It is the general rule in the United States, and New York that the client, either for good cause or for no cause, may terminate an attorney’s representation at any time. While the difference between “for cause” and “no cause” has been endlessly debated, a “for cause” termination may be based upon misconduct which does not rise to the level of attorney malpractice. Continue Reading Legal Malpractice and Termination for Cause

The Sioux City Journal reports that an Omaha law firm has been found liable in a Legal Malpractice case arising from commerical advice concerning the operation of casinos. “The jury ruled that attorneys James D. Wegner, William F. Hargens and the firm did not fulfill their duties to properly advise Bellino about how to separate from his business partner before opening another business.” Continue Reading Big Verdict in Omaha Legal Malpractice Case

Two cases are reported this week.

Conti v. Frank, 2005 NY Slip Op 7615; 2005 N.Y. App. Div. LEXIS 10971, October 18, 2005, Decided, October 18, 2005. Plaintiff’s complaint for legal malpractice based on the failure to sue a physician [apparently as well as the hospital] was dismissed on CPLR 3211 grounds. The court implied that a medical malpractice case against the physician’s hospital employer negated legal malpractice for failure to sue the physician individually.

Rosato v. Zuchlewski, 2005 NY Slip Op 7809; 2005 N.Y. App. Div. LEXIS 11228, October 20, 2005, Decided, October 20, 2005 comes from “secret” negotiations in an employment discrimination case alleged to have caused plaintiff injury. The court denied dismissal on the stated facts.

It is the general rule in the United States, and New York that the client, either for good cause or for no cause, may terminate an attorney’s representation at any time. While the difference between “for cause” and “no cause” has been endlessly debated, a “for cause” termination may be based upon misconduct which does not rise to the level of attorney malpractice. Continue Reading Legal Malpractice and Termination of the Attorney

With all the social issues concerning the nomination of a new Supreme Court judge it is interesting that the Legal Malpractice connection of this particular nominee is not going away. A report in Centre daily.com relates that Miers’ firm Locke Liddell not only settled legal malpractice cases for more than $ 30 million, but that she personally sat on the board of her firm’s own malpractice insurer, Chicago-based Attorneys’ Liability Assurance Society.

The fifth group arises from the failure to proffer necessary documents. The opponent to a summary judgment motion must offer admissible proof that a question of fact exists. The opponent of a threshold motion must offer the affidavit of a physician setting forth objective proofs of the injury. The proponent of a motion to restore a case marked off must offer an affidavit of merits. A motion to vacate a dismissal must contain an affidavit of merits. A motion to vacate a default requires both a reasonable excuse for the default along with an affidavit stating a meritorious cause of action or defense. The simple failure to append these documents may constitute malpractice.

The sixth group arises from less well-defined acts. Te failure to sue a specific individual, the failure to add certain claims to the complaint, the choice of witnesses, the choice of evidence to include on a motion or at trial, the failures of discovery, investigation, questions at deposition, the choice of expert, the offer of proof at the trial. Deviations from good and accepted standards in these areas can lead to malpractice, but they fall within the question of strategy. A reasonable choice of strategy, reasonable both objectively and subjectively will not be held to constitute negligenceThe seventh group arises from attorney’s wrongful acts of self-interest and conflict of interest. Representation of both parties in a divorce is dangerous, and becoming a partner with a client in a business is not permitted.

At the bottom of the list, but sadly familiar to potential malpractice plaintiffs are failures to communicate with the client. The failure to communicate gives rise to more inquiries by former clients than almost any other reason.

There is a hierarchy of legal malpractice mistakes, recognizable by even a layperson. At the head of the list is the failure to start an action, whether a result of failure to file a notice of claim under the General Municipal Law, The Public Authorities Law, the Court of Claims act, or other claim-notice acts. That failure may be a result of failing to file the summons and complaint, or failing to purchase a new index number for the complaint. This group of “failing to file” the case is easily recognizable to the lay juror.

The next group consists of failures consists of serving the wrong defendants, failing to obtain jurisdiction over the person, failing to serve an adequate complaint or filing a complaint after the statute of limitations has run. These failures too, are easily recognizable.

The third group arises from calendar control problems and failures to appear on status conferences, clerk’s calls, pre-trial or pre-calendar conferences, and appearances in TAP or the Jury Coordinating Part.

The fourth group arises from other calendar control problems, not created by a failure to appear in court. A case marked off calendar by a party, must be restored within 1 year. A default judgment must be taken within one year. An order must be settled within 60 days or abandoned. A motion to renew or reargue must be made within 20 days, a motion to dismiss for lack of personal jurisdiction must be made within a short time period. A 90-day notice requires a response. A notice of appeal must be filed within 30 days. An appeal must be perfected within the department’s time period.