Here is a short but interesting list of things to do to avoid lawsuits.

"Eight steps to safeguard your business

Professional contract agreements. 

Documentation and tracking changes.

Checking work. 

Communications with the client.

Early recognition of potential disputes.

Early recognition of potential disputes.

Meeting budgets

Costs.

Time.

Fees and charges

Susan Cartier-Liebel’s Solo Law Blog puts this argument forward:  mandatory legal malpractice insurance is unnecessary, because it would not benefit clients, only subject attorneys to sky-high premiums. 

She writes: "Huh? What I can tell you is this: forcing lawyers to purchase malpractice insurance for this purpose would itself be a crime. It’s called extortion……

And the ones who will be harmed the most are solo and small firm practitioners who already struggle under the weight of malpractice insurance premiums. "

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.
"