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Representative Cases and Matters for Legal Malpractice

Legal Malpractice - Mishandling Client Funds - Attorney's Improper Use & Distribution of Settlement Funds

Recovery of over $300,000 Owed to Disabled Woman on Attorney's Improper Use & Distribution of Settlement Funds

McCarthy Fingar's lawyers are sometimes retained to recover funds from lawyers who improperly fail to give their clients moneys due them. In 2008, McCarthy Fingar partner, Joseph Brophy, who leads the firm's Legal Malpractice group, was contacted by the grandmother of a disabled young woman. The grandmother had recently been appointed as guardian by the court in place of the young woman’s parents, who were squabbling over control of money that had been awarded to their daughter in settlement of a lawsuit several years before. The grandmother was concerned that the father may have misappropriated $125,000 of her granddaughter’s money that had been entrusted to him by the court to help pay for housing for the granddaughter. The grandmother had asked the court for information, but had been told that the settlement papers were sealed. She retained Joe to apply to get access to the sealed settlement documents. The prior attorneys were uncooperative and Joe had to bring on a special proceeding to obtain the settlement documents. When he did obtain them, Joe learned that the attorneys had released $125,000 to the father in violation of a court order requiring the father to file a security interest in the house he was buying, to protect his daughter’s funds, before the money was released. After buying the house, he had then mortgaged it twice, so the $125,000 had in effect gone into the father's pocket. Joe also learned that the former lawyers had been awarded hundreds of thousands of dollars by the court for expenses in anticipation of a trial that had never taken place, and that they had never accounted to the court or their clients for any of that money. After Joe filed a legal malpractice claim against the attorneys and brought on an application for contempt against the lawyers and the father, the lawyers pressured the father to place a lien upon the house, accounted for the funds, and refunded over $177,000 to Joe’s client. The father eventually sold the house and paid back the $125,000 he owed to his daughter.

Legal Malpractice - Jury Trial & Settlement - Effective Cross Examination

Legal Malpractice Case Settled During Trial & After Effective Cross Examination

Successful settlements often only happen during a trial, and just before a jury verdict. This legal malpractice matter was jointly tried before a jury by Joel M. Aurnou and Joseph J. Brophy. The allegation was that the our client’s matrimonial lawyer had failed to identify an expert witness in time, forcing her to settle her matrimonial case for a fraction of its true value. To add insult to injury, her former lawyer then sued her for unpaid attorney’s fees. She retained McCarthy Fingar, and counter claimed for legal malpractice. The case only went to trial after Joel Aurnou and Joe Brophy had defeated two attempts by the lawyer to have the counterclaim dismissed. At trial, after three days of cross-examination of the defendant attorney by Joel, the insurer added $500,000 more to its settlement offer that permitted the case to end very favorably for our client.

Legal Malpractice - Appellate Practice - Restoration of Case Dismissed for Prior Attorney's Failure to Prosecute

Lieber v. Vitelli, 270 A.D.2d 396 (2d Dep't 2000)

Sometimes, lawyers fail to identify and pursue a claim that should have been brought for a client; and sometimes the trial court makes the wrong decision when a legal malpractice claim is filed. Here, Joseph J. Brophy obtained a reversal from the Appellate Division, Second Department, on a legal malpractice action brought against an attorney for a failure to prosecute a claim for a client. The malpractice claim had been wrongly dismissed by the trial court.

Appellate Practice - Legal Malpractice - Paternity - Motion to Dismiss

Savattere v. Subin Associates, PC, 261 A.D.2d 236, 690 N.Y.S.2d 229 (1st Dep’t 1999)

When a lawyer is sued by his client, the invariable first legal battle is a motion to dismiss the legal malpractice claim. In Savattere, Joel M. Aurnou persuaded the trial court to deny the defendant’s motion to dismiss the legal malpractice claim. Then, Joel persuaded the Appellate Division, First Department, to unanimously affirm the lower court decision on the appeal. Afterwards, Joel settled the case for his client very favorably.

Appellate Practice - Legal Malpractice - Motion for Dismissal - Enforcement of Settlement

Wolstoncroft v. Sassower, 124 A.D.2d 582, 507 N.Y.S.2d 728 (2d Dep’t 1986); 212 A.D.2d 598, 623 N.Y.S.2d 7 (2d Dep’t 1995); 234 A.D.2d 540, 651 N.Y.S.2d 609 (2d Dep’t 1996)

One example of legal malpractice is a lawyer's failure to bring or defend against a lawsuit. In Wolstoncroft, a lawyer had failed to defend a lawsuit brought against a client. But then, when the legal malpractice was brought for his client by Joel M. Aurnou, the lawyer then sought to dismiss the claim. Joel persuaded the trial court to deny the motion, and the Appellate Division, Second Department, unanimously affirmed the lower court decision. Later on, when the case went to trial, Joel settled the legal malpractice claim during jury deliberation at the trial. Even later, Joel brought on a proceeding to enforce the settlement.

Legal Malpractice - Action Against Former President of American Trial Lawyers

Olesker v. Dempsey

Lawyers must never forget their solemn duty to protect their clients' rights, even if it means bringing claims against prominent lawyers who have commited legal malpractice. Her, Joel M. Aurnou successfully sued a former president of the American Trial Lawyers on a legal malpractice claim. Joel recovered for the client the full amount demanded.