The Case: employment discrimination in a restaurant. The Claim: employee raped by employer. The outcome: a $ 400,000 sanction against her attorneys, set by district court Judge. Magistrate who heard the evidence in support of sanction recommended against sanction. Judge simply disregarded the recommendation. Appellate Court: Judge should have re-heard testimony before simply disregarding the magistrate. Details.

These new rules do not have a direct bearing on legal malpractice, nor do they arise from a legal malpractice case, but they do have the potential to pop up in a legal malpracitce case some months from now. The gist of new rules? Motions with a request for a TRO require specified statements by the maker, and will fail without those statements. The same court notes also contain the new deposition and insurance company settlement rules. Rules.

As we have written many times, legal malpractice claims medical malpractice as its father. Here is an article from the master practitioners in Medical Malpractice, Tom Moore and Matthey Gaier, writing about how to investigate and litigate a case where the physical condition of the doctor is relavant. The physical condition [medication, physical condition, psychological condition] of a defendant attorney may well be relavant. Here, from the NYLJ, is their article on how to discover these important facts. Article.

A little known principal in Legal Malpractice is the issue of privity when client is represented by union paid attorneys. An example would be a union member who is represented by an attorney paid for by the union in a disciplinary matter. There is a long line of cases which hold that there is no privity here, and that the client may not sue the attorney when the union hires and pays for the attorney. Here is another example, abliet in a headline catching situation from the NYLJ. by Tom Perrotta.

“Captain of Ill-Fated Ferry Loses Bid to Regain Job

Michael J. Gansas, the captain of the Staten Island ferry that crashed in October 2003, killing 11 passengers, yesterday lost his bid to regain his job after a federal judge in Brooklyn dismissed his suit against New York City and his union, the Marine Beneficial Association. Mr. Gansas claimed the city had denied him his due process rights and that his union attorneys had breached the duty of fair representation by mistakenly waiving his right to arbitration because they believed Mr. Gansas had pleaded guilty to a crime (he has not). Writing in Gansas v. City of New York, 05-CV-5484, Eastern District Judge I. Leo Glasser ruled that Mr. Gansas’ due process claim was “hollow” because the city’s efforts to interview him immediately after the Andrew J. Barbieri crashed were warranted, “and the seriousness of his failure to participate in those interviews cannot be overstated.” The judge granted summary judgment to the union on Mr. Gansas’ second claim because it was filed after the six-month statute of limitations. The decision will be published Friday.”