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.”

Legal Malpractice insurance coverage is generally a “claims made” type. Here is a typical case, now in the NJ Supreme Court. The issue is whether a claim, within the policy period, is covered. Ins. Co. says no, the events took place prior to policy period. Attorney says yes, claim came during policy, and I had no real reason to know the suit would come later. Details.

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”

This Illinois case, reported by Jerry Megne and Cassandra Crotty of the Illinois Legal Malpractice Blog, shows the interaction of three limitation periods, and the resultant vital legal malpractice case which arose from a botched medical procedure followed by a botched legal proceedings. Tolling for infancy, the statute of limitations and the statute of repose all end with a important finding: In Illinois an attorny may not sit back, keep the mistake to himself, and wait out the S/L. Details.

In general, privity is required before an attorney may be held liable in legal malpracitce. Sometimes, the attorney may be held for advice, especially opinion letters, to 3d parties, who did not hire the attorney, but relied upon the advice. Here is a case, reported by the Hinshaw firm, which restates the principal.

Mega Group, Inc. v. Pechenik & Curro, P.C., 819 N.Y.S. 796 (2006)
The court held that while the opinion letter provided in this corporate transaction did create a duty to the third party purchaser, the duty was not violated when the opinion letter contained only the information requested in the sales agreement and did not address the issue in controversy.

The Hinshaw memohttp://www.hinshawlaw.com/knowledge/alert_detail.aspx?id=973&type=5303

This is always a hovering problem. In NY there is no effective way to determine whether the target attorney has coverage prior to bringing suit. When the target has no legal malpractice coverage, one may expect any amount of twisting and turning to avoid the claim. Bankruptcy is possible, and I have had three cases end there. Here is a case and article from West VA where the attorney successfully avoided the claims, and was disbarred. Details.