“The first stone” analysis in this case is facinating. Legal malpractice action brought because plaintiff believed his prisioner beating municipal case was time barred. His attys did not bring the action at all. In Legal Malpractice case Judge now dismissed, saying:
“While, generally, suit must be initiated against a municipality and its agencies within one (1) year and ninety (90) days of the claim’s accrual (see, GML §50-i), the tenor of the underlying claim concerns the asserted deprivation of the claimant’s civil rights (see, 42 USC §1983). The limitations period applicable thereto is three (3) years from the date of accrual. (see, Okure v. Owens, 625 F Supp 1568, affd 815 F2d 45, affd 488 US 235; Perez v. County of Nassau, 294 F Supp 2d 386 [ED NY 2003]; Bidnick v. Johnson, 253 AD2d 779)

Inasmuch as the underlying claim remained viable for an extended period following the return of Mr. DiBenedetto’s file, the defendant’s failure to file suit cannot reasonably be construed as a proximate cause of a compensable injury. (see, generally, Ramcharan v. Pariser, 20 AD3d 556; Albin v. Pearson, 289 AD2d 272; C & F Pollution Control, Inc. v. Fidelity and Casualty Company of New York, 222 AD2d 828 [3d Dept.])”

So, this is a legal mal upon a legal mal upon a legal mal. Details.

Within the body of this legal malpractice case is a very interesting nugget. Suit against the opponent’s attorney may be permitted upon a showing of “malicious intent” even though there is no privity of representation [i.e. privity of contract.] A AD cite is given for this proposition, Poulson, 26 AD3d at 525.

Restaurant chain takes $25 a paycheck from employees for legal applications in immigration and hires law firm. Law firm fails to file papers, employees now must leave US for 10 years, being “out of status.” They sue, but only for monies taken; no hope of becoming US citizens. Question: Can they sue for legal malpractice when the attorney is hired by employer? In union attorney situation, the answer is usually no. Details.

They say that it’s not how much you make, it’s how much you keep that really counts. The same is true of settlements or judgments. Tax treatment of legal malpractice awards changes depending on the source or identity of the settlement funds. Here is an article on how legally to maximize settlement tax treatment, and a link to the IRS manual on this issue. Link

As one commentator said, its odd that the attorney-client privilege is broken only when the attorney is sued for Legal malpracitce. However, it is less than clear how the ‘at use” principal plays into legal malpractice litigation.

Here is a case where the defendant attorney wants information from the successor or suing attorney which will help the defendant on a staute of limitations argument [loss of faith in the defendant might start the statute running]. In this Ohio case defendant attorney was not permitted the communications. Details.

Legal Malpractice representation often requires examination of the retainer agreement. Here is an interesting case on the issue.

“A provision of a retainer agreement requiring a client to pay her lawyer’s costs in the event of a successful fee collection action has been voided by a Manhattan appellate court as against public policy.

Patricia Dow hired attorney Jeffrey Ween in 1998 to represent her in a dispute with her co-op board over her right to sublet a commercial studio and over water leaks in the NoHo building as well as disturbances from a ground-floor garage. The matter settled in March 2003. Ween sued in July 2004 for more than $74,000 in allegedly unpaid legal fees.

Ween’s retainer agreement stated: “If client fails to pay for charges due under this agreement and the law firm takes legal action and is awarded such charges, client shall owe to law firm costs, expenses and attorneys’ fees (including but not limited to the reasonable value of the law firm’s own work) attributable to law firm’s collection proceedings and/or action.”

But the Appellate Division, 1st Department, said last week in Ween v. Dow, 110972/04, that “such a provision is not entitled to judicial sanction and is, therefore, unenforceable.”

NJ.Com reports the following case: Liberty Surplus Insurance Co., Inc. v. Nowell Amoroso, P.A.
“In 1993, owners of the nightclub Scandals claimed it had failed because of harassment by East Orange police. The law firm Nowell Amoroso won a $400,000 verdict on behalf of the nightclub but it was thrown out on appeal because the lawsuit was filed after the statute of limitations had run.

A month later, Nowell Amoroso took out legal malpractice insurance with Liberty Surplus. In June 2003 – 11 months after that policy went into effect – it was sued for legal malpractice by the owners of the nightclub. Liberty Surplus said it did not have to cover the claim because the law firm should have seen it coming when it applied for insurance. An appeals court agreed, and the law firm appealed to the high court.”

Contributed by Robert Schwaneberg

Mark Twain coined the phrase, and it remains true today. “An attorney who represents himself…” Anthony Lin in the New York Law Journal tell us:

“A Manhattan Housing Court judge has sanctioned a well-known real estate lawyer who withheld maintenance on his own Park Avenue co-op for lying “repeatedly and without shame” in a 2005 nonpayment proceeding.

The co-op board of 1050 Park Avenue brought an action against attorney Steven R. Lapidus in 2004, claiming he was illegally withholding maintenance payments in violation of a 1999 stipulation that settled an earlier nonpayment action.

But Mr. Lapidus claimed at his 2005 nonpayment trial that he did not know about the 1999 stipulation and could not be bound by it. He said his lawyer at the time, a former associate at his firm, had executed the agreement without his permission and never informed him about it.

Housing Court Judge Gerald Lebovits (See Profile) called Mr. Lapidus’s claims “unbelievable” in sanctioning him $10,000 for making a frivolous misrepresentation. In a decision issued last week, the judge also said the matter would be reported to the Departmental Disciplinary Committee.”

Here is a legal malpractice case which ends in an award to the client, as well as a disciplinary finding against the attorney.

“Nearly six months after he drafted a client’s divorce agreement in 2001, attorney Bruce Beck knew he had made a mistake in its wording. He first realized the problem after a hearing in the case during which new financial information was presented by his client.

Beck, of Beck & Eldergill in Manchester, Conn., alerted his malpractice insurance carrier, with whom he carried a $1 million policy, and prepared for a claim from the client, who lost his entire retirement fund to his ex-wife as a result of Beck’s mistake. Beck “intended to assert a comparative negligence defense” against his client, Dr. Jeffrey R. Breiter of Manchester, for lack of care in providing the necessary financial statements.

But according to a conditional admission and disposition agreement approved by Connecticut’s Statewide Grievance Committee, Beck failed to communicate his intent to either Breiter or the attorney to whom he subsequently referred Breiter’s case, John F. Droney of Levy & Droney in Farmington. In addition, Beck failed to inform SGC officials of the existence of the recently disclosed financial material.”
“Breiter, a gastroenterologist, surrendered approximately $500,000 to his ex-wife in the settlement, $66,000 of which came out of his own pocket, “to fulfill the terms as negligently drafted by [Beck],” according to King’s written statement. As a result of a settlement in the legal malpractice claim, Breiter received $434,000 from Beck’s malpractice carrier.”