Here is a legal malpractice case from a warm place.  In view of the 9 degree weather this morning, it makes for good reading.  From Day on Torts,[go there for all the links] this blog blurb:

"The Hawaii Supreme Court has ruled that two law firms who represented a party in a business dispute cannot be sued by the adversary party for intentional interference with contractual relations.

Plaintiff had a dispute with a business partner – the two were general partners of a partnership that ran a hotel. The defendant law firms represented the non-plaintiff partner. The dispute ended up in arbitration, and Plaintiff demanded to see certain books and records of the hotel partnership. The law firms took possession of those documents, and Plaintiff sued them for interfering with its right to access to the books and records. The law firms said, inter alia, that the suit was barred by the litigation privilege.

The Court did a nice review of the history of the litigation privilege and ruled that the lawyer’s conduct was protected by the privilege. The Court explained that the fact that the arbitration process was temporarily stayed at the time the dispute arose was immaterial.

The case is Kahala Royal Corporation v. Goodsill, Anderson, Quinn and Stiffil, Nos. 26669 and 26670 (Jan. 7, 2007). Read it here.

Like you, I have read a lot of appellate court opinions over the years but this one has a feature I have never seen before. Not only did each of the justices sign the opinion, but each of them signed it without the presence of the traditional signature line for each of the justices. I assume that is some sort of tradition of the Hawaii Supreme Court. I like it.

Here is a worthwhile article, despite some misconseptions about legal malpractice.  The article states:

"As for risk management, the statute of limitations on legal malpractice claims generally begins once a client discovers possible negligence and runs for years thereafter, depending on your state, which could expose a lawyer and its firm to claims well beyond a file’s normal retention period. Storing client files electronically makes longer retention periods more cost-effective and long-term risk management more feasible.

This is wrong in NY, as there really is no discovery statute of limitations. While there are exceptions, one should not depend on any date later than the last day the attorney represented the plaintiff. 

In any event, the rest of the article on paper retention and electronic files is worthwhile.

We really had a hard time wrapping our mind around this story.  What is especially interesting is the narcisstic story the protagonist tells on his own web site. 

"Donor battling Hillary now sues Judicial Watch
Peter Paul takes on former legal counsel in case against Clintons 

Business mogul Peter Franklin Paul, who claims he was Sen. Hillary Clinton’s top donor in 2000, is suing his former legal counsel, Judicial Watch, charging the government watchdog with fundraising abuses, legal malpractice, false advertising and copyright infringement in his case against the Clintons.

Named in the suit are Judicial Watch President Tom Fitton and directors Paul Orfanedes and Chris Farrell.

Paul claims Judicial Watch, which became known for its many lawsuits against the Clintons in the 1990s, raised millions of dollars to support Paul’s whistleblowing activities against the Clintons then redirected the money.

Husband and Wife, both attorneys are on trial for sexual extortion.  Why do we report this case?  The attorneys didn’t have enough on their plate with the legal malpractice litigation they pursued.  Perhaps a longer day at the office??

"Two San Antonio, Texas, lawyers, married to each other, face a trial on theft charges based on allegations that the wife had sexual liaisons with four men whom the husband subsequently threatened with litigation unless they compensated him for his emotional distress.

The trial in State v. Mary Roberts, Ted Roberts is scheduled to begin on Feb. 12 before Judge Sid Harle in San Antonio’s 226th District Court. Ted Roberts, principal in Ted H. Roberts in San Antonio, is certified in personal injury law and civil trial law by the Texas Board of Legal Specialization, according to the State Bar’s Web site. As noted on that Web site, Mary Roberts’ primary areas of practice include ethics and legal malpractice, law office management, real estate and wills, and trusts and probate. She is an attorney in her husband’s firm.

The whole article.

A Bexar County grand jury first indicted the two lawyers on the theft charges in 2005, identifying the four men who are the complainants only by their initials. A second Bexar County grand jury reindicted the couple in 2006, this time naming the four men: Steve Riebel, Geoffrey Ferguson, Paul Fitzgerald and Reagan Sakai.

The second indictments allege that Mary and Ted Roberts unlawfully appropriated the four men’s money by deception and by coercion. According to the indictments, the alleged offenses — violations of Texas Penal Code §§31.01 and 31.03 — occurred between Oct. 1, 2001, and April 2, 2002 "

Attorney referrs case to malpractice firm, then after a while, dies.  Widow asks for referral fee on the    $ 875,000  settlement.  Held:  she collects, even when the firm welshes.

Reich v Wolf & Fuhrman, P.C.
2007 NY Slip Op 00623
Decided on January 30, 2007
Appellate Division, Second Department

"In September of 1998, Nelson Cardona retained the defendant law firm, Wolf & Fuhrman (the predecessor to the defendant Wolf & Fuhrman, P.C.), for the purpose of commencing a personal injury action on his behalf. Cardona had been referred to Wolf & Fuhrman by the decedent, Arthur Reich, an attorney who was not associated with Wolf & Fuhrman in any manner. Wolf & Fuhrman, as attorneys of record, subsequently commenced a personal injury action on Cardona’s behalf, which, after four years of litigation, was settled for the sum of $825,000. Thereafter, Phyllis Reich, as the Executrix of the Estate of Arthur Reich, commenced the instant breach of contract action seeking to enforce a fee-sharing agreement that had been entered into between the decedent and Wolf & Fuhrman in November 1998.

The Supreme Court granted the plaintiff’s motion for summary judgment, denied the defendants’ cross motion for summary judgment dismissing the complaint, and awarded the plaintiff the sum of $89,777. A judgment thereafter was entered in accordance with the order. "
he defendants subsequently moved, inter alia, to vacate the order and the judgment on the ground that the Preliminary Letters Testamentary issued to Phyllis Reich as Executrix had expired as of the time the motion and cross motion for summary judgment were made and decided. The Supreme Court denied the motion, finding that the defendants had waived this objection by failing to raise it in opposition to the plaintiff’s motion for summary judgment, and that new Letters Testamentary had since been issued to Phyllis Reich, thereby curing any lapse in her capacity to pursue the action.

In fee-sharing disputes between attorneys, "the courts will not inquire into the precise worth of the services performed by the parties as long as each party actually contributed to the legal work and there is no claim that either refused to contribute more substantially" (Benjamin v Koeppel, 85 NY2d 549, 556). This court has held that such an agreement is enforceable so long as the attorney who seeks his share of the fee "has contributed some work, labor or service toward the earning of the fee" (Witt v Cohen, 192 AD2d 528, 529 [internal quotation marks and citation omitted]; Rozales v Pegalis & Wachsman, 127 AD2d 577, 578). Here, the Supreme Court correctly determined, based upon the evidence presented, that the plaintiff’s decedent contributed some work, labor, or service toward the earning of the fee. Thus, the plaintiff was entitled to the decedent’s share of the fee as allocated in the agreement (see Edelstein v Pirrotti, 286 AD2d 660; Sickmen v Birzon, Szczepanowski & Quinn, 276 AD2d 689).

Contrary to the defendants’ contentions, the Supreme Court properly denied their motion to vacate the order and the judgment on the ground that Phyllis Reich lacked the legal capacity to pursue the litigation

May you sue the opponent’s attorney?  A quick look at the principal of privity says: "No."  Here is a rare circumstance when you may sue the opponent’s attorney.  This particular husband failed; the opening remains, however.

Mars v Grant
2007 NY Slip Op 00576
Decided on January 30, 2007
Appellate Division, First Department

"Plaintiff, who is also the plaintiff in a divorce matter in which his wife is represented by defendants herein, failed to support his pleading of a cause of action under Judiciary Law
§ 487 with allegations that adverse court rulings in the matrimonial action were based on acts of deceit by defendant attorneys (see Melnitzky v Owen, 19 AD3d 201 [2005]), or allegations pleading the required elements of fraud (see Manna Fuel Oil Corp. v Ades, 14 AD3d 666 [2005]), including detrimental reliance (see New York City Tr. Auth. v Morris J. Eisen, P.C., 276 AD2d 78, 86 [2000]). The failure to plead detrimental reliance is also fatal to plaintiff’s cause of action for notary liability under Executive Law § 135 (Rastelli v Gassman, 231 AD2d 507, 508 [1996]), which, in any event, is pleaded in conclusory terms without any specificity. "

Today’s Law Journal Court Notes has a first.  e-mails of adjournment by stipulation are premitted in the Motion Support Part.  Either a stipulation or an affirmation reciting that oral consent to a stipulation was obtained can be sent by e-mail [and attachment] to NYMOTCAL@courts.state.ny.us by 5:00 pm the night before.  See the court note for full details.

Purchase Partners II LLC v. Westreich, 604219/2004
Decided: January 23, 2007

Justice Bernard J. Fried

Here is a case from the NYLJ which denied disqualification:

Third-party defendant Adam Hochfelder moves for an order: (1) quashing a subpoena, pursuant to CPLR 2304 and 3103[1]; and (2) disqualifying the law firm of Kramer Levin Naftalis & Frankel LLP (Kramer Levin) from continuing to represent defendant/third-party plaintiff Anthony Westreich in these actions.

The complaint in the main action alleges that Hochfelder and Westreich together owned a real estate investment company named Max Capital Management Corporation (Max Capital), which owned an interest in a property located at and adjacent to 260 Park Avenue South (260 Park) (see Complaint, ¶¶11-12, 21). Westreich – and certain of his family members through an entity named DTT Park Avenue South LLC (DTT) – allegedly held a share of Max Capital’s interest in 260 Park (see id., ¶22). According to the complaint, plaintiffs are persons and entities who became creditors of Max Capital, Hochfelder and/or Westreich by investing money in, and/or loaning money to, any or all of them (see id., ¶¶15-25).

DR 5-108 (B) provides, in relevant part, that:

Except with the consent of the affected client after full disclosure, a lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client:

(1) Whose interests are materially adverse to that person; and

(2) About whom the lawyer had acquired information protected by [DR 4-101 (B)] that is material to the matter.

Hochfelder has not established that disqualification of Kramer Levin is warranted under DR 5-108 (B) because, as previously stated, he has not established: (a) that he, rather than Belfonti and/or Aligned, was formerly a client of Selver or Paul Hastings; (b) that the matters involved in Selver’s and Paul Hastings’s prior representation of Belfonti and/or Aligned are substantially related to the matters involved in Kramer Levin’s current representation of Westreich; or (c) that the interests of Belfonti and/or Aligned are materially adverse to the interests of Westreich in this action.

Hochfelder has also failed to establish, as required for disqualification under DR 5-108 (B), that Selver, while he was a partner of Paul Hastings, acquired any information which is both "protected by [DR 4-101 (B)]" and "material" to the matter of this litigation. Insofar as Hochfelder may have communicated information to Selver concerning Hochfelder’s own prior relations with Max Capital and/or Westreich, such information might be material to this litigation, but would not be protected by DR 4-101 (B) – which concerns the protection of a client’s confidences and secrets – because Hochfelder has not established that he was a client of Selver’s and/or Paul Hastings’s. Conversely, insofar as Selver, in the course of his representation of Belfonti and/or Aligned, may have obtained information concerning Belfonti and/or Aligned which would be protected by DR 4-101 (B), Hochfelder has not established that any such information would be material to this litigation.

Finally, inasmuch as Hochfelder has failed to establish that Selver himself would be disqualified from representing Westreich in this litigation, if he attempted to do so, there is no basis for imputing such a disqualification to Selver’s current firm, Kramer Levin.

For the foregoing reasons, it is hereby

ORDERED that the branch of third-party defendant Adam Hochfelder’s motion which seeks to disqualify Kramer Levin Naftalis & Frankel LLP from continuing to act as counsel to defendant/third-party plaintiff Anthony Westreich is denied.