A  common law retaining lien, known also as a "general possessory lien" entitles the outgoing attorney to "retain all papers, securities, or money belonging to the client" that came into the attorney’s possession in the course of representation, as security for payment of attorney’s fees"

A retaining lien arises from Judiciary Law § 475 and is a statutory lien upon service of a notice of lien, which attaches to the case papers, and allows the attorney to retain as in the "general possessory" lien. It is enforceable only by retention of the items themselves and is lost if the file or documents are no longer in the attorney’s possession.

A charging line similarly arises from Judiciary Law § 475, and allows for a "statutory lien upon service of a notice of lien, which attaches to any recovery and thus secures the attorney’s right to compensation."

All of these liens are extant so that the monies or securities held by the attorney are kept available for an attorney fee hearing. That hearing will be held to determine the amount of fees, based upon a quantum meruit determination.

"While Retrieving Drunken Client, Lawyer Is Busted for Drunken Driving
The Associated Press
January 30, 2007

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Police arrested a Madison, Wisc., lawyer for drunken driving after he went to the station to pick up a client who had been arrested for the same offense.

"I can’t tell you how humbled I am, how embarrassed I am," said Madison lawyer Rick Petri, who once prosecuted drunken drivers for the Madison city attorney’s office.

Petri’s client, former Dane County Board member Patrick DePula, 34, was arrested early Thursday for drunken driving, Madison police spokesman Mike Hanson said. His blood alcohol concentration was 0.08 percent.

Petri, 64, said he had been out the same evening, had a couple of drinks and went home about 8 p.m. to watch the Badgers basketball game. He said he had a couple more drinks, then went to bed.

He said Madison police called around about 2 a.m. Thursday asking him to pick up DePula.

Petri said the officer asked if he had been drinking, and said he could only come if he had no alcohol in his system.

He said he was certain his blood-alcohol concentration was under 0.08 percent, the legal limit for drunken driving in Wisconsin.

"I did not think I was intoxicated, and I was wrong," Petri said."

Successful disqualification of your opponent’s attorney happens fewer times than one might guess.  Here is a successful disqualification:

"Finkelman v. Greenbaum, 8998-06
Decided: January 10, 2007

Justice Leonard B. Austin

NASSAU COUNTY
Supreme Court

PLAINTIFF MOVED to disqualify the firm of Doyle and Broumand LLP as attorneys for defendants, alleging the firm represented entities that were the subject of the disparity agreement in the instant matter and currently represented an entity in which plaintiff was a managing member. Defendants cross moved to dismiss the amended complaint. The court found the law firm represented HPS Holdings LLC in which plaintiff owned a 20 percent interest and was the co-managing member, in an action pending in the Bronx Supreme Court, noting once the firm realized that a potential conflict existed it sought to obviate the conflict by withdrawing as counsel for HPS. It stated the firm’s representation of HPS pre-dated its representation of defendant Greenbaum in this action, thus it was breaching its duty of loyalty to HPS by seeking to withdraw as counsel so that it could represent Greenbaum in the instant action. Hence, the court ruled a conflict or potential conflict existed mandating disqualification of the firm. "

Here is a well written and educational decision on a Morgan Lewis motion for summary judgment for legal fees based upon "account stated." 

It’s not often that the law firm loses this motion.  Read part of Justice Richter’s decision:

In this action, plaintiff-law firm Morgan, Lewis & Bockius LLP ("Morgan Lewis") alleges that its former client, defendant IBuyDigital.com, Inc. ("IBuy"), failed to pay legal bills totaling nearly $800,000. The complaint alleges two causes of action: account stated and quantum meruit. In its answer, IBuy asserts numerous affirmative defenses and counterclaims alleging breach of contract, legal malpractice, fraud, fraudulent inducement and breach of fiduciary duty. In this motion, Morgan Lewis seeks summary judgment on the account stated claim and dismissal of all of IBuy’s affirmative defenses and counterclaims. IBuy cross-moves to dismiss the complaint in its entirety or, in the alternative, to dismiss the quantum meruit claim and to limit the dollar amount of Morgan Lewis’s alleged damages.

"Morgan Lewis moves for summary judgment on its account stated claim. It is well-settled that the receipt and retention of an invoice without objection within a reasonable period of time may give rise to an account stated claim. Werner v. Nelkin, 206 A.D.2d 422 (2d Dept. 1994); Rockefeller Group, Inc. v. Edwards & Hjorth, 164 A.D.2d 830 (1st Dept. 1990). However, "[a] key element of a prima facie account stated claim is evidence that [the plaintiff] delivered one or more invoices for the amount claimed to defendant, so that he received them." Commissioners of State Insurance Fund v. Kassas, 5 Misc.3d 1012A (N.Y.C. Civ. Ct. 2004). Where a plaintiff’s evidence fails to establish that the invoices were properly addressed and mailed, there should be no presumption of receipt, and summary judgment on an account stated claim is inappropriate. Morrison Cohen Singer & Weinstein, LLP v. Brophy, 19 A.D.3d 161 (1st Dept. 2005); Citibank (S.D.), N.A. v. Martin, 11 Misc.3d 219 (N.Y.C. Civ. Ct. 2005) (the plaintiff on an account stated claim must show mailing of the account or alternate proof showing the account was received).

Judged by these standards, the Court concludes that Morgan Lewis has failed to meet its prima facie showing that it is entitled to summary judgment on its account stated cause of action. Morgan Lewis’s claim to summary judgment is supported only by an affidavit of Morgan Lewis partner David J. Sorin. In that affidavit, Sorin states, in conclusory fashion, that Morgan Lewis submitted periodic invoices to IBuy.3 There is no evidence submitted, however, of the basis for Sorin’s knowledge that the bills were in fact mailed, or any proof that they were mailed on a particular date. Of course, the date of mailing is crucial in determining whether the bills were held for a unreasonable time without objection.4 Nor is there any prima facie showing of a regular office procedure for outgoing mail.

In light of these deficiencies, Morgan Lewis’s motion for summary judgment on the account stated claim must be denied. See Morrison Cohen Singer & Weinstein, LLP v. Brophy, 19 A.D.3d at 161 (reversing lower court’s grant of summary judgment on account stated claim due to the plaintiff’s failure to submit evidence of a regular office mailing procedure and the dates when the disputed invoices were allegedly mailed); Legum v. Ruthen, 211 A.D.2d 701 (2d Dept. 1995) (reversing grant of summary judgment on account stated claim where there was no proof as to the date the bill was submitted); Commissioners of State Insurance Fund v. Munkacs Car Service Ltd., 11 Misc.3d 802 (N.Y.C. Civ. Ct. 2006)(dismissing account stated claim after conclusion of the plaintiff’s evidence at trial because the plaintiff provided no evidence that the invoices were mailed to the defendant, let alone received); Commissioners of State Insurance Fund v. Kassas, 5 Misc.3d at 1012A (an inadequate showing of transmittal of invoices compels denial of summary judgment on account stated claim); see also New York & Presbyterian Hospital v. Allstate Insurance Company, 29 A.D.3d 547 (2d Dept. 2006)(summary judgment unwarranted since the affidavit of the plaintiff’s principal did not state that he personally mailed the claims nor describe the office mailing practice or procedures); Response Medical Equipment v. General Assurance Company, 13 Misc.3d 129A (App. Term 1st Dept. 2006)(same); cf. Ruskin, Moscou, Evans, & Faltischek, P.C. v. FGH Realty Credit Corp., 228 A.D.2d 294 (1st Dept. 1996)(granting summary judgment on account stated based on prima facie showing that defendant actually received the bills in question).

Even if the Court were to accept Sorin’s vague affidavit as proof of mailing, there is a disputed issue of fact because IBuy’s Chief Executive Officer Elliot Antebi, to whom the invoices were allegedly sent, has submitted an affidavit stating that he never received any of the invoices. In its reply papers, Morgan Lewis attempts to remedy its failure to set forth a prima facie showing by submitting affidavits from several office workers at Morgan Lewis explaining the firm’s invoice mailing procedures. However, it is well-settled that a plaintiff seeking summary judgment may not cure its failure to establish a prima facie case by submitting the missing evidence by way of reply. Thus, the Court cannot consider these reply submissions.5 See Batista v. Santiago, 25 A.D.3d 326 (1st Dept. 2006)(to meet its prima facie burden, summary judgment movant could not rely on evidence submitted for the first time in its reply papers); Rengifo v. City of New York, 7 A.D.3d 773 (2d Dept. 2004)(same); Migdol v. City of New York, 291 A.D.2d 201 (1st Dept. 2002)(same); Power Cooling, Inc. v. Wassong, 5 Misc.3d 22 (App. Term 1st Dept. 2004)(same); Chase Manhattan Bank v. New Hampshire Insurance Company, 4 Misc.3d 1026A (Sup. Ct. N.Y. Cty. 2004)(same).

This case is strikingly similar to Reliable Medical Services, P.C. v. Travelers Indemnity Company, 12 Misc3d 147A (App. Term 1st Dept. 2006). In that case, the court denied the defendant’s cross-motion for summary judgment on an insurance payment claim because "the affidavit of [the] defendant’s representative, submitted to establish proof of mailing of the verification requests, neither stated that she personally mailed the requests nor described [the] defendant’s mailing office and procedures." 12 Misc.3d at 147A. The Court then went on to reject the defendant’s attempt to remedy the deficiency by submitting proof of mailing in a reply affidavit. See also Mid Atlantic Medical, P.C. v. Travelers Indemnity Company, 12 Misc.3d 147A (App. Term 1st Dept. 2006)(same). Similarly, Morgan Lewis’s submission of its reply affidavits cannot cure its failure to have submitted them in its original motion papers. See Abramson v. Hertz, 19 A.D.3d 305 (1st Dept. 2005)(the plaintiff failed to adduce evidence sufficient to make out a prima facie entitlement to attorneys’ fees on an account stated theory, and the invoices submitted for the first time in reply papers were properly disregarded by the lower court).

Upstate law firm Upton, Cohen & Slamowitz are still in a EDNY debt collection case brought by an irate consumer.  The consumer’s claim is that the law firm did not follow the Fair Debt Collection Practices Act (FDCPA) obligation to review the case before sending a dunning letter, and that it have meaningful attorney involvement,.

The case continues.

"In rejecting Upton Cohen’s summary judgment motion last week, Eastern District Judge Raymond Dearie ruled that Upton Cohen had not sufficiently shown it had conducted an adequate review of Mr. Miller’s file.

"Neither the facts about defendant’s familiarity with its client, nor those about the procedure it followed prior to sending the July 18, 2000, debt collection letter to plaintiff, preclude the possibility that a reasonable jury could find that it failed to satisfy [the FDCPA’s] requirement for meaningful attorney involvement," Judge Dearie wrote in Miller v. Wolpoff & Abramson, 01 Civ. 1126.

He noted that the act requires that lawyers sending debt collection letters to have made some independent evaluation of the claims and not simply rely on a client’s assertion that a debt is owed. He said Mr. Slamovitz’s review of the facts appeared to have been "largely ministerial," with the lawyer relying heavily on the department store’s version of events.

Judge Dearie further noted that Mr. Slamovitz’s reliance on Lord & Taylor did not appear to be based on any knowledge of the store’s review procedures with regard to overdue accounts.

Upton Cohen’s large volume of debt collections also factored into the judge’s decision. He noted that the firm sent letters to 3,284 debtors in July 2000. This level of activity "raises doubts about defendant’s claims to have conducted a careful review of plaintiff’s file," the judge wrote.

Mr. Miller also had originally sued Rockville, Md.’s Wolpoff & Abramson, a much larger debt collection firm that referred the case to Upton Cohen. But that firm reached an agreement with the plaintiff.

Upton Cohen was represented by Mark Anesh of Wilson Elser Moskowitz Edelman & Dicker."

In NC as in New York, plaintiff must provide a ceritificate of merit for a medical malpractice case. In NC, the question of whether a legal malpractice plaintiff who is suing over a lost medical malpractice case must provide yet another certification when the legal malpractice case is brought was open. 

Plaintiff won in the intermediate Court of Appeals, with a determination that no new certificate had to be filed.  Defendants appealed to the Supreme Court of NC, where an evenly divided panel neither affirmed nor reversed, leaving the Court of Appeals decision in place, without precedential value.

The report.

We are located in Manhattan.  In New York State, the vast majority of courts are small:  Villange and Town courts.  They range over the 62 counties, even in the Second Department.  Here is a chilling story about how justice goes on in these small courts.  When finances are so badly handled, can legal malpractice be far behind?

Here is the re-print from the NYLJ/LawCom of Howard Bashman’s article, to which we alluded in an earlier blog:

"Some judges are crooked. Others are idiots. And some ignore or distort the facts and applicable law to reach results more to their liking than the facts and law, honestly portrayed, would allow.

When appealing from a ruling of an incompetent or dishonest trial judge, appellate lawyers often must wrestle with the extent to which the trial judge’s incompetence or dishonesty should be directly condemned in the brief. Similarly, when an appellate court judge believes that colleagues have reached an incorrect result, the appellate judge must decide the extent to which any separate opinion should condemn the other judges’ stupidity or dishonesty.

In my experience, in an appeal that is challenging the substance of a trial judge’s ruling, it is preferable to demonstrate as clearly as possible that the ruling is wrong rather than to try proving that the trial judge was dishonest or incompetent.

As appellate judges are well aware, even the smartest and most highly qualified trial court judges can sometimes reach erroneous results, and thus a direct assault on a trial court judge’s qualifications or motivations is usually, in the appellate court’s eyes, irrelevant to the central issue of whether the decision should be upheld or overturned. Also, an attack on a trial court judge’s integrity runs the serious risk of offending the appellate judges — not typically the best way to convince another person to agree with the position that one is advocating. "