opportunity to be heard," before possibly awarding costs and/or sanctions. Astrada v. Archer, 14 Misc3d 1206 (A), 2006 NY Slip Op 52432 (U).

Prior to the hearing, Mr. Gerardi notified Ms. Felton and this Court by mail, on February 1, 2007, that he had served Ms. Felton by first class mail and certified mail on January 3, 2007 with my Decision and Order. The certified mail return receipt shows that Ms. Felton’s office received the Decision and Order on January 7, 2007. Ms. Felton filed a Notice of Appeal on January 22, 2007. Thus, there can be no doubt that Ms. Felton was served with my December 21, 2006 Decision and Order.

At the February 9, 2007 hearing, both Ms. Felton and Mr. Gerardi were present.

Ms. Felton admitted that she had not returned the $30,000.00 down payment together with accrued and statutory interest. Defendant Felton unequivocally stated that she had the $30,000.00 down payment in her escrow account. She presented no testimony or evidence that a stay of enforcement, pursuant to CPLR §5519, pending her appeal had been granted.

I reserved decision on whether or not Ms. Felton engaged in "frivolous conduct" and if so, what costs and sanctions shall be awarded. However, with respect to Ms. Felton’s failure to comply with my Decision and Order to return the $30,000.00 down payment, together with accrued and statutory interest from April 19, 2005, it appears that Ms. Felton is engaging in conduct that may result in a finding that Ms. Felton is guilty of civil contempt.

Accordingly, it is

ORDERED that defendant Regina Felton, Esq. may be found guilty of civil contempt, in violation of Judiciary Law §763 (A), if 14 days after notice of entry of this order is served by plaintiff upon defendant Regina Felton, Esq., defendant Regina Felton, Esq., has not refunded to plaintiff Faith Astrada, by payment to her counsel, James T. Gerardi, Esq., plaintiff’s $30,000.00 down payment, together with accrued interest from April 19, 2005 to October 28, 2005, and statutory interest, at the CPLR §5004 rate of nine per cent, from October 28, 2005 to the date of refund.

This constitutes the Decision and Order of the Court. ¦

Anthony Lin of the New York Law Journal writes:

"Thelen Reid Brown Raysman & Steiner’s representation of the estate of a wealthy Mexican politician has landed the law firm in a controversy worthy of a steamy telenovela.

For over a decade, Robert J. Reger, a partner in the New York office of San Francisco-based Thelen Reid, was the lawyer for Emilio Martinez Manautou, a physician-turned-politician who held a number of positions in the Mexican government, including governor of the state of Tamaulipas, directly across the Texas border.

Mr. Reger advised Dr. Martinez on the creation of two trusts, the so-called Family Trust and the so-called EMM Trust. The latter, which contained $7 million, named as sole beneficiary a Texas woman, Alicia Trevino, who also had a 12 percent interest in the Family Trust. A source familiar with the situation described Ms. Trevino as Dr. Martinez’ long-time mistress.

Mr. Reger was co-trustee of both trusts. Dr. Martinez died in December 2004, but his daughter Letizia Martinez de Gonzalez is now claiming Dr. Martinez came to suspect Mr. Reger and Ms. Trevino had developed a relationship. Based on his suspicions, Ms. Gonzalez alleges, Dr. Martinez removed Mr. Reger as co-trustee a few months before he died and also made plans to disinherit Ms. Trevino.

The main drama is playing out in San Antonio probate court, where Ms. Trevino has sued Ms. Gonzalez, who replaced Mr. Reger as trustee, over her alleged transfer of $4 million from the EMM Trust to the Family Trust, in which Ms. Gonzalez has a 50 percent interest.

But Ms. Gonzalez raised her allegations in Manhattan Supreme Court, where she sought an order directing Mr. Reger and Thelen Reid to produce documents and submit to depositions. She claims available documents already detail a pattern of suspicious communications between Mr. Reger and Ms. Trevino that suggest he has assisted her with her probate lawsuit.
"

Here is a medical malpractice statute of limitations continuous representation case which has implications for a legal malpractice case, too.  The rule is similar in both attorney malpractice and medical mal.

"A medical malpractice cause of action accrues on the date of the alleged act, [*2]omission, or failure complained of, and is subject to a 2½;-year statute of limitations (see CPLR 214-a; Young v New York City Health & Hosps. Corp., 91 NY2d 291, 295; Massie v Crawford, 78 NY2d 516, 519; Nykorchuck v Henriques, 78 NY2d 255, 258). However, under the continuous treatment doctrine, the statute of limitations is tolled " when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint’" (McDermott v Torre, 56 NY2d 399, 405, quoting Borgia v City of New York, 12 NY2d 151, 155).

The defendants Delia M. Keating, H. Dirk Sostman, M.D., P.C., and Strang Cancer Prevention Center (hereinafter collectively the defendants) demonstrated that the plaintiff commenced the subject medical malpractice cause of action after the statute of limitations had expired. In opposition to the motions, the plaintiff failed to show that the statute of limitations was tolled by the continuous treatment doctrine (see Young v New York City Health & Hosps. Corp., supra at 296-297; Massie v Crawford, supra; Nykorchuck v Henriques, supra at 259; see also Gaspard v Herard, 20 AD3d 504, 505). The evidence demonstrated that the defendants merely provided the plaintiff’s decedent, Maria Pennisi (hereinafter the patient) routine annual mammograms and semi-annual breast examinations. Although the plaintiff submitted an affidavit from the patient in opposition wherein the patient averred that the defendants treated her for a specific breast condition, this was directly contradicted by the patient’s deposition testimony. Thus, the Supreme Court properly granted the motion and dismissed the complaint insofar as asserted against the defendants. "

Plaintiff sues defendant attorney for legal malpractice, constructive fraud and unlawful imprisonment.  All fails but constructive fraud for misrepresenting the soft idea of experience in commercial law.

"There were triable issues of fact with respect to the cause of action for constructive fraud. Plaintiff Herbert Nason testified that he retained these attorneys based not only on a third party’s recommendation, but on defendant Fisher’s representation that he was experienced in handling commercial partnership cases (cf. Laub v Faessel, 297 AD2d 28 [2002]). The cause of action for false representation in violation of Judiciary Law § 487 was deficient for failure to establish the requisite "chronic or extreme pattern of legal delinquency" (Solow Mgt. Corp. v Seltzer, 18 AD3d 399, 400 [2005], lv denied
5 NY3d 712 [2005]), or that such alleged conduct was the proximate cause of any loss (see Jaroslawicz v Cohen, 12 AD3d 160 [2004]). The malpractice cause of action was also properly dismissed for failure to establish that the attorneys’ conduct was the "but for" cause of any loss (see e.g. Berkowitz v Fischbein, Badillo, Wagner & Harding, 2006 NY App Div LEXIS 13445, 2006 WL 3290438), and, in light of the client’s admission that the ultimate settlement of his underlying litigation was favorable, that there was any loss at all. Since the malpractice cause of action was deficient in these respects, it is immaterial that the defendant attorneys’ alleged violation of Disciplinary Rules might otherwise constitute some evidence of malpractice (see William Kaufman Org. v Graham & James, 269 AD2d 171, 173 [2000]). As to the false imprisonment cause of action, the record reflects that defendants merely sought to prevent [*2]plaintiffs from taking attorney work product without payment.

Summary judgment was properly denied on the cause of action for breach of contract regarding allegedly excessive fees. The motion court properly employed its own knowledge, expertise and experience in determining that there was an issue of fact regarding the alleged overbillings (see David Realty & Funding, LLC v Second Ave. Realty Co., 26 AD3d 257 [2006], lv denied 7 NY3d 705 [2006]).

Our experience is that an Erbs palsy case is kind of hard to lose.  Most are settled, and the few that are not, generally have a good defense.  Here is a midwest juror’s take on a lost Erbs palsy case.

"The first notice got lost, so when I got the warning noting my failure to report to jury duty three months ago, I quickly called and rescheduled to report on Feb. 5. "A day off. Yeah!" I thought.
Lucky me, I had a low number. After being picked and kicked off the jury for a rape trial, I was called up again a second time for a malpractice lawsuit. I had to sit for two hours that day, and one hour the next before the entire 14-member jury was completed. It seemed so many people had an excuse. Who knows whether they were legitimate or not.

For nine days, the 14 of us, eight men and six women of all ages and walks of life, sat listening to opposing viewpoints. It was like I was back in biology class. I took notes to remember the key points of each witness.

Several OB/GYN doctors, a neurologist and an orthopedic surgeon taught us all about the techniques to deliver a child with a shoulder dystocia, and treatment of brachial plexus (Erb’s palsy) injuries.

Basically, two physicians were accused of using inappropriate procedures to deliver a child after he was delivered to the head and got stuck. Three others were being sued for failure to conduct a last-minute ultrasound to determine birth weight and offer the woman a C-section since, the plaintiff’s attorney argued, there were signs that she would deliver a large baby – he was 10 pounds, 6 ounces at birth – and since she had other risk factors for dystocia.

The methods and procedures were drilled into our heads, over and over again. The standard of care expected of doctors delivering a child in 1998 were drilled into our heads. We saw diagrams, were given demonstrations, and heard testimony from experts paid $5,000 a day to testify.

It was dry, technical stuff but a bit interesting. The Worcester Superior courtroom was cold, and steaming hot in our waiting room. At times, bored from hearing the same thing, I stared at the ceiling, counted the molding, and glanced at the portraits of judges on the walls.

The trial had its emotional parts, like when the mother, in the last stages of pregnancy with her third child, took the stand. The woman, a native of Ghana, seemed to have a hard time understanding some questions.

Something told me she didn’t like being in court. She told us how she has to brush her son’s teeth, tie his shoes, and feed him. She told us how her boy, now 8 and with limited use of his right arm, is often teased by schoolmates. She said since he was born, she could not hold a job since she had to spend so much time caring for him.

Early into her testimony, she closed her eyes, started sniffing and broke down in tears. It was real. I had to look away. I had to try my best to block out the emotions, to not let it cloud my opinion.

The medical records, common sense, my experiences raising a child with limited use of one hand, the fact that the woman was not diabetic and other inconsistencies in the case were the keys that persuaded me to side with the entire jury. In less than 20 minutes of deliberation, we decided that the five doctors were innocent of negligence.

I felt good that we did the right thing, and bad that one side had to lose, that the plaintiffs left the court probably feeling they were wronged once again. I agreed with one juror who wondered whether the now divorced couple’s situation would have turned out differently if they were wealthier, and could have afforded a private doctor.

As a juror, I didn’t see this as one side telling the truth and the other a lie, but figured it was all about perception. Two people could honestly look at the same event and disagree as to what happened. That’s what I learned during jury duty.

Here is a [subscription] case from the NYLJ.  Would the attorney, if permitted to act as a private DA be granted the same insulation from legal malpractice as a real DA?

"Matter of Sedore v. Epstein, 2672/06
Decided: January 23, 2007

DUTCHESS COUNTY
Supreme Court

James W. Hill, Sr. Asst. Public Defendant

Dutchess County Public Defender’s Office

Bridge Rahill Steller, Chief Asst. District Attorney

District Attorney’s Office of Dutchess County

Justice Brands
Click here to see Judicial Profile

DECISION, ORDER & JUDGEMENT

The petitioner challenges the delegation of prosecution of charges against her of harassment in the second degree by the District Attorney’s Office. The District Attorney’s Office points to People v. Soddano, 86 NY2d 727 [1995] for its holding that the District Attorney may delegate the prosecution of "petty crimes or offenses" to private attorneys. However, it was a State Trooper who did the prosecuting of a speeding violation of the Vehicle and Traffic Law, not an individual complainant’s private attorney’s prosecution of a harassment charge.

Petitioner is represented by the Public Defender, James Hill. Petitioner wanted Mr. Hill to represent her in her cross-complaint against the complainant, Jonathan Dallar. However, Mr. Hill is not authorized to do so but only to represent indigent defendants on criminal charges. The petitioner states she cannot afford to retain counsel and has been unable to find counsel to represent her pro bono. At an appearance before respondent, Harold D. Epstein, as Town Justice, the petitioner’s cross-complaint was dismissed.

These proceedings all arise following a board meeting held July 18, 2005 at the Locust Grove Condominium Complex in Fishkill, New York. An incident occurred involving the petitioner, Jonathan Dallar, and Heidi Braun, as a result of which the police were called. Petitioner was charged with two counts of harassment in the second degree based on the complaints by Mr. Dallar and Ms. Braun. Mr. Dallar was charged with one count of harassment in the second degree (dismissed as hereinabove referenced) based upon the complaint of the petitioner. According to Mr. Hill’s affirmation, the District Attorney’s Office advised at an appearance before Justice Epstein that due to the fact that the charges were all non-criminal violations not classified as domestic violence cases, per the policy of the Dutchess County District Attorney’s Office, it would not be prosecuted. The District Attorney’s Office authorized private counsel to prosecute the complaints on behalf of Mr. Dallar and Ms. Braun. All matters were set for trial on January 11, 2006. The matter could not be resolved, and was adjourned ultimately without date pending the determination of this petition. Petitioner objects to the attorneys, D. James O’Neil, and Adam Kirk, being designated by the Dutchess County District Attorney’s Office to prosecute the complaints of Mr. Dallar and Ms. Braun, respectively, on the basis that they are private practitioners involved in the general practice of law, who were retained by the complainant, who are not employees of the Dutchess County District Attorney, and are not duly appointed to represent the people of the State of New York. Petitioner’s counsel argues that County Law Section 700 (1) provides that the District Attorney shall conduct prosecutions for all crimes and offenses including harassment in the second degree. County Law Section 701 provides a mechanism for the appointment of a special prosecutor in certain circumstances which the petitioner and her counsel state are inapplicable here. Petitioner’s counsel points to People v. Zimmer, 51 NY2d 390 [1980] and the Code of Profession Responsibility, Ethical Cannon 7-13, providing that a District Attorney’s primary obligation is to the public and that the defendant as a member of the public, is entitled to a full measure of fairness such that his mission is not so much to convict as it is to achieve a just result. Counsel argues that this is not so of a private attorney retained to prosecute a criminal defendant. It is upon this that petitioner bases her argument that the absence of a "neutral prosecutor" in this case violates her due process rights.

In answer, the District Attorney’s Office states it has a long standing policy of not assigning Assistant District Attorneys to prosecute violations of local laws, considered "petty" offenses. In 1963, the New York Court of Appeals found that although County Law Section 700 (1) does not mandate the physical presence at every criminal hearing in the County of the District Attorney or his deputy, it means at least that the District Attorney must carry the responsibility and set up a system whereby he knows of all the criminal prosecutions in his county and either appears in person or by Assistant or consents to appearance on his behalf by other public officers or private attorneys. (Citing People v. Van Sickler, 13 NY2d 61). The petitioner argues that the District Attorney has not carried out this responsibility. Further, in the Van Sickler matter, the complaining witness prosecuted on her own behalf, and in the cases cited in that opinion, it was the Deputy Sheriff, Village Attorney, Town Attorney or Corporate Counsel, that prosecuted. At bar, there is no claim other than that the counsel are being paid by the complainants. If a defendant has no right to choose the prosecutor, why should a complainant? This court finds a great distinction between pro se representation, representation by a District Attorney or other public servant on behalf of the People and prosecution by a lawyer hired by the complainant versus an indigent defendant. That is not justice, but an abuse of the judicial system.

The District Attorney’s Office argues that petitioner is seeking prohibition to review a claim that she is about to be improperly tried on violation charges and therefore is raising an issue in a pending criminal case which may not be reviewed in an Article 78 proceeding, and argues that petitioner’s remedy if convicted would be to appeal. The District Attorney’s Office argues that a private attorney appointed by the District Attorney’s Office must abide by the same standards as a public prosecutor. This is impossible, at bar, where those prosecutors have been privately paid and retained by the complainants. Further, although petitioner alleges that her complaint was unfairly dismissed, the District Attorney’s Office offers no explanation for this nor as to how such a determination was made which is particularly troublesome given that all three complainants gave information and supporting depositions to the responding police at or about the same time, following the July 18, 2005 incident, and in the same form, and where the basis for such dismissal cannot be ascertained from the papers before this court.

As argued in the reply affirmation of James Hill, Esq., of the Dutchess County Public Defender’s Office, the petitioner does not seek mandamus or prohibition against the Dutchess County District Attorney. Counsel argues that allowing this proceeding to go forward would constitute an abuse of authority by the Town of Fishkill which is an issue properly before this court upon review in an Article 78 proceeding. This court agrees.

There is an inherent conflict and ethical dilemma for a privately retained attorney to prosecute on behalf of the District Attorney’s Office based upon which this court finds it would be an abuse of discretion and in excess of lawful procedure to allow the prosecution to go forward in such manner. Accordingly, it is hereby

ORDERED that the petition is granted to the extent that the respondent, Hon. Harold D. Epstein, as Town Justice of the Town of Fishkill, Dutchess County, New York, shall not proceed in the Matter of the People v. Sedore if prosecution is not by the District Attorney, or an Assistant District Attorney.

The foregoing constitutes the decision, order and judgment of this court.

Pursuant to CPLR Section 5513, an appeal as of right must be taken within thirty days after service by a party upon the appellant of a copy of the judgment or order appealed from and written notice of its entry, except that when the appellant has served a copy of the judgment or order and written notice of its entry, the appeal must be taken within thirty days thereof. "