The departments in New York are split on this issue.  1st Department:  burden in on defendant and it is an affirmative defense.  2nd Dept and 3d Dept:  Burden in on Plaintiff.  Collectability is the issue of how much could be collected on a hypothetical judgment which would have been obtained.  Here is Day on Torts on the issue.

We  reported on this a couple of weeks ago:  a la carte legal services rather than an entire meal.  Attorney and client agree on a specific service, ususally for a specific fee.  Problem?  The specific service may not be everything necessary.  As an example, attorney agrees to help client in divorce mediation, but does not check/change the pleadings, marshall the exhibits.

What happens when the result is sub-optimal and the client wonders where it all went wrong?  Here is astory on the movement.

 

"Duane Morris, ordered out of a local arbitration proceeding last year after being sued by health care giant McKesson Corp. over a conflict of interest, has filed a motion for a new trial and asked that a permanent injunction against it be lifted.

McKesson contends that because Duane Morris represented one of its subsidiaries in a Pennsylvania bankruptcy case, it is barred from representing an Atlanta couple suing another McKesson subsidiary.

However, in a motion filed last month by Bondurant, Mixson & Elmore partner Emmett J. Bondurant on behalf of Duane Morris (which had represented itself in earlier proceedings), the firm notes that a Pennsylvania bankruptcy case cited as the root of the conflict has been settled, and argues that no attorney-client relationship now exists between Duane Morris and McKesson.

In response, Morris Manning & Martin partners Joseph R. Manning and Larry H. Kunin last month filed a brief on McKesson’s behalf resisting the move, asserting that Duane Morris’ arguments fly in the face of legal rules and precedent, amounting to a "hot-potato" stratagem in which a lawyer abandons one client in favor of another whose business may be more lucrative. " From Law.com

Here is a man wrongfully convicted of rape, who was released after 4 years.  He obtained the maximum $ 25,000 from the state and a portion of his appellate fees.  He also sued his criminal defense attorney for failing to go after DNA evidence, which eventually exonorated him.  First Trial?  $2.8 million, then appellate reversal.  They later settled for an unknown amount.  The article

Attorney Richard Altman was not permitted fees in his defense [on a contingent retainer] of the artist whose wall side work on Houston and Broadway hung, was removed, was reinstated and then lost on appeal.  He is permitted the possiblity of fees on an appeal, however.  The details. " A claim for attorney’s fees against the artist who created Soho’s well-known sculpture "The Wall" will go forward following a Manhattan judge’s partial denial of the artist’s motion to dismiss.

Supreme Court Justice Emily Jane Goodman  dismissed a claim for more than $250,000 in connection with the federal lawsuit Richard A. Altman initiated on behalf of sculptor Forrest W. Myers, but held that Mr. Myers may be responsible for the work Mr. Altman performed towards an appeal before Mr. Myers substituted counsel and withdrew the appeal.

Here is a toothsome [sorry] case in which dentists, turned lawyers are now accused of legal malpractice in a dental malpractice case.

Their mistake?  Not asserting loss of income in the BP.  The result?  A pain and suffering verdict of     $ 260,000  but nothing for loss of income.  From the New York Law Journal:

"A jury should determine if two lawyers who are also dentists committed legal malpractice in a case brought against another dentist, a federal judge has ruled.

Southern District Judge Gerard Lynch held that attorneys Marc Leffler and David J. Sokol, who are both qualified dentists, are not entitled to summary judgment in a suit alleging they failed to include in a bill of particulars a client’s claim for hundreds of thousands of dollars in lost earnings"

"The judge said there is "a genuine issue of fact as to whether Diamond would have been foreclosed at the point of Leffler’s departure from being able to pursue lost earnings and future medical expenses by amending her claims."

"Michael Furman and Andrew R. Jones of Kaufman Borgeest & Ryan represented Mr. Sokol.

William T. McCaffrey of L’Abbate, Balkan, Colavita & Contini in Garden City represented Mr. Leffler and his former firm, Leffler & Kates."

 

Plaintiff in Legal Malpractice Case was a defendant in a personal injury case.  He says the case could have been settled for $ 35,000 when the injured party’s attorney made a demand.  His attorney, without asking junk yard owner, rejected the demand and went to trial.  Result ?  Junk yard owner paid more, and now sues attorney.

"The owner of an Alton junkyard filed a legal malpractice suit against his former attorneys in Madison County Dec. 22, claiming they negligently failed to settle a case for $35,000, which led to a settlement that caused him to pay $155,000 more than he should have.

Ken Edwards of Ken’s Auto Sales claims Raymond Stillwell and Nathan Anderson represented him after an employee, John West, suffered extensive injuries to his face on Dec. 3, 2003, when a multi-piece tire rim came apart striking West in the face.

According to the complaint, Edwards did not have workers’ compensation insurance at the time West received his injuries and retained the defendants to represent him in West’s personal injury suit.

He claims during the course of the litigation, West’s attorney, John Gibson, offered to settle the case for $35,000, but claims Stillwell and Anderson never told him about the offer and then withdrew as attorney of record in the personal injury case. "  The case

It’s not entirely clear how the relationship between Attorney Fishkin and Marlow arose with Attorney Taras but it appears that Taras referred cases to Fishkin, or Fishkin was hired by Taras to work on the cases.  many settled, but Fishkin and Marlow were not paid.  They sued Taras for legal fees and lost on the basis that they did not file retainer statements with the Office of Court Administration within 15 days.  This rule applies in the 1st Department for contingent personal injury cases.  See Justice Edmead’s decision today.

"DEFENDANT ATTORNEY moved for summary judgment in this fee dispute with plaintiff attorneys, who claimed they were hired as outside counsel by defendants under an oral agreement to render legal services on personal injury cases in which defendants were retained by a client on a contingency fee basis. Defendants argued plaintiffs failed to file retainer statements in all nine of their claims under 22 New York Codes Rules and Regulations §603.7(a)(3), precluding them from recovering any legal fees. Plaintiffs argued the filing of a retainer statement was not a condition precedent to receiving a legal fee. The court stated an attorney who was retained by another attorney on a contingency fee basis in a personal injury action must file a retainer statement with the Office of Court Administration within 15 days of being retained. Thus, it stated as retainer statements were not timely filed in three matters and in the absence of proof retainer statements were timely filed in the remaining six claims, those actions could not be maintained, granting defendants’ motion. "