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. "

Here is a blog blurb from Eric Turkowitz and his New York Personal Injury Blog.

"Howard Bashman (How Appealing) comments today in a nice article at Law.com (Decorum on Appeal: When Judges Are Under Attack) on the recent Utah Supreme Court decision to sanction a law professor $17,000 for the disrespect he showed to the appellate court below. I wrote about this on Friday, with a link back to the ABA article on the subject.

Bashman’s treatment of the subject is good reading for anyone that intends to litigate anything.

What was also interesting about the decision is that the court didn’t decide the merits of the appeal. I suppose, theoretically, there is a legal malpractice case there as a result of the client losing his case like that. But in order to prevail, the plaintiff must ultimately end out back in the Utah Supreme Court and get a reversal of the lower appellate court ruling.

That sounds like a long, miserable experience, and judicial economy doesn’t seem to be served here without a decision on the merits when it first appeared before the court.

This took several readings but the scholarly article seems to say that there have been changes in Kentucky tax law, and that LLCs and other statutory entities may need to be changed, and that attorneys who advised clients to use these entities now need to tell the former clients that changes have to be made.  Read the abstract.

"Houston’s Vinson & Elkins, longtime outside counsel for Enron Corp., was dismissed from a massive shareholder securities class action filed by disgruntled Enron shareholders.

In an order signed Wednesday, U.S. District Judge Melinda Harmon of Houston dismissed a number of other defendants from the class action, which is set for trial in April, including former Enron executives Lou Pai, Kenneth Rice, Joseph Hirko, Kevin Hannon and Lawrence Greg Whalley. She also dismissed the estate of former Enron Chairman Kenneth Lay, who died in July 2006 after he was convicted in federal court of criminal charges stemming from the collapse of Enron.

Harmon’s order grants a motion filed by the plaintiffs to voluntarily dismiss V&E and the others from Mark Newby, et al. v. Enron Corp., et al., which seeks billions of dollars in damages from Enron-related defendants. "

"This legal malpractice action arises out of defendants’ representation of plaintiff and his wife in an action brought by plaintiff’s former landlord, Solow Management Corp. (Solow) to recover, among other things, rent arrears in the amount of $180,313.57.

To prevail in an action to recover damages for legal malpractice, the plaintiff must establish that the defendants "failed to exercise that degree of care, skill, and diligence commonly possessed and exercised by an ordinary member of the legal community, that such negligence was the proximate cause of the actual damages sustained by the plaintiff, and that, but for the defendant’s negligence, the plaintiff would have been successful in the underlying action" (see Laventure v. Galeno, 307 AD2d 255 [2nd Dept. 2003]).

In the case at bar, there is no question that defendants’ negligently prepared and filed the CPLR3219 tenders. A trial court of coordinate jurisdiction and the Appellate Division has already ruled as such. This court is not going to entertain arguments made by defendants to the contrary. Here, no issue of facts exists, the plaintiff established his entitlement to judgment as a matter of law by demonstrating that "but for" the negligence of the defendants, they would not have incurred certain damages in the underlying action. Moreover, the discovery requested by the defendants in opposition to plaintiff’s motion is without merit. "