Good cause for termination is not the same as malpractice. Attorney malpractice, the deviation from good and accepted practice, which proximately damaged the party, in which, but for the negligence of the attorney there would have been a different or better result is not the same as good cause for termination. Termination for cause has arisen in many situations in which malpractice was not even discussed, much less claimed. Substantial delays in prosecuting the case, failure timely to obtain medical records, failure to retain an employment [which] contravenes specific legal requirements is sufficient, abandonment of a case, a conflict of interest, a refusal personally to try a case, a failure to disclose a settlement offer, are all examples of misconduct which does not amount to malpractice.

The difference flows logically from the question of damages. In malpractice there is a positive claim for damages, over and above fee considerations from the attorneys; in the question of termination for cause, there can be but a reduction of the fees paid, but no positive claim for damages. As one might expect, the burden of proof for malpractice requires much more than the burden of proof to decide between “good cause” and “no cause.”

“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.”