LEGAL MALPRACTICE AND ETHICS FOR TRIAL LAWYERS
by Joseph Brophy
INTRODUCTION – perspectives from the plaintiff’s lawyer, the defense lawyer, and the judge. The boundaries between malpractice and ethical violations may be indistinct at times. Ethical violations can lead directly to denial or disgorgement of attorneys fees, and indirectly to malpractice and liability to the client for damages. Lawyers who are strongly committed to ethical practice and clearly understand their ethical obligations will usually avoid the most costly forms of malpractice. An analysis of recent decisions in legal malpractice cases illustrates both the practice pitfalls to avoid, and strategies for successfully representing plaintiffs in actions against attorneys.
ETHICAL PITFALLS AND WHAT TO DO IF YOU FALL IN
THE THIRD RAIL – Bounce an escrow check and see what happens. Escrow means it’s not your money- Rule 1.15. And, what don’t you understand about commingling?-
Matter of Salo, 77 A.D. 3d 30 (1st Dept. 2010)-Attorney misappropriated third-party escrow funds, earmarked for a lien, from his ILOA account, later replacing the funds and paying the lien. He also issued a check to a client from the ILOA account made out to “cash.” Psychiatric testimony established that the attorney had been suffering from severe PTSD, depression and alcohol abuse triggered by the 9/11 attacks; he had very limited access to his office due to its location for a long time; and he thought he was using a “cushion” of personal funds from the IOLA account, to pay himself. There was no evidence of any venal intent in the conversion of funds. Attorney was suspended for one year.
Matter of Kressner, 72 A.D. 2d 112 (1st Dept., 2010)- Attorney admitted commingling his personal funds with client funds in his escrow account to conceal assets and income from the tax authorities. He only used his IOLA account for business and personal purposes. He utilized lending companies for advances on his legal fees and relied on their accounting records instead of keeping an escrow ledger. He was found guilty of professional misconduct immediately threatening the public interest, and placed on interim suspension pending conclusion of disciplinary proceedings, although there was no proof any clients had lost money up to that time. He subsequently resigned from the bar.
Matter of Francis 78 A.D.3d 106 (1st Dept. 2010) –Disciplinary investigation was triggered when a $30,000 IOLA check was dishonored. Audit revealed that the attorney kept personal funds in the account as a “cushion” against overdrafts, and failed to keep an escrow account ledger. The shortfalls in the account were caused by making payments on account of his clients and returning fees to assist his clients financially. No clients lost money as a result of his conduct. As a result of his lack of sophistication, good intentions, and sincere remorse, he was censured.
WE’RE ALL PARTNERS HERE – Rule 5.1 says we are all responsible to oversee the escrow account – and the other lawyers in the firm.
Matter of Maroney, 259 A.D. 2d 206; Matter of Spencer, 259 A.D. 2d 218; Matter of Ponzini, 242 A.D. 2d 142 (2d. Dept. 2000), modified 268 A.D. 2d 478 – In 1982, Maroney, a partner in the firm of Maroney, Spencer and Ponzini, handled two real estate closings for a legal secretary with whom he had a “close personal relationship.” Maroney paid the secretary $14,000 more than had been deposited on her behalf, from the firm’s escrow account. The defalcation went undiscovered by Maroney’s partners for eight (8) years, until the account balance fell below zero in 1990. An investigation ensued, and the Appellate Division adopted the Committee’s recommendation that Maroney should be disbarred for converting escrow funds, and the other two partners should be disbarred for failing to oversee the recordkeeping of the escrow account. Disbarment was imposed on Spencer and Ponzini despite their previously unblemished records, and the fact that they had been the “innocent” partners in this debacle. On reargument, the Court modified Spencer and Ponzini’s discipline to one year’s suspension because there had been no financial loss to any clients, and Ponzini had I fact reported the theft when it was belatedly discovered.
CHASING – Rule 7.2, Judiciary Law §479, §482.
In re Katzka - 225 AD 2d 250 (2d Dept. 1929) -the second oldest violation? Paying laymen to procure accident cases leads to two year suspension. The fact that it was a prevalent practice at the time does not change the general rule that “the lawyer who engages in ‘ambulance chasing’ disqualifies himself from the practice of law.”
Matter of Ravitch, __A.D. 3d __ , 2011 WL 781209 (2d Dept., March 2011) –variation on an old theme: a medical report is not just a medical report when paying for the medical report gets you a referral from the clinic. The clinic guy testified that he was actually auctioning off cases to the highest bidder. Fortunately for the lawyer, the hearing panel did not credit this testimony, so the lawyer got off with just a three month suspension, despite having pleaded guilty to a violation of Judiciary Law §479.
LITIGATION FUNDING –this practice is increasingly prevalent. Using litigation funding is neither illegal nor unethical in itself, but it seems to be at least a factor in a number of reported ethical and legal problems attorneys have gotten into. The lesson is not, don’t do it, but rather, don’t do it for the wrong reason. Rule 1.7 warns against representing a client if there is a significant risk that the lawyer’s own interests will be adversely affected. When you use litigation financing or your clients do, understand the risks to you, and explain the risks to them.
In re World Trade Center Disaster Site Litigation- NYLJ 3/14/11-Court appoints ethics counsel to supervise WTC settlement citing concerns about financial pressures on plaintiff’s counsel who had borrowed very large sums of money to finance a 10,000 plaintiff litigation, raising issues whether the attorney’s financial interests could affect their judgment in recommending the settlement. (more on this matter below)
Former Client Blames Firm for ‘Usurious’ funding of Suit -NYLJ 3/15/11 – former client files suit against funding company whose $30,000 advance has grown to as much as $800,000 over 7 years. He also named his former attorney, alleging that even though he had the client sign a letter stating that he had been advised that it “was not in his best interest” to take the advance, and he was doing so “against my lawyer’s advice,” his lawyers had failed to explain to him that taking the loan was against his interest.
HONESTY IS THE ONLY POLICY – Rule 8.4 (b)
Matter of Cousins, 80 A.D. 3d 99 (First Dept., 2010) –attorney persuaded his brain-damaged medical malpractice client to sign a litigation funding agreement for the disbursements of his case at 15% per year. Not incidentally, attorney was heavily indebted to several litigation funding companies for hundreds of thousands of dollars. When the medical malpractice case finally settled in excess of $4 million, the attorney advised his client that the fee was one third of the net recovery, subject to court approval. The client was then asked to, and did, give the attorney a check for the amount the attorney requested as a fee, with the memo “gift.” (A violation of Rule 1.8(b) on its face). Meanwhile, the attorney had assigned a $666,666 interest in the fees on another portion of the settlement to two funding companies, apparently in violation of a priority collateral agreement with a third. Litigation was commenced by the funding companies, of course. Justice Heitler ultimately denied the application for the increased fee, and directed the attorney to return the overcharge. He did not do so, and filed for bankruptcy. The attorney was disbarred. One reason given was his failure to show remorse, which seems superfluous to mention on this record.
Matter of Vitelli, 247 A.D. 2d 9 (2d Dept., 1998)- The attorney was found to have notarized the forged signature of the client on litigation documents. There was insufficient evidence to prove that the attorney had forged it. The client also taped conversations with the attorney in which he asked the client for money to “pay off” a clerk to enter a default judgment based on the forged legal papers, and later falsely told the client that the sheriff had collected $25,000 on the bogus judgment. The attorney was disbarred.
Matter of Cellino, 21 A.D. 2d. 229 (4th Dept., 2005) – attorney violated prohibition of granting financial assistance to a client beyond the expenses of litigation. The lawyers had arranged to establish their own funding company through Cellino’s cousin, and failed to disclose their financial interest in the company to borrowers. For these and numerous other ethical violations, including filing a false retainer statement, Cellino was suspended for six months and his partner Barnes was publicly censured.
Matter of Friedman, 196 A.D. 2d 280 (1st Dept., 1994)- Grievance was precipitated by a letter of complaint from D.J. Leval after misconduct during a trial. The Federal investigation was ended with an admission that Friedman, a pre-emininent member of the plaintiff’s bar, had made statements with reckless disregard for their truth or falsity and had filed an affidavit without person knowledge of its contents; he was censured. The First Department then commenced a reciprocal proceeding and Friedman was found to have committed fourteen counts of dishonest behavior including filing a false affidavit, making false statements under oath, splitting fees with a non-attorney, and soliciting false testimony. He was disbarred.
A recurrent theme- the lawyer who has an excuse for misconduct and expresses remorse, has a good chance to avoid the most extreme sanctions. Those who compound their misconduct with arrogance and denial are most likely to get their tickets punched.
CONFLICTS- IT’S NOT JUST PASSENGERS ANY MORE – Rules 1.7 ff.
Tavarez v. Hill, 23 Misc. 3d 377 (Sup. Bronx, 2009) – Justice Victor, sua sponte, stayed a motion for summary judgment on the basis that representing the driver and three passengers in the same vehicle is not necessarily a good idea. In fact, it is presumed to be a conflict of interest notwithstanding waiver and consent by the clients. Even the “possibility” or “appearance” of conflict is prohibited. J. Victor also reminds us that even in the most routine auto accident case, the consequences of a conflict can include fee forfeiture. The parties were directed to appear for a hearing on the conflict issue. Thereafter, the summary judgment motion was decided and the case settled. The court record does not show that the plaintiff’s attorney was substituted out, so presumably they dodged the bullet.
In re World Trade Center Disaster Site Litigation- NYLJ 3/14/11 – (continued) The other reason that the Court assigned ethics counsel was that of approximately 10,000 plaintiffs represented by the attorneys, they decided not to count 56 of them who had opted out of the settlement, presumably because they had accepted VCF funds, unlike the other 9944. It was undoubtedly a coincidence that had the 56 been included in the group, required to approve the settlement, the 95% threshold would not have been reached and the entire settlement would have fallen apart. The court cited Rules 1.7(a)(2), 1.8(g) in its decision. This case should be considered in light of the long string of citations in Tavarez about fee forfeiture.
NOTE- the only reason attorneys representing mass tort victims are not barred from doing so by conflict rules is that in all such cases the Court determines the distribution of an aggregate settlement. Rule 1.8(g) also permits informed consent to such a settlement in a writing signed by the client, but the Courts are liable to give such writings little weight. As we see in this instance, the courts, and especially the Federal courts, tend to scrutinize mass tort settlements very carefully.
OTHER WAYS NOT TO GET PAID YOUR FEE
Chen v. Chen Qualified Settlement Fund, 552 F. 2d. 218 (2d Circuit, 2009)- District Court did not abuse its discretion in denying counsel’s request for attorney’s fees in its entirely, where Court determined that counsel violated New York disciplinary rules by purposely requesting a fee in excess of the statutory maximum by $20,000 in a $2.4 million settlement. The Court begins by drily observing that “this case is instructive with respect to the nature of the conduct that may merit the denial of an attorney’s application for fees.” Counsel failed to provide any documentation detailing what he did, what his disbursements were, what the infant’s medical condition was, what the projected future medical expenses would be, or an expert report on which the district court could rely in assessing the reasonableness of the settlement. This criticism was based on the report of an experienced medical malpractice attorney was appointed as special master to evaluate the settlement after counsel repeatedly ignored the Court’s requests for further documentation to support the application. The District Court excoriated the attorney, and denied his fee application in its entirety. The Court of Appeals held that the fact finder’s view of the evidence was not clearly erroneous and there was a sound basis for the determination that the attorney had committed misconduct.
Rodriguez v. Custodio, docket No 08-4966-cv (2d Circuit, 2010)– The originating attorney had performed no documented services, and had referred the case to the attorney of record on a 65%-35% fee split. No writing was given to the client ( See, Rule 1.5, formerly DR 2-107). The attorney of record agreed to a 2/3 – 1/3 split of that 65% with trial counsel. The case was settled for $975,000 and came before Magistrate Judge Mann for an infant’s compromise. At the compromise hearing, the judge sua sponte questioned whether the referring attorney could share in the attorney’s fee. When the plaintiffs were questioned about the referring attorney they could not even recall his name. He could not show that he had performed any services in the litigation. The magistrate judge approved the fee application of the attorney of record and the trial counsel, but denied any portion of the attorney’s fees to the referring attorney and awarded their 35% to the plaintiff. District Judge Gleeson confirmed magistrate Judge Mann’s decision, and the Circuit Court of Appeals affirmed.
PRACTICE TIP – If you want to get a referral fee, learn the provisions of Rule 1.5, Fees and Division of Fees, and follow it.
AVOIDING LEGAL MALPRACTICE CLAIMS AND GRIEVANCES
IT’S ALL ABOUT THE CLIENT – Principles of Risk Management.
It’s the client’s case
They aren’t good injuries to the client- adjust your attitude
Clients are not supposed to like litigation
Don’t oversell the case
Fulfill your commitments
Returning phone calls and other things they don’t teach in law school
Don’t assume the client is stupider than you are
Don’t make your client your enemy
Spotting problem clients
If the client tells you all the reasons it’s such a great case, there may be a problem with the client’s attitude
WHO IS THE CLIENT ANYWAY? – you don’t need a written retainer.
Huffner v. Ziff, Weiermiller, Hayden & Mustico, 55 A.D. 3d 1009 (3d Dept., 2008). In the absence of a writing, the finder of fact will look to the “words and actions of the parties to ascertain if an attorney-client relationship was formed.”
Wei Cheng Chang v. Pi, 288 A.D. 2d 378 (2d Dept., 2001) -To form a relationship there must be an “explicit understanding to perform a specific task.”
Declination letters –a non-engagement letter to the prospective client severs any attorney client relationship and the statute of limitations runs from the date of the letter. Riley v. Segan, Nemerov & Singer, ___ A.D. 3d ____ , 2011 WL 97826 (1st Dept., March 22, 2011)
AND WHO IS THE LAWYER?– There is more to being a referring attorney than waiting for a check. Referring attorneys are ordinarily jointly liable for the negligence of those to whom they refer. In this case, both law firms appeared on the retainer, so the failure of the attorney of record to make a competent application to file a late notice of claim was imputed to the referring attorney. Reed v. Finkelstein, Levine, Gittelsohn & Tetenbaum et al., 304 A.D. 2d. 329 (1st. Dept., 2003)
COMMON MALPRACTICE TRAPS
LIMITATIONS OF TIME ARE THE SIMPLEST THING EXCEPT WHEN THEY AREN’T
THE PUBLIC AUTHORITIES NIGHTMARE. 1 year 90 days does not fit all
You can blow it after you’ve fixed it-
Goldenberg v. Westchester County Health Care Corp., 68 A.D. 3d. 1056 (2d Dept. 2009) – After attorney had prevailed in application for leave to file a late claim, the action was filed under the same index number. After the expiration of the statute of limitations, the defendants move to dismiss the complaint as time barred. The action was dismissed with prejudice - the same Index number cannot be used for a special proceeding and a subsequent action.
Conflicts, always conflicts
Ulico Casualty Company v. Wilson, Elser, Moskowitz, Edeman & Dicker, 56 A.D. 3d 1 (1st Dept. 2008) – Insurance company stated a valid claim, inter alia, breach of fiduciary duty and legal malpractice, where the firm represented the plaintiff company, its managing general agent, and a competing company. The competing company was actively soliciting the business of three insured of the plaintiff company, allegedly with the assistance of the law firm. At the same time, the law firm allegedly advised the plaintiff company to extend coverage to claims made after the policy period, which the plaintiff company did. Then the competing company signed up the accounts.
Pillard v. Goodman, _____ A.D. 3d ______ , 2011 WL 904160 (1st Dept, March 17, 2011) – Company’s former president stated a valid legal malpractice claim against the law firm that represented both her and the company in a breach of contract suit that resulted in a $5.2 million award against her and the company. The liability award was sustained, and the case remanded for a new trial on damages. The plaintiff alleged that the attorneys were negligent in failing to proffer evidence that she was no longer actively involved in management at the time of the transactions complained of. The defense of attorney judgment was not available to the lawyers because they offered no reasonable strategic explanation for failure to introduce the exculpatory evidence. Allegations of divided loyalty alone cannot support a cause of action, but liability can follow where the divided loyalty results in malpractice.
It’s too late to do the research after you have created the problem –
Ditondo v. Meagher, 24 Misc. 3d 720 (Broome County, 2009) – Defendant attorney represented a New York resident involved in a North Carolina workplace accident with an employee of a Nevda corporation with its principal place of business in California company. The action was commenced in the Northern District of New York. A motion for summary judgment sought dismissal based upon contributory negligence. North Carolina is a contributory neglgeigence state. New York and California aren’t. Plaintiff’s attorneys conceded the choice of North Carolina law, and the case was dismissed. They didn’t even argue for application of New York law based on an interest analysis. Defendant attorneys moved for summary judgment and plaintiff cross moved for summary judgment. Held by the Supreme Court- partial summary judgment granted to plaintiffs. Defendant attorneys were negligent as a matter of law.
Fielding v. Kupferman, 65 A.D. 3d. 437 (1st Dept. 2009)- Plaintiff alleged that his attorneys who advised him to sign a stipulation of settlement in a divorce action, were negligent in that they failed to advise him of the tax consequences. The defendant attorneys argued that the stipulation the plaintiff signed conclusively refuted plaintiff’s claim because he represented that the funds were “immediately available.” In fact, the only immediate source of the funds was a Keogh account, which had to be broken to finance the settlement, incurring a substantial tax liability. Held, the plaintiff stated a cause of action by alleging that his lawyers were not knowledgable with regard to the tax consequences, and failed to inform themselves, or to advise him to seek tax advice from another source. The Court takes pains to distinguish this case from Bishop v. Maurer, 33 A.D. 2d 497, affd., 9 N.Y . 3d 910 (2007), where the Court of Appeals affirmed dismissal of a claim that an attorney who did estate planning for both spouses failed to explain the documents to the husband, where the documents were clear and unambiguous, and both parties signed a conflict waiver.
Christ v. The Law Offices of Levine & Grossman, 72 A.D. 3d 721 (2d Dept., 2010) – Christ retained Solomon to commence a property damage claim against the Village of Garden City back in 1996. The allegation was that the village sewers had backed up into Christ’s house because of improper maintenance. Solomon blew the statute of limitations, and Christ retained Levine & Grossman to sue Solomon. In 2002, Solomon’s motion for summary judgment was granted, and the legal malpractice action against him was dismissed on the basis that there was no evidence shown of a recurring condition, or of any notice on the part of the village. The plaintiffs then did some investigation on their own and it turned out the documents did exist, but that neither Solomon nor Levine & Grossman had followed up with FOIL requests to the village, so they hadn’t obtained them. The plaintiffs then sued Levine & Grossman. The action went to trial on the issue of the Village’s negligence. The jury found for the plaintiffs, awarding them $36,500 for property damage and $44,300 for “other damage” including legal fees. The trial judge set aside the verdict as against the weight of the evidence. The Appellate Division reversed and remitted the case to Supreme Court Nassau County for further proceedings. It was ultimately settled.
PROSECUTING LEGAL MALPRACTICE CASES
DUTY – not all lawyers can be sued for everything by anybody. There has to be a duty.
PRIVITY - this is not a big issue in the conventional legal malpractice case, but it is worth understanding the law in the area of estate planning, where errors can be costly.
The prior New York rule was that a prima facie negligent representation claim required “either actual privity of contract between the parties or a relationship so close as to approach privity.” Prudential Insurance Company of America v. Dewey, Ballantine, Bushby, Palmer & Wood, 80 N.Y. 2d. 377 (1992). This meant that estate planning attorneys were insulated from actions by personal representatives of the estate or beneficiaries.
Estate of Saul Schneider v. Finmann, 15 N.Y.3d 306 (2010) Without abandoning the privity requirement, the Court of Appeals has expanded liability to allow a claim by a personal representative because the estate essentially stands in the shoes of a decedent and, therefore, has the capacity to maintain a malpractice claim on the estate's behalf. Beneficiaries are still barred, absent fraud or special circumstances.
SCOPE OF THE RETENTION
Shayla B. Pacific, LLC v. Wilson, Elser, Moskowitz, Edeman & Dicker, 38 A.D. 3d 34 (1st Dept. 2006) -. The client lost its excess coverage after retaining WEMED , and alleged that the attorneys had failed to timely tender notice of the claim to the excess carrier. Of course, the plaintiff was subsequently found liable far in excess of the primary policy limits. Defendant claimed the scope of its retention did not include any duty to advise the client in regard to excess coverage issues, and moved to dismiss. Held, that a legal malpractice plaintiff need not specifically plead that an alleged malpractice fell within the agreed scope of the defendant’s representation. Rather, a defendant law firm seeking dismissal on this ground must tender documentary evidence that conclusively establishes that the scope of the representation did not include matters relating to the alleged malpractice.
Chacho v. Law Offices of Louis Venezia, 18 Misc 3d 117(A) (Richmond Supreme, 2008)- Defendant law firm was sued for failure to timely file a notice of claim in a sidewalk case, and brought a third party action against the plaintiff’s attorney, alleging that he was negligent for failure to move for leave to file a late notice of claim. Because the plaintiff’s law firm’s retainer clearly sand specifically stated that it was retained only for the purpose of the legal malpractice claim, there was no duty on their part to make such a motion, so the third party action was dismissed. (One must still wonder what they were thinking – had the plaintiff moved for leave to file a late notice of claim, their position could only have been stronger)
CLAIM ACCRUAL – the three year statute of limitations per CPLR §214 is actually rather fluid due to the continuous representation rule, which applies in different ways according to the circumstances.
Shumsky v. Eisenstein, 96 N.Y. 2d 164 (2001) – a claim for legal malpractice accrues when the malpractice is committed. But, continuous representation will toll the statute until the attorney’s representation in the underlying matter is completed.
Aaron v. Roemer, Wallens and Mineux, LLP , 272 A.D. 2d 752(3d. Dept., 2000) – the continuous representation period may end, not when the attorney-client relationship is formally terminated, but upon a breakdown of the relationship of confidence and trust between the attorney and the client.
Gotay v. Breitbart , 58 A.D. 3d 25 (1st. Dept. 2008) – absent documentation, the attorney failed to establish termination of the attorney client relationship in a long, tragic, and difficult medical malpractice case. Judge Lippman’s words are worth quoting:
The Court of Appeals has recognized it as “essential that the terms of [attorney-client] representation ... be set down with clarity” (Shaw v. Manufacturers Hanover Trust Co., 68 N.Y.2d 172, 179, 507 N.Y.S.2d 610, 499 N.E.2d 864  ). Although the need for such clarity has most often been remarked upon in connection with fee disputes, it is no less critical to have an explicit and accurate understanding of any other fundamental issue pertaining to the attorney-client relationship, including, obviously, the elemental issue of whether there is a relationship at all. There is no room for uncertainty on these matters, especially where, as here, attorneys deal with laypersons unversed in the nuances and intricacies of legal practice and expression; what may seem crystal clear to a lawyer may be utterly lost upon the client. If the attorney-client relationship has come to an end, that fact should be absolutely clear to all parties involved. Id. at 29
Waggoner v. Caruso , 68 A.D. 3d 1 (1st Dept. 2009)– continuous representation tolled the statute as to as to the law firm where the defendant attorney was employed at the time of the alleged malpractice. However, the law firms where he subsequently worked were not liable to the plaintiff because they were not the plaintiff’s attorneys when the alleged malpractice took place.
ELEMENTS OF A LEGAL MALPRACTICE CAUSE OF ACTION
DEPARTURE FROM THE STANDARD OF CARE
Reisner v. Litman, 29 Misc. 3d 1208 (Supreme Nassau, 2010) – This case contains a good summary of the first two elements of a legal malpractice case, and may serve as a short lesson in their application. In a motor vehicle case, defendants did not undertake an investigation of the accident site until four months after the accident, when the plaintiff’s mother alerted them to safety concerns in the accident vicinity that had been reported in the media. Counsel’s investigation was delayed because they erroneously served FOIL requests upon the State of New York rather than the County of Nassau. They did ultimately find documentary evidence that the County had safety concerns, but had delayed remedial action. By then. the motion for leave to serve a late claim was denied due to inexcusable tardiness, combined with the County’s lack of actual knowledge of the facts underlying plaintiff’s claim. The attorney, however, misinformed the plaintiffs of the true basis of the denial, stating it was due to lack of notice on the part of the County, not their own delay. The attorneys nevertheless moved for summary judgment to dismiss the malpractice case, and plaintiffs cross moved. Court found that the attorneys were negligent as a matter of law in failing to serve and file a timely Notice of Claim, and questions of fact were found as to the County’s underlying negligence, precluding summary judgment for defendants.
CAUSATION- THE CASE WITHIN THE CASE
Teodorescu v. Resnick and Binder, P.C., 55 A.D. 3d 721 (2d Dept., 2008)- as in Reisner, above, the underlying negligence of the attorneys was failure to file a timely notice of claim. However, the defendant demonstrated that the plaintiff would not have prevailed in the underlying claim. There was no actual or constructive notice on the part of the NYCHA of the icy patch where she slipped. Indeed, plaintiff could not identify the exact location where she fell, so summary judgment was granted.
DAMAGES AND THE BUT-FOR RULE
Boone v. Bender, 74 A.D. 3d 1111 (2d Dept., 2010) – Plaintiff had consented to settle her divorce action, but claimed that the settlement was in effect coerced by poor advocacy on the part of the defendant attorneys. A claim for legal malpractice may be viable despite settlement, if it is alleged that the settlement was effectively compelled by the mistakes of counsel. In this case, the defendants persuaded the Court that they exercised reasonable judgment in pursuing the settlement. Moreover, the plaintiff’s allegations “that the defendants did not zealously advocate on her behalf, and that the settlement provided her with less monetary relief than that which she would have received after a trial, were speculative and conclusory.”
THE NUCLEAR OPTION –
STATUTORY LIABILITY UNDER JUDICIARY LAW §487
“An attorney or counselor who…
“Is guilty of any deceit or collusion, or consent to any deceit or collusion, with intent to deceive the court or any party…
“Is guilty of a misdemeanor, and in addition to the punishment prescribned therefore by the penal law, he forfeits to the party injured treble damages, to be recovered in a civil action…
Amalfitano v. Rosenberg, 12 N.Y. 3d 8 (2009)- On a certified question from the Second Circuit Court, the Court of Appeals held that a party to a litigation could be held liable for statutory treble damages and the prevailing party’s attorney fees, based upon material misrepresentation of fact to a tribunal in a complaint, regardless of whether the Court believed in the misrepresentation or relied on it. The Court in a short but remarkably broad decision, traces the statute’s origins back to the first decades after Magna Carta, and lauds “the statute’s evident intent to enforce an attorney’s special obligation to protect the integrity of the courts and foster their truth-seeking function.”
Rock City Sound v. Bashian & Farber, 74 A.D.3d 1168 (2d Dept., 2010), motion for leave to appeal denied, 2011 N.Y. Slip Op. 68459 - Corporate client sufficiently alleged that its attorney's malpractice caused it damage, by pleading loss of its equipment, assets, and ability to continue in business, due in part to attorney's legal advice. Corporate client sufficiently alleged attorney's deceit, a misdemeanor for which treble damages were available, by asserting that attorney knowingly advised and counseled shareholder in violating injunction and in failing to advise other 50% shareholder of sale of all assets, and in failing to move to be relieved as corporation's counsel after shareholder advised him that he was resigning.
Scarborough v. Napoli Kaiser & Bern, 63 A.D.3d 1531 (4th Dept., 2009) - Failure to timely file note of issue resulted in dismissal of underlying action. None of the defendants was entitled to summary judgment dismissing the Judiciary Law § 487 cause of action, where documents submitted by defendants in support of their motion established that some of the attorneys at defendant law firm engaged in intentional deceit. According to plaintiff, he was informed that he could not prevail in his underlying action but was never informed that the action already had been dismissed as a result of defendants' failure to file a timely note of issue. Subsequently, a member of defendants' firm telephoned plaintiff and told him the actual basis of the dismissal. It is unclear from the decision if there was any other evidence of deceit. The significant part of this decision is that deceit on the part of some individual attorneys resulted on exposure of the entire firm to treble damages.
CONCLUSION -THE MALPRACTICE REVOLUTION DEVOURS ITS CHILDREN
Whether you will be on the receiving end of a grievance or a legal malpractice action is largely up to you. A solid grounding in ethics and morality, and good practice management are the best risk management tools.
If you intend to represent plaintiffs in legal malpractice cases, be prepared to carefully investigate and analyze all facets of the alleged malpractice as well as the underlying case. The plaintiff’s burden of proof is heavy, and the time and monetary commitment necessary are substantial. These cases are vigorously defended. Few settle early. Motion practice and appellate practice are to be expected. Few clients are more grateful for success than those you can rescue from the consequences of negligent or dishonest attorneys.