Monday, September 22, 2014

Malpractice Dismissal Affirmed

The dismissal of a legal malpractice claim was affirmed by the New York Appellate Division for the First Judicial Department

Plaintiff David Lichtenstein owns and manages real estate through his entities, plaintiffs The Lightstone Group, LLC and Lightstone Holdings, LLC. In 2007, Lichtenstein and a consortium of investors purchased Extended Stay, Inc. (ESI), which owns and manages hotels. Most of the purchase price was financed through a combination of $4.1 billion in mortgage loans to ESI and $3.3 billion in 10 mezzanine loan tranches to its subsidiaries. As part of the loan transaction, Lichtenstein and Lightstone Holdings executed 11 guarantees that subjected them to $100 million in personal liability in the event of particular "bad boy" acts which included the voluntary filing of a bankruptcy petition by ESI. Lichtenstein managed ESI and became its president, CEO and chairperson. The majority of ESI's board of directors was comprised of Lichtenstein and representatives of entities he controlled.

The following year, ESI was faced with a liquidity crisis as its financial situation declined. ESI retained nonparty Weil, Gotshal & Manges as its restructuring counsel. As stated in the complaint, Weil Gotshal could not represent both ESI and Lichtenstein. As further alleged in the complaint, Lichtenstein retained Wilkie Farr in December 2008, "to advise and represent [him] in his role as an officer and director of ESI, particularly as to the liability of him and his entities in any restructuring, as well as to advise and represent affiliates of the Lightstone Group regarding their interests in ESI." Acting as ESI's counsel, Weil Gotshal recommended that ESI file for bankruptcy and advised that its board members, including Lichtenstein, were obligated as fiduciaries to achieve that result. Plaintiffs allege that their counsel, Willkie Farr, embraced Weil Gotshal's position although it was allegedly erroneous and would have exposed plaintiffs to $100 million in liability on the guarantees.

According to the complaint, ESI's financial condition continued to deteriorate, leaving Lichtenstein with a choice to either a) have the company file for bankruptcy, exposing Lichtenstein to liability on the guarantees or, "b) seek an alternative, including to refuse, or at least delay, and force the Lenders' hand to file a petition for involuntary bankruptcy or foreclose on the collateral (in which case Lichtenstein would risk a lawsuit under a breach of fiduciary claim [sic])." The complaint further alleges that Willkie Farr insisted that Lichtenstein had a fiduciary obligation to put ESI into bankruptcy for the benefit of the lenders. Willkie Farr warned that Lichtenstein otherwise faced the prospect of unequivocal and uncapped personal liability in any subsequent action by the lenders absent a bankruptcy filing by ESI. Before having ESI file for bankruptcy, Lichtenstein offered to surrender the collateral to the lenders as a group. Some of the lenders, however, balked and went to court to block any such surrender in what plaintiffs describe as a likely effort to force ESI into voluntary bankruptcy and trigger the "bad boy" guarantee. On Willkie Farr's advice, Lichtenstein caused ESI to file its bankruptcy petition on June 15, 2009. The lenders brought actions on the guarantees and a judgment was subsequently entered against Lichtenstein and Lightstone Holdings in the sum of $100 million.

This action was filed in June 2012. In making the instant motion to dismiss, Willkie Farr argued that its advice was reasonable and consistent with controlling Delaware law which imposed upon Lichtenstein, a director of an insolvent corporation, a fiduciary duty to maximize the company's long-term value for the benefit of its creditors and other constituencies such as equity holders and employees. Willkie Farr further asserted that the complaint is deficient because it does not allege that absent ESI's bankruptcy filing, Lichtenstein's liability would not have been triggered. The motion court granted Willkie Farr's motion, finding that the complaint contains no allegation of a failure "to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession which results in actual damages to []plaintiff" (see Ambase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 434 [2007]). We affirm.


There is no merit to plaintiffs' argument that Willkie Farr overlooked the availability of an equitable defense under the doctrine of in pari delicto. By operation of the doctrine, the position of a party defending against a claim is better than that of the party asserting the claim in a case of equal or mutual fault (see In re Oakwood Homes Corp., 389 BR 357, 365 [D Del 2008], affd 356 F Appx 622 [3rd Cir 2009]). Here, plaintiffs argue that the lenders could have been faulted for structuring the loan transactions in a way that prevented ESI from declaring bankruptcy. Plaintiffs' argument is flawed because they allege no wrongdoing that the lenders...

(Mike Frisch)

September 22, 2014 in Clients | Permalink | Comments (0) | TrackBack (0)

Monday, September 15, 2014

No Malpractice For Failure To Anticipate Change In Law

The Massachusetts Supreme Judicial Court affirmed the grant of summary judgment to the defendants in a legal malpractice claim.

The client was a medical doctor who had an employment issue. The basis of the malpractice was the allegation that the defendants had mishandled the opposition to a motion to compel arbitration.

The court

We conclude that it is not malpractice to fail to advocate for or anticipate a substantial change in law requiring the overruling of a controlling precedent...Neither a reasonably competent lawyer nor a reasonably competent employment law specialist commits malpractice by failing to anticipate or advocate for the overruling of an established employment law precedent.

The court also rejected the breach of fiduciary duty claim with respect to the withdrawal from the representation

As demonstrated by the e-mail [client] Minkina sent to the partners of RPS, the attorney-client relationship had broken down here. She had accused her primary counsel at the small firm handling her case of gross negligence that had cost her thousands of dollars. She accused this same lawyer of being more concerned with defense counsel interests than Minkina's own interests. She complained about the performance, or lack thereof, of other counsel in the firm as well. She undisputedly did not trust or have confidence in her principal lawyer or the other lawyers who had assisted her in the litigation. As the OBC found, this breakdown in the relationship justified the withdrawal of the representation. We agree.

As noted above, the client filed a bar complaint that did not lead to findings of misconduct. (Mike Frisch)

September 15, 2014 in Clients | Permalink | Comments (0) | TrackBack (0)

Thursday, August 14, 2014

Waiting In The Wings

The District of Columbia Court of Appeals has reversed a legal malpractice judgment, concluding that the plaintiff - a non-client - was not owed a duty of care by the defendant attorney.

The plaintiff was in a relationship with a married man. She approached the attorney to secure representation for a divorce for him. The married man eventually retained the attorney, who filed the divorce complaint.

There was delay in serving the complaint and the client died before the divorce was finalized.

A jury awarded the plaintiff damages based on retirement benefits that the client would have received if the divorce was completed and the decedent had married her. The damages exceeded a quarter of a million dollars.

 It was undisputed that the plaintiff was never a client of the defendant or his law firm.

The court held as a matter of law that the duty of care did not extend to the plaintiff. Although there are limited situations where an intended beneficiary may sue a lawyer, is not difficult to envision situations where the interests of the client seeking the divorce and his fiancee waiting in the wings could come into conflict, which argues against any dilution of the attorney's obligation to serve the interests of his or her client alone.

On appeal, the attorney conceded negligence in handling the divorce. (Mike Frisch)

August 14, 2014 in Clients | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 13, 2014

The Supreme Commandment For The Noblest Calling

The Washington Court of Appeals - Division III sua sponte disqualified  an attorney from representing his client in an appeal from the imposition of sanctions in a domestic action.

As the noblest calling, the legal profession demands the highest ethical behavior from its members. A supreme commandment of attorney ethics is undivided loyalty to a client and shunning any self-interest that would conflict with the interests of the client.

The attorney made arguments on appeal of a $55,000 award of attorneys fees and costs that were beneficial to himself but harmful to the client.

The essence of the argument was that the client should be held solely responsible for the sanction.

The court makes clear that, when attorney and client point fingers at each other, a concurrent conflict exists. (Mike Frisch)

August 13, 2014 in Clients | Permalink | Comments (0) | TrackBack (0)

Expert Not Always Required In Legal Malpractice Claim

The New Hampshire Supreme Court has reversed an order dismissing a legal malpractice case.

The court held that there is no per se rule that requires a legal malpractice plaintiff to offer expert testimony

...the trial court granted the defendants’ motion to dismiss because "the plaintiff . . . failed to disclose an expert capable of establishing the standard of care and the breach of that standard of care as well as the proximate cause of the alleged injuries." The trial court based its decision on a categorical rule that, "[b]ecause the extent to which an attorney, in the exercise of due care, should investigate a claim to file a timely action is not a matter of common knowledge, a jury would not be able to evaluate the adequacy of the attorney’s actions without the aid of expert testimony." (Quotation omitted.) Because we have not adopted such an unqualified rule, the trial court erred as a matter of law in granting the motion to dismiss. See, e.g., Carbone, 151 N.H. at 528-29 (explaining case was not "one of those exceptional cases where [the defendant’s] breach of the standard of care was so obviously the legal cause of [the plaintiff’s] injuries that expert testimony was not required"); Wong, 148 N.H. at 374 (affirming dismissal of legal malpractice claim for lack of expert testimony because evidence of negligence was not "so patent and conclusive that reasonable persons c[ould] reach only one conclusion" (quotation omitted)).

 The underlying case was brought by the plaintiff against a defendant wjo was alleged to have removed timber from his property. That case was dismissed on statute of limitations grounds. (Mike Frisch)

August 13, 2014 in Clients, Law Firms | Permalink | Comments (0) | TrackBack (0)

Thursday, June 19, 2014

No Malpractice In Negotiated Disposition Of Medical Disciplinary Charges

The New York Appellate Division for the Second Judicial Department reversed a trial court order and dismissed a legal malpractice case on these facts

The defendants represented the plaintiff, a physician, in a disciplinary proceeding commenced against him by the State Board for Professional Medical Conduct. Although the plaintiff faced potential revocation of his license, the defendants negotiated a settlement offer, whereby the plaintiff would be placed on probation for a period of three years with certain restrictions on his practice. Upon consultation with the defendants, the plaintiff accepted the settlement offer and entered into a consent agreement. The consent agreement was entered into with the informal understanding that the plaintiff could apply to have certain restrictions removed after one year. After complying with the consent agreement for approximately one year, the plaintiff retained new counsel and successfully obtained removal of certain restrictions in the consent agreement. The plaintiff subsequently commenced this action against the defendants, alleging legal malpractice, breach of contract, and breach of fiduciary duty...

Here, the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that they exercised the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession in their representation of the plaintiff, and, in any event, that any alleged breach was not the proximate cause of the plaintiff's damages.

(Mike Frisch)

June 19, 2014 in Clients | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 9, 2014

Arbitration Clause Must Be Explained To Client

The Washington Court of Appeals - Division Three- has upheld a trial court determination that Washington State has jurisdiction over Texas lawyers who provide debt relief services to state residents.

 [Law firm] LWG purposely advertised on the Internet to Washington residents, made service promises to Washington residents, entered into contracts with Washington residents, and received payments from Washington residents. Ms. Miller's suit relates to these activities. Having Washington as the forum state does not offend traditional notions of fair play and substantial justice, considering the type of the complaint, the convenience of the parties, and the equities involved. Based on the above, Ms. Miller met her burden to show that Washington had personal jurisdiction over LWG to avoid dismissal. The trial court properly concluded likewise.

Further, the court found that a contractual provision that required clients to submit to arbitration in Texas was not explained to the clients and was unenforcable.

 Here, no attorney or attorney's representative discussed the arbitration provisions with Ms. Miller, or advised her of the rights at stake. She was not counseled or advised regarding the consequences of relinquishing the legal protections provided by Washington law or of the protections provided by Texas law. Ms. Miller was not informed of the advantages or disadvantages of arbitration, including the requirement she must bring arbitration claims in Texas. Moreover, no one explained the inconsistent and mutually exclusive venue and jurisdiction provisions. Based on existing case law and the RPCs, we, like the trial court, conclude the agreement between the parties was procedurally unconscionable. Therefore, it was void and we need not address substantive unconscionability.

(Mike Frisch)

April 9, 2014 in Clients, Current Affairs | Permalink | Comments (0) | TrackBack (0)

Thursday, April 3, 2014

Whichever is Greater

The New York Court of Appeals has held favorably to an attorney in a case that presented this issue

This appeal concerns the appropriate treatment of statutory counsel fees awarded under the New York City Human Rights Law where the contingency fee agreement does not explicitly mention statutory fees. We hold that, absent a contract term expressly providing for a different distribution, an attorney is entitled to the greater of either the contingency fee or the statutory award.

The case involved former police officer two clients who retained counsel to sue New York but later became dissatisfied. The attorney sought declatatory relief when a dispute arose with the clients over her fees.

The court light of their unequivocal terms, the Appellate [Fee] Agreements should be enforced as written. Because the statutory appellate fees exceeded the contracted-for minimum of $20,000 per appellant, per appeal, [attorney] Dorman is entitled to receive those court-ordered fees in their entirety. As for compensation owed to Dorman for her representation at trial, she is entitled to collect either one third of the jury award, or the statutory trial fees, whichever is greater.

(Mike Frisch)

April 3, 2014 in Billable Hours, Clients | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 1, 2014

Yes, No and Maybe So

A verdict for a plaintiff law firm for fees allegedly due on a contingent fee contract was reversed by the New York Appellate Division for the First Judicial Department.

There was a problem with an inconsistent jury verdict

Plaintiff, Bellinson Law, LLC, brought this breach of contract claim against its former client, defendant Robert Iannucci, to recover an unpaid contingent fee following its representation of defendant in a federal civil rights action. Pursuant to a Retainer Agreement and an Addendum to the Retainer Agreement (Addendum), defendant agreed to pay plaintiff a contingent fee if the case settled before jury selection was completed. However, when the case settled prior to trial for the amount of $2.125 million, defendant refused to pay plaintiff the agreed upon fee, asserting that plaintiff failed to perform under the contract. Plaintiff then commenced this action, seeking the unpaid attorney fees.

During the jury charge, the trial court presented the jury with a verdict sheet containing the three following interrogatories: (1) was there a contract between the parties? (2) did plaintiff perform its obligations under the contract? (3) was defendant obligated to pay plaintiff for its services under the contract? Following deliberations, the jury answered question one yes, concluding there was a contract between the parties, but responded no to question two, finding that plaintiff had not performed its obligations under that contract. When asked by the court, in response to the third question, if the defendant was obligated to pay plaintiff for its services under the contract, the jury answered "yes." Before the jury was discharged, defendant's counsel asked to speak to the court and a side bar was held. We do not know what was discussed at the side bar. The jury was then discharged.

The appropriate remedy is a new trial. (Mike Frisch)

April 1, 2014 in Clients, Economics | Permalink | Comments (0) | TrackBack (0)

Monday, March 24, 2014

Sued Too Late

 The Connecticut Supreme Court has addressed the following issue

The principal issue in this appeal is whether allegations that a law firm breached its duty of undivided loyalty to a client and failed to follow the client’s instructions regarding the prosecution of a lawsuit sound in breach of contract, to which a six year statute of limitations applies, or in legal malpractice, to which a three year statute of limitations applies.

The court held that the shorter statute applied and that the plaintiff thus had sued too late

Although the Rules of Professional Conduct specify that the ‘‘[v]iolation of a Rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption that a legal duty has been breached,’’ they also acknowledge that, ‘‘since the Rules do establish standards of conduct by lawyers, a lawyer’s violation of a Rule may be evidence of breach of the applicable standard of conduct.’’ 7 Rules of Professional Conduct, scope. Accordingly, even though the plaintiff does not rely expressly on the Rules of Professional Conduct as a basis for her claim, her allegations that the defendant breached its duty of undivided loyalty and its duty to follow her wishes and instructions in its prosecution and settlement of the prior lawsuit are consistent with a claim of legal malpractice that relies on violations of rules 1.7 (a) and 1.2 (a) of the Rules of Professional Conduct as evidence of a breach of the applicable standard of conduct. See Caffery v. Stillman, supra, 79 Conn. App. 197–98 (concluding that complaint alleged violation of minimum standard of care rather than breach of contract).

We thus conclude that the plaintiff’s allegations sound in tort rather than in breach of contract, and, as a consequence, the plaintiff’s claim is barred by the three year statute of limitations applicable to tort claims.

The judgment of the Appellate Court is affirmed.

(Mike Frisch)

March 24, 2014 in Clients | Permalink | Comments (0) | TrackBack (0)

Thursday, March 20, 2014

Giving Notice, Getting Paid

A lawyer's attempt to recover unpaid fees failed in a decision affirming dismissal of the claim by the New York Appellate Division for the Second Judicial Department.

Except in limited circumstances, where an attorney institutes an action to recover a fee, the attorney must provide written notice by certified mail or by personal service of the client's right to elect to arbitrate and must allege in the complaint that the client received notice of his or her right to pursue arbitration and did not file a timely request to arbitrate (see 22 NYCRR 137.6). A plaintiff's failure to provide the defendant with written notice of his or her right to elect to submit the fee dispute to arbitration, and the failure to allege in the complaint that the defendant received such notice and did not file a timely request for arbitration, require dismissal of the complaint (see Herrick v Lyon, 7 AD3d 571). Here, the Supreme Court properly dismissed the complaint upon finding that the plaintiff failed to properly serve the defendant with written notice of his right to arbitrate the fee dispute, and upon the plaintiff's failure to allege in the complaint that the defendant received such notice and did not file a timely request for arbitration (see 22 NYCRR 137.6; Herrick v Lyon, 7 AD3d 571).

In addition, the Supreme Court properly found that the plaintiff failed to comply with the requirements of 22 NYCRR 1215.1 and failed to establish that he was entitled to recover legal fees in quantum meruit. Except in limited circumstances, an attorney must provide his or her client with a written letter of engagement or enter into a written retainer agreement explaining, inter alia, the scope of the legal services to be provided, the fees to be charged, and the expenses and billing practices (see 22 NYCRR 1215.1). An attorney's noncompliance with 22 NYCRR 1215.1 does not preclude him or her from recovering the value of professional services rendered on a quantum meruit basis (see Seth Rubenstein, P.C. v Ganea, 41 AD3d 54). Nonetheless, an attorney who fails to comply with rule 1215.1 bears the burden of proving the terms of the retainer and establishing that the terms of the alleged fee arrangement were fair, fully understood, and agreed to by the client (see id.). Here, the court properly found that the plaintiff failed to comply with 22 NYCRR 1215.1 and failed to establish that the terms of the fee arrangement were fair, fully understood, and agreed to by the defendant.

(Mike Frisch)

March 20, 2014 in Clients, Current Affairs, Economics | Permalink | Comments (0) | TrackBack (0)

Monday, March 17, 2014

Subjective Belief No Basis For Malpractice

The West Virginia Supreme Court of Appeals affirmed the grant of summary judgment to the defendants in a legal malpractice claim

 On February 27, 2007, petitioner retained respondent to represent him in a possible claim against Concord University. Petitioner had applied for a plumber’s position at Concord in October of 2006. Concord hired another applicant for the position in January of 2007. Petitioner believed that Concord’s failure to hire him constituted retaliation for his earlier filing of a successful wage claim against one of Concord’s contractors.

Respondent did not file such an action on petitioner’s behalf, nor did respondent timely inform petitioner that its investigation did not support a claim of retaliation, prior to the expiration of the two-year statute of limitations on petitioner’s potential cause of action. In April of 2010, respondent met with petitioner and explained that there was no proof to support his claim. Respondent also advised petitioner that the statute of limitations had run on filing a retaliation claim...


This Court notes that respondent failed to file an action on petitioner’s behalf after respondent’s investigation revealed that petitioner possessed no viable cause of action. Petitioner obviously disagrees with his former attorney’s assessment of his claim; however, petitioner’s subjective belief that he had a viable action does not constitute evidence that he did.

(Mike Frisch)



March 17, 2014 in Clients | Permalink | Comments (0) | TrackBack (0)

Friday, February 28, 2014

No Utter Refutation

The New York Appellate Division for the Second Judicial Department affirmed a trial court order declining to dismiss a legal malpractice claim.

The facts

The plaintiff's sister worked for the defendant law firm, in which the individual defendants are partners. During his sister's employment, the plaintiff came to learn of an investment opportunity being organized by the defendants, which involved providing high interest, short-term loans for the development of real estate. The plaintiff and his wife decided to participate. Two bank checks, one of which was purchased by the plaintiff's wife and bore only her name, were forwarded to the defendants for the purpose of making two loans. When these two loans were not repaid in full, the plaintiff commenced this action seeking to recover from the defendants the money that he was owed, claiming that the defendants effectively borrowed the money from him (first and second causes of action). In the alternative, the plaintiff sought damages for legal malpractice (third cause of action). The plaintiff made a pre-discovery motion for summary judgment on the complaint, and the defendants cross-moved, inter alia, to dismiss the second cause of action pursuant to CPLR 3211(a)(3), for lack of standing, and to dismiss the complaint pursuant to CPLR 3211(a)(1), based upon documentary evidence. The Supreme Court denied the motion and the cross motion.

The court here comncluded that the law firm's documentary evidence failed to "utterly refute" the plaintiff's claims. (Mike Frisch)

February 28, 2014 in Clients | Permalink | Comments (0) | TrackBack (0)

Friday, February 14, 2014

Securitization Malpractice Claim Survives

The New York Appellate Division for the First Judicial Department has held that a legal malpractice claim may continue.

The issue on appeal was whether a document should have triggered further review by the defendant law firm.

In this legal malpractice action, plaintiffs allege that defendant law firm failed to provide them with the appropriate legal advice, and rendered a legal opinion without performing the necessary due diligence, in connection with the securitization of a pool of commercial mortgage loans. When one of the loans went into default, the trustee of the trust holding the mortgages brought an action against plaintiffs in federal court alleging that they had breached various warranties in the securitization agreements. Plaintiffs maintain that the alleged breach of the warranties was the result of the law firm's malpractice leading up to and during the securitization process. Plaintiffs claim that they were forced to settle the federal lawsuit for millions of dollars, and that they would not have suffered these damages but for the law firm's negligence. The motion court denied the law firm's motion for summary judgment dismissing the malpractice cause of action. We now modify to dismiss that part of plaintiffs' claim alleging that the law firm failed to provide appropriate legal advice, and to limit plaintiff's claim that the law firm did not perform the requisite due diligence before rendering its legal opinion on the securitization.

The majority opinion notes and disputes a dissent

In concluding that the malpractice cause of action against Cadwalader should be dismissed in its entirety, the dissent misperceives that the majority is reaching out to create an issue of fact. We emphatically reject this contention, and it does not become true simply because the dissent continually repeats it. As noted, the motion court, in its decision, addressed the significance of the Deal Highlights document in denying Cadwalader's motion for summary judgment. In light of the motion court's reliance upon this critical document, it is disingenuous for the dissent to accuse the majority of creating fact issues for trial. In upholding Nomura's malpractice claim on a narrow basis, we fully adhere to our role of "issue-finding, rather than issue-determination" (citation omitted)

From the dissent:

If I agreed with the majority that, on this record, the information in the Deal Highlights document could reasonably be found to constitute a "red flag" that should have prompted Cadwalader to make further inquiry, I would join in affirming the denial of summary judgment. After all, even while they took the position (with which the majority agrees) that Cadwalader was not responsible for conducting due diligence, Cadwalader's expert witnesses and its senior REMIC partner, Charles Adelman, Esq., agreed in their testimony that it would have been appropriate for the firm to raise an issue with Nomura if any information came to Cadwalader's attention that reasonably put in question the qualification of any of the loans for REMIC treatment. Nothing in the record, however, supports the majority's conclusion — a conclusion that Nomura itself has not asked us to draw — that the Deal Highlights document, merely because it stated that the appraisal included the hospital's value as a going concern, should have alerted Cadwalader to a potential problem with the loan, given that Cadwalader had already properly advised the client about the REMIC rules (as determined by the majority). To reiterate, if there was any red flag in this case, it was a document that Nomura, but not Cadwalader, had in its possession when the securitization closed, namely, the August 1997 appraisal of the hospital, which had been prepared as the basis for the underwriting of the Doctor's Hospital loan.

(Mike Frisch)

February 14, 2014 in Clients | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 29, 2014

Ethics Of Private Adoptions

A recent opinion from the District of Columbia Bar Legal Ethics Committee:

Lawyers who represent clients, whether birth parents or prospective adoptive parents, in private or independent adoption proceedings in the District of Columbia must ensure their conduct conforms to the D.C. Rules of Professional Conduct. Private adoptions frequently give rise to a number of significant ethical obligations, not the least of which are duties arising under conflict of interest rules, that the lawyer must squarely address with his or her client or clients, often at the onset of the representation. In many instances, a lawyer will be required to obtain the informed consent of one or more clients, and in some circumstances that of former clients, regarding certain aspects of the representation, in order to commence or continue representation. Private adoption practitioners should be particularly mindful of ethical duties attendant to communications with unrepresented persons, as well as duties of confidentiality owed to both current and former clients.

(Mike Frisch)

January 29, 2014 in Clients, Current Affairs, Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Thursday, January 23, 2014

No Defamation For Termination Statements

The dismissal of a defamation claim brought by an attorney against an unhappy former client was affirmed by the New York Appellate Division for the First Judicial Department:

Where a client sends a letter to its attorney terminating the representation and complaining that the attorney's representation was inadequate or constituted misconduct or malpractice, may the attorney sue the client for defamation?

Plaintiff, A. Bernard Frechtman, a practicing attorney for more than 60 years, brought this action against his former clients for defamation, alleging that three letters signed by defendant Allen Gutterman, each of which terminated Frechtman's employment as attorney in a particular named matter, contained defamatory statements. The relied-on statements include: "We do not believe you adequately represented our interest," "We believe your failure to act in our best interest in reference to certain matters upon first engaging in the matter may equate to misconduct, malpractice, and negligence," "We believe that your future representation on this matter only became necessary, as a result of mistakes and oversights made by you acting as counsel," and "[W]e believe that we should not pay for the value of services for which any misconduct or counsel oversight relates to the representation for which fees are sought."

Defendants moved to dismiss the complaint, and the motion court granted the motion. For the reasons that follow, we affirm.

The court concluded that statements in a letter terminating legal services are absolutely privileged. (Mike Frisch)

January 23, 2014 in Clients | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 8, 2014

Angry E-Mail Does Not Terminate Representation

The date of termination of representation was the key issue in an appeal of a trial court determination that declined to dismiss a legal malpractice claim on statute of limitations grounds.

The law firm represented the client in a matrimonial matter.

The client sent the firm an e-mail on August 7, 2008 questioning the handling of her matter. The representation was formally terminated on August 19.

The client sued for legal malpractice by complaint filed August 9, 2011.

The firm claimed that the e-mail ended their representation and that the former client was SOL (here, a polite way of saying that the three-year statute had run).

The New York Appellate Division for the Second Judicial Department agreed with the trial court

Here, the plaintiff's email message dated August 7, 2008, does not conclusively contradict the allegation, set forth in paragraph 103 of her complaint, that the defendants were not discharged as her counsel until August 19, 2008. The email message makes demands and accusations but does not necessarily or unequivocally terminate the parties' attorney-client relationship. The email message states, inter alia, that, "without the judgment being signed, I have no money with which to pay," which suggests the need for further legal work to be performed, and also states that since the plaintiff and counsel both attend the same synagogue, "it will be a pity to have bad blood between us." In light of those statements, and the Consent to Change Attorney that was not executed until August 19, 2008, the defendants failed to conclusively establish that the attorney-client relationship did not continue until the latter date. Accordingly, the defendants' motion to dismiss the complaint was properly denied.

Clarity on such matters favors the attorney. (Mike Frisch)

January 8, 2014 in Clients, Law Firms | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 31, 2013

Immigration Advice To Criminal Defendant Deemed Sufficient

From the web page of the Tennessee Supreme Court, reporting on a December 23 opinion

The Tennessee Supreme Court today upheld the conviction of a man who said he wasn’t aware that his guilty plea would result in his deportation or adversely affect his future eligibility to return legally to the United States.

In 2011, Juan Alberto Blanco Garcia, an alien illegally residing in the United States, pled guilty to the felony of neglect of a child under six years of age. With the aid of an interpreter in court, Blanco Garcia said he understood the charges, the sentence possibilities and that his guilty plea was made freely and voluntarily.  The trial court did not advise the defendant of the immigration consequences of the plea or inquire whether his attorney had done so. 

Before he entered the plea, however, Mr. Blanco Garcia’s attorney told him that he would be deported based on his status as an illegal alien and the guilty plea. The attorney also told Mr. Blanco Garcia that the guilty plea could adversely affect his future eligibility to return legally to the United States, but she advised him to consult an immigration lawyer for more specific information about the issue.

After his conviction, Mr. Blanco Garcia filed a petition alleging that his attorney was ineffective and his plea involuntary because he was not informed of the future immigration consequences of the guilty plea.

The Supreme Court determined that the attorney fulfilled her obligation of effectively representing Mr. Blanco Garcia by advising him that he would be deported upon pleading guilty and that the guilty plea could have future adverse immigration consequences.  The Court explained that this general warning was sufficient because federal law did not clearly and succinctly describe the effect Mr. Blanco Garcia’s guilty plea would have on his future eligibility to return legally to this country. 

As to Mr. Blanco Garcia’s claim that his plea was unknowing and involuntary, the Court declined to decide whether the federal or state constitution requires courts to advise a person pleading guilty of the immigration consequences of the guilty plea.  The Court explained that, even assuming the trial court’s failure to advise Mr. Blanco Garcia of the immigration consequences of his plea amounted to constitutional error, the error was harmless because Mr. Blanco Garcia’s attorney had already informed him of the immigration consequences of his plea.

Read the Opinion in Juan Alberto Blanco Garcia v. State of Tennessee, authored by Justice Cornelia Clark.

(Mike Frisch)

December 31, 2013 in Clients, Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Monday, December 9, 2013

Disclosure Of Attorney's Files Sustained

The New Hampshire Supreme Court affirmed an order holding that an attorney's file is subject to disclosure in a probate matter.

The attorney was consulted twice, but not retained, for estate planning of a deceased couple. One of the brothers claims that the other brother exercised undue influence on the parents

...because the Attorney's file is relevant to an issue between the parties who claim through the same deceased client, we hold that the trial court did not unsustainably exercvise its discretion in allowing the file to be disclosed to the parties under [rules of evidence].

The court also sustained disclosure of correspondence between the attorney and one of the brothers. (Mike Frisch)

December 9, 2013 in Clients, Privilege | Permalink | Comments (0) | TrackBack (0)

Monday, November 25, 2013

Lawyers For Wrongful Death Estate Claim Owe Duties To Minor Children

The Kentucky Supreme Court affirmed the holding of the Court of Appeals that there were genuine issues of material fact precluding summary judgment to a law firm that had been sued for malpractice.

The trial court had held the plaintiffs lacked standing "because they did not have an attorney-client relationship" with the defendants.

The Court of Appeals reversed on two grounds.

First, there was a factual issue concerning the existence or not of an attorney-client relationship. Second, the plaintiffs were two minor children when the estate came into existence, and as "statutorily-identified beneficiaries of the wrongful death claim" were owed professional duties by the attorneys.

The suit arose from an accident that killed a man survived by a wife and four children. He was driving a van that struck a wall. A suit against the company charged with maintaining the van was dismissed after experts were excluded. No appeal was filed.

The malpractice suit was filed two years later. By then, one of the minor children had reached the age of majority.

The court majority found that the minor children  "were real parties in interest with regard to the wrongful death claim....As intended beneficiaries of the claim," the actions of the attorneys were taken on their behalf.

The statute of limitations was tolled as to the malpractice claim "until they reached the age of majority."

Justices Noble and Scott concurred and dissented, both writing opinions expressing concerning for the position the decision places wrongful death attorneys who may face malpractice actions years in the future when children reach majority age.

Justice Noble would require the personal representative to bring ancillary claims on behalf of children in a timely manner.

Justice Scott laments the dilemma of the attorneys who must now serve multiple masters in the conduct of litigation.

in his view, the majority holding "simply doesn't contribute to an efficient system of litigation; not to mention the conflicts it now raises with one counsel having duties to potentially antagonistic multiple parties. We shouldn't be leaving one hundred years or more of good, workable precedent."  (Mike Frisch)

November 25, 2013 in Clients | Permalink | Comments (0) | TrackBack (0)