The New York Attorney Malpractice Blog and Andrew Lavoott Bluestone has been awarded First Place in the Hewlett Packard Law Technology contest for its innovation over this past year.

The award is for the use of digital technology at the Bluestone Law Firm and in the Blog. The New York Attorney Blog uses LexBlog to reach its readers

Paul J. Israelson writes in todays NYLJ about a pitfall, which while well settled and recognized, is often overlooked. If plaintiff files for bankruptcy, in any chapter, between the date of the malpractice and the inception of the legal malpractice case, the cause of action really belongs to the bankruptcy estate, which is controlled by Trustee in Bankruptcy and no longer by the plaintiff. Details

“If it is the case that the plaintiff filed for bankruptcy under Chapter 7 or Chapter 11 of the Bankruptcy Code (but not Chapter 13) during that same period, I then determine whether or not the plaintiff’s cause of action for malpractice was listed as an asset when filing for bankruptcy. In the event the plaintiff did not list his claim for malpractice as an asset when filing for bankruptcy (which is often the case), then the plaintiff will not have standing to pursue his malpractice claim”

One possible remedy is to seek Bankruptcy Court approval to amend the schedules to add the cause of action, and then seek a “sale” of the asset by the trustee.

Lexis reports that:

Sunday, January 22, 2006

Law Firm Wins Judgment In Legal Malpractice Action Over Sauer Verdict

LITTLE ROCK, Ark. — A federal judge has found that a law firm representing a defendant in the record-setting Advocat Inc. v. Sauer verdict is not liable in a legal malpractice action seeking $10 million in damages (Great American Insurance Co., et al. v. Dover & Dixon, P.A., et al., No. 4:04-cv-00582, E.D. Ark., Western Div.; 2005 U.S. Dist. LEXIS 32611).

Although not entirely on the point of legal malpractice, here is a blog entry about Legal advertisin and legal malpractice by Allison C. Shields in her Legal Ease blog.. Here, plaintiff sued attorney for early and insufficient settlement, alleging that attorney advertised its quality and high settlements, along with legal malpractice.

Here is a case of a recently vindicated convict. He was convicted of murder, and served many years in jail. His case was remanded, and dismissed on the basis that there was insufficient evidence that the child who died was murdered; it may have been an accident. It is said in the news article that the vindicated plaintiff has a legal malpractice law suit. Issues are statute of limitations and whether California law requires a demonstration of innocence or simply that the conviction was reversed. Details.

“But for” is probably the hardest part of a legal malpractice case. Plaintiff must prove that except for the mistake of the attorney, it would have won the case. This requirement often comes up against a fact based argument that on the last day of representation by the now defendant attorney, the case was still viable, and was lost, not solely because of mistakes of the defendant attorney, but for other reasons. Here is a blurb from Chicago.

Insurance Week Blog reports this 6th Circuit Legal Malpractice statute of limitations case which points out the difference between a “discovery” statute and a “event” statute. Plaintiff wanted the statute to start running when she found out about the mistake, the court determined that it began to run when the mistake was made. Details. This situation often arises in transactional work, for example, mistakes made at a real estate closing, which do not become known for several years later. In New York there is no “discovery” statute, and the only extending doctrine is that of “continuous representation.”