Wednesday, November 18, 2015
The New York Appellate Division for the First Judicial Department affirmed the dismissal of claims against Davis Polk & Wardwell
The motion court providently exercised its discretion and properly balanced the factors set forth in Islamic Republic of Iran v Pahlavi (62 NY2d 474, 479 , cert denied 469 US 1108 ; Matter of Alla v American Univ. of Antigua, Coll. Of Medicine, 106 AD3d 570, 571 [1st Dept 2013]). As the motion court observed in evaluating the situs of the events at issue, plaintiff "reached across the Pacific" to recruit the partner he claims to have introduced to the defendant law firm, and all discussions occurred with that partner located in Hong Kong.
Plaintiff claims that Hong Kong is not an adequate forum on the basis that he would be unable to retain counsel on a contingency fee. Here, however, where the negotiations at issue were directed to Hong Kong, and key witnesses were located there, the motion to dismiss was properly granted (see Emslie v Recreative Indus., Inc., 105 AD3d 1335, 1336-1337 [4th Dept 2013]; cf. Waterways Ltd. v Barclays Bank PLC, 174 AD2d 324, 327-328 [1st Dept 1991]).
Plaintiff further ignores the hardship to defendants whose key witnesses are located in Hong Kong, the noted admissibility problems with respect to electronic discovery, and the likely application of the law of Hong Kong. Since this action is almost entirely concerned with events and law in Hong Kong, it cannot be said that the action has a "substantial nexus" with New York (Tetra Fin. (HK) v Patry, 115 AD2d 408, 410 [1st Dept 1985]).
Monday, November 9, 2015
The North Dakota Supreme Court affirmed the dismissal of a legal malpractice claim
Paul Rusgrove appeals from a district court's summary judgment dismissing his lawsuit against Wayne Goter alleging legal malpractice. Rusgrove argues the district court erred in dismissing his claim for failure to identify an expert witness alleging the district court should have permitted him to subpoena an unretained government employee to provide expert testimony because he is indigent. He also argues the district court should have applied a less stringent legal standard to him, because he is an incarcerated self-represented litigant. We conclude the district court appropriately granted summary judgment dismissing Rusgrove's lawsuit with prejudice, because he failed to make a showing sufficient to establish the existence of an element essential to his case on which he would bear the burden of proof at trial because he did not timely retain an expert witness. Rusgrove's remaining arguments are completely without merit, because he provided no relevant legal authority in support of his positions.
Friday, November 6, 2015
The New York Appellate Division for the First Judicial Department has affirmed the dismissal of a legal malpractice claim against Stroock & Stroock & Lavan.
The court applied the correct standard and properly dismissed the complaint. Its unsupported factual allegations, speculation and conclusory statements failed to sufficiently show that but for defendant's alleged failure to advise plaintiffs to pursue Chapter 11 bankruptcy upon their default on a $47 million loan, plaintiffs would not have lost approximately $80 million in equity in the underlying condominium project in Tribecapractice claims against Strook & Strook & Lavan...
Plaintiffs, who defaulted on the loan in May 2009, alleged damages of approximately $80 million in lost equity based on sales figures of units that sold after the lender assumed ownership of the underlying property in 2010. While plaintiffs argue that the amount was also based on an expert appraisal, no basis for the amount is apparent, other than later sales in 2010 and 2011, after the lender took over, and after the market had improved. Plaintiffs' calculation also ignores that the Attorney General would not, as of December 2009, allow the sponsor, plaintiff 415 Greenwich LLC, to sell any units because it had failed to submit a plan that sufficiently stated how it would pay its arrears and other financial obligations in connection with the condominium units. Thus, plaintiffs' speculative and conclusory allegations do not suffice to show actual ascertainable damages.
Wednesday, October 28, 2015
An opinion from the Minnesota Supreme Court
Appellant Stowman Law Firm, P.A. (Stowman), which represented a client pursuant to a contingent-fee agreement, voluntarily withdrew from the representation of the client when efforts to settle the case failed. The client retained substitute counsel who then successfully settled the case. Stowman brought an action to recover in quantum meruit the value of the services provided prior to the withdrawal. Following a bench trial, the district court found that Stowman failed to establish good cause for withdrawal and, therefore, was not entitled to recover in quantum meruit. The court of appeals affirmed. We conclude that an attorney may withdraw from a contingent-fee agreement with or without cause, provided that the withdrawal satisfies the rules of professional responsibility. But the attorney must establish that the withdrawal is for good cause in order to recover in quantum meruit the reasonable value of the services rendered prior to withdrawal. Because Stowman failed to establish good cause, we affirm.
We conclude that an attorney who withdraws for good cause from representation under a contingent-fee agreement may recover in quantum meruit the reasonable value of services rendered prior to withdrawal, provided that the attorney’s recovery in the event of withdrawal for good cause is not otherwise addressed in the contract and the attorney satisfies the ethical obligations governing withdrawal from representation.
Saturday, October 24, 2015
An opinion authored by Judge Janice Rogers Brown of the United States Court of Appeals for the District of Columbia Circuit
“Hell hath no fury like a lawyer scorned.” Tom Gordon, Hell Hath No Fury Like a Lawyer Scorned, WALL ST. J., (Jan. 28, 2015), http://www.wsj.com/articles/tom-gordon-hell-hath-no-furylike-a-lawyer-scorned-1422489433. The problem with scorning a lawyer is that lawyers tend to sue. So it is here. A law firm based in the District of Columbia, Bode & Grenier, LLP, provided legal services to three Michigan-based companies owned and managed by Carroll Knight (“appellants”). More than ten years into the relationship, appellants stopped paying the bill. The predictable result? Litigation. The law firm prevailed in the district court, winning a judgment for $70,000 in overdue legal fees—plus $269,585.19 in legal fees for having to litigate over $70,000 in legal fees. We affirm the district court.
The law firm represented the client from 1994 to 2008
advising on taxation, gasoline contracts, petroleum futures and various regulatory enforcement and litigation matters. Throughout most of the relationship, no written agreement governed the terms of legal representation or manner of payment. Appellants paid the law firm monthly based on oral agreements...
On November 25, 2005, catastrophe struck. Approximately 100,000 gallons of petroleum spilled out of holding tanks owned by appellants in Toledo, Ohio. Appellants stopped the leak, but were powerless to stop the flood of regulatory actions that followed in its wake. A month after the spill, Knight called Bode & Grenier’s managing partner, William Bode, to request the firm’s services. The firm soon tackled regulatory enforcement proceedings in Ohio, a lawsuit in federal court in Ohio, and counseled the company on other regulatory issues. As before, the firm billed appellants monthly.
The suit came when the fees went unpaid.
The court applied D.C. law
Here, the factors weigh in favor of applying D.C. law, not Michigan law. The first two factors—the place of contracting and place of negotiation—are inconclusive. Mr. Knight negotiated from Michigan, and Bode & Grenier from D.C. Likewise, the fifth factor—domicil—weighs evenly on both ends. In a dispute over a service contract, no factor matters more than the place of performance.
Nearly all of the legal services at issue were performed in D.C. by attorneys licensed to practice in D.C. See Appellee Br. 28–30. While the representation required occasional travel outside D.C. (mainly to Ohio), we find no evidence suggesting the firm’s attorneys routinely practiced in Michigan. The firm managed the representation from its sole office, located in D.C. The fourth factor—the location of the subject matter of the contract— supports applying D.C. law for the same reasons. This contract called for legal services managed and performed in D.C.
As a result, the law firm was able to recover fees for representing itself in this litigation. (Mike Frisch)
Wednesday, October 14, 2015
An attorney must return $95,000 in fees paid by an estate, according to a recent decision of the North Dakota Supreme Court.
In August 2013, the beneficiaries of the Estate petitioned for court determination of reasonableness of fees and for settlement and distribution of estate. The petition objected to the fees charged by Magers and [attorney] Widdel for their services to the Estate and Trust. In September 2014, the district court found Magers had breached her fiduciary duty in several ways, which included paying Widdel large fees without question. The court also found administration of the Estate and Trust was not complicated and Widdel's fees were unreasonable in light of the nature of the work performed. The court ordered Widdel to return attorney's fees in the amount of $95,000.
The district court found that the estate was not complicated and that Widdel did not handle the litigation.
The attorney's "corporate veil" had been properly pierced
When a client engages the services of a lawyer, whether that lawyer is acting through the form of a professional organization or otherwise, the client has the right to expect preservation of a highly confidential relationship rooted in confidence, integrity, and professionalism. Such are the requirements expected of an officer of the court. Under the circumstances of this case, it would be inappropriate for Widdel to be allowed to hide behind the corporate veil and thus escape the professional and ethical requirements demanded by his profession.
And the district court properly found the fees unreasonable
In this case the district court considered the evidence and testimony before it and determined the fees collected by Widdel in his service to the Estate, as an attorney, were unreasonable. The district court did not abuse its discretion in determining the fees were unreasonable. The district court did not misinterpret or misapply the law in holding Widdel personally responsible for the unreasonable fees he charged.
Friday, September 11, 2015
Defendants in a legal malpractice claim were not entitled to judgment on statute of limitations grounds, according to a recent opinion of the South Carolina Supreme Court.
The court overruled prior precedent that started the running of the statute
In this legal malpractice case, Stokes-Craven Holding Corporation d/b/a Stokes-Craven Ford ("Stokes-Craven") appeals the circuit court's order granting summary judgment in favor of Scott L. Robinson and his law firm, Johnson, McKenzie & Robinson, L.L.C., (collectively "Respondents") based on the expiration of the three-year statute of limitations. Stokes-Craven contends the court erred in applying this Court's decision in Epstein v. Brown, 363 S.C. 372, 610 S.E.2d 816 (2005), and holding that Stokes-Craven knew or should have known that it had a legal malpractice claim against its trial counsel and his law firm on the date of the adverse jury verdict rather than after this Court affirmed the verdict and issued the remittitur in Austin v. Stokes-Craven Holding Corp., 387 S.C. 22, 691 S.E.2d 135 (2010). We overrule Epstein, reverse the circuit court's order, and remand the matter to the circuit court for further proceedings consistent with this opinion...
We overrule Epstein and now hold that the statute of limitations for a legal malpractice action may be tolled until resolution on appeal of the underlying case if the client has not become aware of the injury prior to the decision on appeal. We find this rule comports with the discovery rule and effectuates the purpose of the statute of limitations. Because the circuit court relied upon Epstein to hold that the statute of limitations began to run on the day of the jury's verdict, we reverse the court's grant of summary judgment without prejudice to either party's right to move for this relief under our newly announced statute of limitations standard for legal malpractice suits. Additionally, we find the circuit court abused its discretion in denying Stokes-Craven's motion to compel the production of communications between Respondents and their malpractice carrier because there was no evidence to support the court's ruling.
Chief Justice Toal dissented
In determining when the statute of limitations period commences for legal malpractice actions, the majority adopts a subjective standard that is dependent on whether "the client has  become aware of the injury prior to the decision on appeal." Because the General Assembly explicitly provided for an objective standard, rather than the majority's new subjective standard, I write separately.
The Chief Justice was joined by Justice Kittredge. (Mike Frisch)
Saturday, August 22, 2015
Yes in "rare circumstances," according to a recent ethics opinion by the Alaska State Bar
Under what circumstances, if any, may a lawyer post bail for a client?
Under rare circumstances a lawyer may post bail for a client, though the practice is discouraged.
An attorney asks whether it is ethically permissible to post bail for a client who is in custody.
Posting bail for a client raises several issues under the Alaska Rules of Professional Conduct, which help ensure that a lawyer can zealously represent a client without conflicting interests that could affect the quality of the representation. The Rules provide, for example, that a lawyer may not provide financial assistance to a client in connection with litigation or acquire a proprietary interest in the subject matter of litigation. Neither may a lawyer represent a client if the representation is adverse to a personal interest of the lawyer.
Each of these prohibitions, however, has exceptions. So, while a lawyer is generally prohibited from providing financial assistance to a client in connection with pending or contemplated litigation, a lawyer may advance court costs and expenses. And if a lawyer believes that he or she will be able to provide competent and diligent representation to a client despite their adverse interests, the lawyer may proceed with that representation after obtaining informed consent from the client.
Posting bail for a client imposes on the lawyer both contractual and financial constraints which could give rise to a situation in which the lawyer’s interests are materially adverse to the client’s, particularly if the client fails to comply with his or her conditions of release. Despite these ethical implications, posting bail does not fit squarely within the “costs of litigation” exception contemplated by Rule 1.8(e) nor the concurrent conflict of interest analysis contemplated by Rule 1.7(a)(2). Some jurisdictions interpret bail as akin to a cost of litigation, while the American Bar Association applies a concurrent conflict of interest analysis. While the Rules do not expressly address bail, they do provide analytical guidance.
Rule 1.7(b) contemplates limited exceptions to a concurrent conflict of interest where a lawyer’s ability to zealously represent the client’s interest is not compromised and the client consents. Rule 1.8(e) anticipates that a lawyer may pay for certain, limited expenses on a client’s behalf within the scope of the representation. Drawing from these exceptions, a lawyer may post bail for a client where the amount of bail is insignificant enough to not create a material limitation on the lawyer’s ability to represent the client. To ensure that a client understands the unique relationship that is created when the lawyer posts bail, a lawyer must obtain written informed consent from the client, specifying the surety provided and the scope of the liability the bail agreement imposes on the lawyer.
These considerations allow lawyers to facilitate the occasional client’s return to the community, which may assist with the representation. By limiting the acceptable circumstances to rare events, lawyers will avoid facing any significant risk that their ability to provide legal representation will be materially limited by the financial obligations posting bail requires. Similarly, by limiting the amount of bail to sums unlikely to materially limit a lawyer’s ability to represent a client, a lawyer diminishes the risk that the client’s noncompliance with the conditions of release would affect his or her ability to provide competent and diligent ongoing representation.
Approved by the Alaska Bar Association Ethics Committee on May 7, 2015.
Adopted by the Board of Governors on May 12, 2015.
Friday, August 21, 2015
An attorney prevailed in both a suit for legal fees and in dismissal of counterclaims of the former client in an opinion of the New York Appellate Division for the Second Judicial Department.
Here, the plaintiffs established, prima facie, their entitlement to judgment as a matter of law on the cause of action alleging breach of contract by submitting certain email exchanges between the parties, which demonstrated, "[b]y the plain language employed," that the plaintiffs made an offer to represent Landmark in each matter for a certain fee, and that Landmark accepted that offer (Kasowitz, Benson, Torres & Friedman, LLP v Duane Reade, 98 AD3d at 405). In one matter, the parties agreed that the plaintiffs would represent Landmark at a rate of $350 per hour. The invoices documenting the number of hours worked and the amount of disbursements paid out demonstrated, prima facie, the plaintiffs' entitlement to legal fees in the sum of $4,760 in connection with the services rendered for that matter. In the second matter, the agreement was for an initial retainer fee of $5,000, plus a 25% contingency fee with respect to any sums that Landmark ultimately recovered in that matter. Since it is undisputed that, shortly after the commencement of an action in connection with the second matter, Landmark entered into a stipulation of settlement whereby Landmark recovered $40,000, the plaintiffs established, prima facie, entitlement to their full fee of $5,000 plus a contingency fee of 25% of $40,000.
In opposition, Landmark failed to raise a triable issue of fact.
Landmark's counterclaim, which alleged tortious interference with contract and tortious interference with prospective business relations, was premised upon the plaintiffs' alleged contact with the third party with whom Landmark had entered into the stipulation of settlement in connection with the second matter. Specifically, Landmark alleged that, contrary to the terms of the stipulation, the plaintiffs requested that certain of the agreed-upon payments be made directly to them as Landmark's counsel, rather than to Landmark. The ostensible purpose of this communication was to ensure that the plaintiffs would be able to deduct their legal fees from the settlement funds.
The Supreme Court properly granted that branch of the plaintiffs' motion which was pursuant to CPLR 3211(a)(7) to dismiss so much of the counterclaim as alleged tortious interference with contract. A necessary element of such cause of action is the intentional and improper procurement of a breach and damages (see White Plains Coat & Apron Co., Inc. v Cintas Corp., 8 NY3d 422, 426). Here, Landmark failed to adequately plead facts that would establish that the plaintiffs, in communicating with the third party to secure their attorney's fees, intentionally procured that party's breach of the stipulation of settlement (see Dune Deck Owners Corp. v Liggett, 85 AD3d 1093, 1095).
To the extent that the counterclaim sought recovery based on a theory of tortious interference with prospective business relations, the Supreme Court properly granted that branch of the plaintiffs' motion which was pursuant to CPLR 3211(a)(7) to dismiss that portion of the counterclaim. A claim for tortious interference with prospective business relations does not require a breach of an existing contract, but the party asserting the claim must meet a "more culpable conduct" standard (NBT Bancorp. v Fleet/Norstar Fin. Group, 87 NY2d 614, 621). This standard is met where the interference with prospective business relations was accomplished by wrongful means or where the offending party acted for the sole purpose of harming the other party (see Carvel Corp. v Noonan, 3 NY3d 182, 190; Caprer v Nussbaum, 36 AD3d 176, 204). " Wrongful means' include physical violence, fraud or misrepresentation, civil suits and criminal prosecutions, and some degrees of economic pressure" (Guard-Life Corp. v Parker Hardware Mfg. Corp., 50 NY2d 183, 191, quoting Restatement [Second] of Torts §§ 768, Comment e and 767, Comment c). As a general rule, the offending party's conduct must amount to a crime or an independent tort, as conduct that is neither criminal nor tortious will generally be "lawful" and thus insufficiently "culpable" to create liability for interference with prospective business relations (Carvel Corp. v Noonan, 3 NY3d at 190 [internal quotation marks omitted]). The mere violation of an attorney disciplinary rule will only create liability if actual damages are incurred as a result of the violating conduct (see Tabner v Drake, 9 AD3d 606, 610). In addition, where the offending party's actions are motivated by economic self-interest, they cannot be characterized as solely malicious (see Out of Box Promotions, LLC v Koschitzki, 55 AD3d 575, 577). Here, contrary to the conclusion of our dissenting colleague, the allegations in the counterclaim do not establish the elements of tortious interference with prospective business relations. The allegations that the plaintiffs contacted a settling party to protect [*2]their attorney's fees after having been discharged as Landmark's counsel, while arguably alleging a violation of a disciplinary rule, do not, without more, allege that the plaintiffs' acts constituted a crime, or an independent tort, or that the plaintiffs acted solely for the purpose of harming Landmark (see Worldcare Intl., Inc. v Kay, 119 AD3d 554, 556-557; Adler v 20/20 Cos., 82 AD3d 915, 918).
A dissent by Justice Duffy on the tortious interference with business relations count
Although I agree with the majority's position that the plaintiff attorney was motivated by his desire to ensure that he received the fees he contended that Landmark owed him and that, with such motives, the plaintiff attorney's actions cannot be considered "solely malicious," the majority appears to require that, absent facts alleging that the plaintiffs engaged in conduct with the sole purpose of harming Landmark, Landmark failed to state a cause of action for tortious interference with prospective business relations. To the extent that the majority requires that, in order to avoid dismissal of this claim, Landmark had to set forth facts alleging that the plaintiffs engaged in conduct with the sole purpose of harming Landmark and that they did so by means that were unlawful or improper, I disagree. Such an analysis is more rigorous than that applied by the Court of Appeals (citations omitted) in evaluating the sufficiency of a cause of action alleging tortious interference with prospective business relations. To make out a claim for tortious interference with business relations where, as here, the alleged interference was with prospective contractual relationships, rather than existing contracts, the proponent must show that the other party interfered with the proponent's business relationships either with the sole purpose of harming the movant or by means that were unlawful or improper...I submit that Landmark's allegation that the plaintiff attorney interfered with Landmark's business relationships by means that were unlawful or improper—to wit, that he held himself out as counsel for Landmark when he no longer represented it—was sufficient to withstand that branch of the motion which was to dismiss the counterclaim...
The Court of Appeals has enunciated a general rule that, to be sufficiently "culpable" to create liability for tortious interference with prospective business relations, the alleged conduct must amount to a crime or an independent tort (Carvel Corp. v Noonan, 3 NY3d at 190). However, the Court of Appeals did not preclude "other instances of conduct which, though not a crime or tort in itself," are so culpable that they could be the basis of such a claim (id.). Here, the facts alleged by Landmark, that the plaintiff attorney held himself out to be Landmark's counsel when he no longer represented Landmark, in order to obtain money the plaintiffs contend was owed to him by Landmark, if true, would constitute a breach of fiduciary duty as well as a violation of the ethical rules that govern the conduct of attorneys (see Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.8[f] ["A lawyer shall not accept compensation for representing a client, or anything of value related to the lawyer's representation of the client, from one other than the client unless: (1) the client gives informed consent"]; see generally Matter of Cooperman, 83 NY2d 465, 472).
I also disagree with the majority's assertion that, without a concomitant allegation of actual damages, an allegation that, if true, may constitute a violation of an attorney disciplinary rule cannot meet the culpable conduct element required to plead tortious interference with prospective business relations sufficient to defeat the motion to dismiss in this matter. The analysis adopted by the majority is one applied in the context of determining whether a cause of action for legal malpractice has been established (see Tabner v Drake, 9 AD3d at 610), but is not the analysis this Court already has applied in determining the culpable conduct necessary to establish a claim of tortious interference with prospective business relations. In Lyons v Menoudakos & Menoudakos, P.C. (63 AD3d at 802), this Court held that an attorney's violation of a disciplinary rule and his professional obligations was sufficient to demonstrate the culpable conduct required for a claim of tortious interference with prospective business relations so as to withstand a motion for summary judgment. In that case, this Court noted that, to constitute "culpable conduct," the conduct must amount to a crime or an independent tort, and may include " [w]rongful means'" defined as " physical violence, fraud or misrepresentations, civil suits and criminal prosecutions, and some degrees of economic pressure'" (id. at 802, quoting Guard-Life Corp. v Parker Hardware Mfg. Corp., 50 NY2d at 191, and citing Carvel Corp. v Noonan, 3 NY3d at 190-193, and Smith v Meridian Tech., Inc., 52 AD3d 685, 687). In Lyons, this Court took note of the various ethical obligations of the defendant in that matter, who had been the attorney for the seller in a real estate transaction and allegedly wished to purchase the property for himself (see Lyons v Menoudakos & Menoudakos, P.C., 63 AD3d at 802). This Court held that "[e]vidence of a violation of a [*4]disciplinary rule is relevant to the question of tort liability," and concluded that the defendant had failed to eliminate all triable issues of fact as to whether his judgment was affected by his personal interest in the transaction and whether he furthered that interest by making misrepresentations to the seller about the creditworthiness of the plaintiff, thereby wrongfully interfering with the prospective transaction (id.). Here, as in Lyons, the allegations of the plaintiff attorney's violations of his ethical obligations, if true, would meet the culpable conduct element necessary to state a cause of action for tortious interference with prospective business relations.
Thursday, July 30, 2015
The South Carolina Supreme Court reversed and remanded a case where the Court of Appeals had held that a legal malpractice defendant could not be liable for a task delegated to a title company
In this attorney malpractice case, Amber Johnson alleges her closing attorney, Stanley Alexander, breached his duty of care by failing to discover the house Johnson purchased had been sold at a tax sale the previous year. The trial court granted partial summary judgment in favor of Johnson as to Alexander's liability. On appeal, the court of appeals held Alexander could not be held liable as a matter of law simply because the attorney he hired to perform the title work may have been negligent. Instead, the court determined the relevant inquiry was "whether Alexander acted with reasonable care in relying on [another attorney's] title search"; accordingly, it reversed and remanded. Johnson v. Alexander, 408 S.C. 58, 64, 757 S.E.2d 553, 556 (Ct. App. 2014). We disagree and find the trial court properly granted summary judgment as to liability. We therefore remand to the trial court for a hearing on damages.
In determining the scope of Alexander's duty, we accept his consistent characterization of this responsibility—ensuring Johnson received good title. In her complaint, Johnson alleged "[d]efendants had professional duties to ensure that Plaintiff was receiving good and clear title to the subject property free of any encumbrances, liens, or clouds on title before conducting the closing and if there was a problem after the closing, to correct said deficiencies and/or advise Plaintiff how to correct said deficiencies." In Alexander's answer he admitted those allegations...
However, even absent Alexander's admissions, we find the court of appeals erroneously equated delegation of a task with delegation of liability. Certainly Feeley's negligence is the issue here, but that does not displace Alexander's ultimate responsibility. While an attorney may delegate certain tasks to other attorneys or staff, it does not follow that the attorney's professional decision to do so can change his liability to his client absent that client's clear, counseled consent. See Rule 1.8(h), RPC, RULE 407, SCACR ("A lawyer shall not. . . make an agreement prospectively limiting the lawyer's liability to a client for malpractice unless the client is independently represented in making the agreement."). Thus, Alexander owed Johnson a duty and absent her agreement otherwise, he was liable for that responsibility regardless of how he chose to have it carried out.
We therefore agree with Johnson that an attorney is liable for negligence in tasks he delegates absent some express limitation of his representation. Stated another way, without an express limitation in representation, attorneys cannot delegate liability for tasks that are undertaken in carrying out the duty owed the client.
Friday, July 17, 2015
The statute of limitations ran on a legal malpractice plaintiff, according to a decision of the New York Appellate Division for the Second Judicial Department.
...contrary to the plaintiff's contention, the defendant did not waive its statute of limitations defense, asserted in its answer, by failing to make a pre-answer motion to dismiss. Rather, a statute of limitations defense may be asserted after joinder of issue in a motion for summary judgment pursuant to CPLR 3212. Although the defendant's motion was made pursuant to 3211(a)(5), the parties clearly charted a summary judgment course by submitting extensive documentary evidence and factual affidavits laying bare their proof, Thus, the defendant's motion is properly treated as a motion for summary judgment dismissing the complaint as time-barred.
Further, the Supreme Court properly concluded that the plaintiff's legal malpractice cause of action is time-barred. The defendant met its prima facie burden of demonstrating that the action was commenced more than three years after the alleged malpractice occurred. In opposition, the plaintiff failed to raise a triable issue of fact as to whether the statute of limitations was tolled by continuous representation. In that respect, the evidence demonstrated that after the plaintiff and her husband retained the defendant law firm to represent them in a personal injury action, the defendant law firm retained the law firm of Bauman & Kunkis, P.C. (hereinafter Bauman & Kunkis), to represent the plaintiff and her husband in that action, and thereafter had no contact with the plaintiff. All of the work on the case, from filing the pleadings to selecting a jury, was performed by Bauman & Kunkis. Before the case could be tried, it was dismissed based on willful default, and Bauman & Kunkis was substituted with a different law firm, which sought to restore the action. Even if the arrangement between the defendant and Bauman & Kunkis could be equated with joint representation, under the circumstances of this case, the defendant's representation of the plaintiff would have terminated as of December 1, 2006, the date on which Bauman & Kunkis was substituted. Accordingly, the present legal malpractice cause of action, commenced on or about April 9, 2012, was untimely. (citations omitted)
Wednesday, July 15, 2015
The Maine Supreme Judicial Court affirmed the grant of summary judgment to a lawyer sued for malpractice based on his alleged negligence in a workers' compensation matter
Allen argues that she suffered a measureable loss due to McCann’s failure to advise her to perform a work search. However, Allen settled with her employer, and because of the settlement, her proffered damages calculation is speculative. Attorney MacAdam’s assertion, without further detail or explanation, that he believes that he could have settled for more had Allen been receiving an additional $150 per week in workers’ compensation benefits, does not provide a foundation upon which a jury could assess damages without resort to speculation. The other party to the settlement, the employer, certainly has its own settlement criteria, which may or may not have focused upon the weekly benefit rate. Because the factors producing a settlement cannot be ascertained or weighed in hindsight, attempting to calculate an award of damages is speculative. Summary judgment was correctly granted.
The malpractice issue arose after new counsel got involved
In March 2009, Allen hired attorney James MacAdam to represent her in her workers’ compensation claim, replacing McCann. MacAdam advised Allen to do a work search, which she did unsuccessfully, beginning in April 2009. MacAdam sought to use the work search to obtain an increase in Allen’s workers’ compensation benefits, but Allen’s employer raised a res judicata defense. In December 2010, MacAdam sent a settlement demand for $350,000 on behalf of Allen to her employer, and in July 2012, Allen settled her workers’ compensation claim for $300,000.
Tuesday, July 14, 2015
Some claims of legal malpractice survived motions to dismiss in a matter in which a law firm was disqualified as a result of a conflict of interest, according to a recent opinion of the New York Appellate Division for the Second Judicial Department.
the plaintiffs retained the defendant law firm Gusrae Kaplan Nusbaum, PLLC (hereinafter GKN), to represent them in an ongoing legal malpractice and fee dispute action, and to represent nonparty Nikolay Minkin, a liaison for the plaintiffs, in a related third-party indemnification action. GKN represented the plaintiffs and Minkin until April 24, 2012, when the Supreme Court disqualified GKN from continuing that representation due to a conflict of interest in representing both the plaintiffs and Minkin.
On a motion to dismiss based on documentary evidence
"To succeed on a motion to dismiss based upon documentary evidence pursuant to CPLR 3211(a)(1), the documentary evidence must utterly refute the plaintiff's factual allegations, conclusively establishing a defense as a matter of law" (Gould v Decolator, 121 AD3d 845, 847; see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326;Leon v Martinez, 84 NY2d 83, 88). On a motion pursuant to CPLR 3211(a)(7) to dismiss for failure to state a cause of action, the court must accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d at 326; Leon v Martinez, 84 NY2d at 87-88).
The Supreme Court erred in granting that branch of GKN's motion which was pursuant to CPLR 3211(a)(1) to dismiss the fourth cause of action. The fourth cause of action sought to recover damages for legal malpractice due to GKN's alleged misrepresentation that it had filed a motion to reargue on the plaintiffs' behalf. While the documentary evidence submitted by GKN in support of its motion established that such a motion was prepared, the motion itself indicates that it was not filed until after GKN ceased representing the plaintiffs.
The Supreme Court also erred in granting that branch of GKN's motion which was to dismiss the sixth cause of action, alleging unjust enrichment. "To prevail on a claim of unjust enrichment, a party must show that (1) the other party was enriched, (2) at that party's expense, and (3) that it is against equity and good conscience to permit [the other party] to retain what is sought to be recovered" (Citibank, N.A. v Walker, 12 AD3d 480, 481 [internal quotation marks omitted]; see Marini v Lombardo, 79 AD3d 932, 934; Cruz v McAneney, 31 AD3d 54, 59). The complaint alleged that the plaintiffs paid GKN large sums of money, which purportedly represented legal fees associated with the work being performed on the plaintiffs' behalf. The complaint further alleged that, in light of the allegations of, among other things, legal malpractice, GKN had been unjustly enriched by those payments and GKN's retention of that money violated "fundamental principals of justice, equity, and good conscience." GKN did not address those allegations on its motion to dismiss, other than to claim lawful entitlement to the money as fees earned and billed. Accordingly, the Supreme Court erred in determining that the complaint failed to state a cause of action alleging unjust enrichment (see CPLR 3211[a]).
The trial court had dismissed the entire lawsuit. (Mike Frisch)
Thursday, July 9, 2015
The United States Court of Appeals for the Fourth Circuit affirmed the denial of habeas corpus relief to a defendant who had relied on his attorney's advice to plead guilty in West Virginia state court to armed robbery and malicious assault.
Under the circumstances, we have no trouble concluding that the Supreme Court of Appeals of West Virginia could have reasonably found that Christian had little hope of prevailing at trial on the charges and was “lucky to receive the deal that he did.[..]”
Here, abundant evidence exists to support a factual finding that Christian’s guilty plea was driven not by his sentencing exposure at all, which everyone agrees was onerous, but rather by his recognition from the outset that he had little hope of defeating either the federal or state charges against him, or of living long enough to get out of prison at all, and by his desire to spend as much of his remaining life as possible in federal prison. Christian may well have developed “buyer’s remorse."
Circuit Judge Gregory wrote a powerful dissent
The majority goes to great lengths to disguise the simple truths of this case: Counsel gave bad advice to a client, and the client relied on the advice in deciding to plead guilty and forgo his constitutional right to a trial. I respectfully dissent...
Despite the thin veneer of ‘hypotheticals’, [defense counsel] Henderson’s testimony clearly establishes that (1) Christian told him of the two prior felony convictions; (2) Henderson did no further investigation to determine the date or nature of the prior felonies; (3) on the basis of Christian’s disclosure, Henderson advised him that he faced a possible mandatory minimum life sentence if convicted of any of the new charges; and (4) the advice Henderson gave was incorrect because under no circumstances did Christian face such a sentence if convicted...
Here, Henderson failed to investigate his client’s criminal record – either by asking more questions or pulling a file – when accurate information was critical to the client’s ability to make an informed, intelligent choice about whether to accept a plea deal. Indeed, Christian made clear during plea negotiations that his desire to avoid a recidivism enhancement was a significant motivating factor for accepting a deal – as revealed by the letter Henderson wrote to the government expressing Christian’s demand that “THERE WILL BE NO RECIDIVIST FILED”. J.A. 597. Doing a minimally sufficient investigation into Christian’s record would have involved very little effort, requiring a simple examination of the dates of the two prior felony convictions. And the reward would have been significant, fundamentally changing Christian’s calculus in deciding whether to forgo his Sixth Amendment right to a trial...
Of course, as the majority points out, it is possible that Christian would have received a lengthy sentence if he had chosen to go to trial. But the Sixth Amendment right to a public trial does not exist solely when a trial would be in a defendant’s best interests. The record here compels a conclusion that it is reasonably probable Christian would have exercised this constitutional right if he received accurate advice.
Tuesday, July 7, 2015
The opinion of the Washington State Court of appeals denying a plaintiff attorney access to information that would identify an anonymous Avvo poster is linked here.
What showing must be made by a defamation plaintiff seeking disclosure of an anonymous speaker's identity? This is an open question in Washington. Thomson brought a defamation suit against Doe, an anonymous poster who wrote a negative review of Thomson on Avvo.com. Thomson then subpoenaed Avvo seeking Doe's identity. When Avvo refused to provide the information, Thomson moved to compel Avvo's compliance with the subpoena. The trial court denied Thomson's motion, finding that Thomson had not made a prima facie claim of defamation. We affirm.
Thompson is a Florida attorney who sued as a result of this post
I am still in court five years after Ms. Thomson represented me during my divorce proceedings. Her lack of basic business skills and detachment from her fiduciary responsibilities has cost me everything. She failed to show up for a nine hour mediation because she had vacation days. She failed to subpoena documents that are critical to the division of assets in any divorce proceeding. In fact, she did not subpoena any documents at all. My interests were simply not protected in any meaningful way.
Thomson's complaint alleged that Doe was not a client and that the post was designed to impugn Thomson's personal and professional reputation. Thomson alleged four causes of action: defamation, defamation per se, defamation by implication, and intentional infliction of emotional distress (MED).
The court concluded that the First Amendment protects the right to post anonymously.
Hat tip to the ABA Journal. (Mike Frisch)
Wednesday, July 1, 2015
A recent decision of the Arizona Supreme Court
Agreements between parties or attorneys in civil lawsuits are not binding if disputed unless they are evidenced by a writing or made orally in court. Ariz. R. Civ. P. 80(d). We here consider whether Rule 80(d) makes a written settlement agreement unenforceable because it lacked the written assent of clients who dispute their attorney’s authority to make the agreement. Holding that no such written assent is required and that the agreement here satisfied Rule 80(d), we also conclude that it is enforceable because the attorney acted within the apparent authority given by his clients.
Petitioners (“the Robertson Group”) sued neighboring property owners (“the Alling Group”) concerning a water line. On January 29, 2013, the parties and their attorneys attended a mediation but did not reach an agreement. At the end of the mediation, the Alling Group, represented by attorney Mark Sifferman, made a settlement offer requiring acceptance within forty-eight hours.Hours before the offer expired, Robert Grasso, the Robertson Group’s attorney, told Sifferman that the Robertson Group needed more time to respond to the offer because one group member had a family emergency. Grasso proposed that the attorneys discuss the offer the next week. Sifferman did not extend the January 31 deadline, and the offer expired.
Sifferman advised his clients of Grasso’s request and recommended they “leave the door open” for settlement. Two of the Alling Group members emailed Sifferman on February 4 stating that they and others favored “removing the settlement offer proposed in the mediation.” But Sifferman did not read the email and mistakenly thought all his clients were willing to settle on the terms previously conveyed to the Robertson Group.
On February 6, after talking with another attorney at Grasso’s law firm, Sifferman sent that attorney an email extending a new settlement offer with terms that mirrored the prior offer but would expire at 5:00 p.m. on February 8. Grasso timely accepted the offer via email. Later, after Grasso’s law firm had informed the trial court of the settlement (the “February 8 settlement”) and circulated draft settlement documents, Sifferman discovered he had lacked authority to extend the settlement offer. After conferring with his clients, Sifferman made a new settlement offer, which materially varied from the February 8 settlement.
The Robertson Group moved to enforce the February 8 settlement. Without an evidentiary hearing, the trial court granted the motion, ruling that Sifferman had actual and apparent authority to extend the settlement offer and, alternatively, that the Alling Group was equitably estopped from disputing that authority. The court also ruled that Arizona Rule of Civil Procedure 80(d) did not apply but, if it did, the emails exchanged between counsel satisfied the rule.
The court here reversed the Court of Appeals, which had found that the settlement was not enforceable.
...we hold that the Alling Group’s actions allowed the Robertson Group to reasonably assume that Sifferman had authority to keep a settlement offer on the table or reoffer the same settlement terms days after the agreement’s expiration, and the Robertson Group reasonably relied on the attorney’s apparent authority...
Rule 80(d) applies only if a party disputes the existence or terms of an agreement. If such a dispute exists, the rule can be satisfied by writings exchanged by counsel. Rule 80(d) does not also require the written assent of a client who disputes that it is bound by the agreement. Because the parties here do not dispute the existence or terms of the February 8 settlement, Rule 80(d) does not apply. Finally, because the evidence shows that Sifferman was cloaked with apparent authority to bind the Alling Group to the February 8 settlement, the trial court correctly enforced the agreement. We vacate the court of appeals’ opinion, affirm the trial court’s judgment, and award the Robertson Group its reasonable attorney fees on appeal.
Tuesday, June 16, 2015
A law firm was entitled to summary judgment on fees charged a client in one matter but not a second representation, according to an opinion of the New York Appellate Division for the First Judicial Department.
Plaintiff [Boies, Schiller & Flexner] established prima facie that it entered into a retainer agreement with defendant and sent her regular invoices pursuant thereto, and that, after plaintiff withdrew from representation, defendant paid more than $400,000 towards those bills, with a promise to pay the remainder in exchange for plaintiff's agreement to represent her a second time in the same or related matters (Morrison Cohen Singer & Weinstein, LLP v Waters, 13 AD3d 51 [1st Dept 2004]; Levisohn, Lerner, Berger & Langsam v Gottlieb, 309 AD2d 668 [1st Dept 2003], lv denied 1 NY3d 509 ). Accordingly, plaintiff is entitled to summary judgment on its account stated claim for the outstanding amount of $30,525 for bills dated July 31, 2012, August 20, 2012, and September 20, 2012, in connection with the first representation.
However, as plaintiff withdrew and then agreed to represent defendant again, defendant's partial payments in connection with the first representation cannot be construed as consent to the amounts due in connection with the second representation. Accordingly, plaintiff is not entitled to summary judgment to the extent the account stated claim is based on work performed and invoiced for October 2012 through February 2013, i.e., during the second representation.
While the parties agree that defendant paid the October 2012 bill, purportedly for work performed in September 2012, the record does not conclusively establish the services billed for in that invoice, including whether the invoice related to the first or second representation. Coupled with defendant's objections to and refusal to pay any subsequent invoice, the payment of the October 2012 bill does not suffice to eliminate any triable issue of fact as to defendant's consent to the amounts due under later invoices.
Moreover, defendant averred that she called plaintiff within a day or two after receiving each invoice, spoke to the lawyer primarily handling her case and her assistant, and objected that she did not understand the charges, that they appeared to be unwarranted, and that she could not pay. This evidence of defendant's oral objections is sufficiently detailed to create a triable issue of fact as to her consent to the amounts due (compare Darby & Darby v VSI Intl., 95 NY2d 308, 315  ["self-serving, bald allegations of oral protests" insufficient to raise issue of fact]; Zanani v Schvimmer, 50 AD3d 445 [1st Dept 2008] [assertion of oral objection to bills insufficient because the defendant failed to state when objection was made or specific substance thereof]).
As plaintiff correctly notes, numerous emails cited in an affidavit by defendant's daughter (who exercised a power of attorney on defendant's behalf) and relied upon by the motion court, when read in context, fail to raise any specific, timely objections to any bills. However, [*2]defendant's oral objections are supported by at least two emails to plaintiff from defendant's daughter, advising plaintiff on December 31, 2012, that she intended to go over the "outlandish bills" with her accountant, and on January 25, 2013, that she would not pay any bills until they were reviewed by the accountant (see RPI Professional Alternatives, Inc. v Citigroup Global Mkts. Inc., 61 AD3d 618 [1st Dept 2009]; see also Herrick, Feinstein v Stamm, 297 AD2d 477, 479 [1st Dept 2002]).
The breach of contract counterclaim should be dismissed since defendant fails to identify any provision of the retainer agreement that promises to produce a particular result, rather than setting forth general professional standards (see Boslow Family Ltd. Partnership v Kaplan & Kaplan, PLLC, 52 AD3d 417 [1st Dept 2008], lv denied 11 NY3d 707 ; Sarasota, Inc. v Kurzman & Eisenberg, LLP, 28 AD3d 237 [1st Dept 2006]).
The motion court correctly declined to dismiss the affirmative defenses at this point in the litigation since they are supported by more than bare legal conclusions (see Robbins v Growney, 229 AD2d 356, 358 [1st Dept 1996]).
The defendant is the widow of the former chairman of Modell's Sporting Goods. (Mike Frisch)
Friday, June 5, 2015
A criminal defendant was convicted at trial of multiple counts of sexual conduct against a child. The conviction was reversed based on a finding of ineffective assistance of counsel.
The defendant, represented by new counsel, was acquitted at a second trial.
She then sued her first counsel for legal malpractice.
The New York Appellate Division for the Second Judicial Department held that the trial court should have granted summary judgment to the defendant attorney.
Here, the defendant met his initial burden of demonstrating, prima facie, that the plaintiff is unable to prove the element of causation. Specifically, the defendant submitted admissible evidence demonstrating that the plaintiff's convictions after her first trial were not due solely to the defendant's conduct, but were also the result of other factors, including those arising from "some consequence of [her] guilt" (Britt v Legal Aid Socy., 95 NY2d at 447). The evidence submitted by the defendant included graphic testimony of the plaintiff's own children, admitted into evidence at the first trial, which detailed numerous acts of sexual abuse committed by the plaintiff against them. In opposition, the plaintiff failed to raise a triable issue of fact as to whether her convictions after the first trial were due solely to the defendant's conduct (see id.)
The court further held that "the plaintiff's claims for nonpecuniary damages, including physical and psychological injuries allegedly sustained while she was incarcerated following the first trial, are not recoverable in a legal malpractice action." (Mike Frisch)
Sunday, May 31, 2015
The Montana Supreme Court has reversed and remanded with spoilation sanctions a verdict in favor of defendant BNSF Railway based on its failure to preserve a video of the accident of an employee plaintiff.
BNSF is a seasoned and sophisticated corporate litigant well aware of its obligations when responding to workplace violations and employee injuries and accidents. These obligations include the retention of evidence relevant to injury claims. In this case, BNSF supervisors took immediate action within minutes of Spotted Horse’s alleged accident. While Price drove Spotted Horse to the hospital for medical treatment, BNSF supervisors began gathering and analyzing information related to the incident. Within hours of the alleged accident, according to testimony, three individuals viewed a brief portion of the video footage from one camera in the shop stall where Spotted Horse and Syverson were apparently working. And yet–inexplicably–this and other video footage from the shop was not retained...
We reject the notion that BNSF is entitled to unilaterally determine which evidence is relevant or valuable when investigating an alleged work-related accident preceding litigation. Such a decision must be left to the trial court.
Justice Wheat would order default
I agree with the Court’s decision to reverse the judgment of the District Court and to order more serious spoliation sanctions against BNSF on remand. I would, however, remand to the District Court with an instruction to enter default judgment, because the audacity of the spoliation in this case warrants more than a mere negative inference in favor of Spotted Horse...
Montana courts should not shrink from granting default judgment where, as here, spoliation is willful, in bad faith, or knowingly committed in order to obscure the truth and to prevent accurate decision making. By failing to take such action when it is warranted, we fail the spoliation victim and our system of justice, while at the same time rewarding the spoliator with the result he or she sought: an advantage in litigation. By failing to take such action, we set the stage with perverse incentives and encourage further spoliation. Until we are willing to respond with sanctions commensurate to the damage caused by intentional spoliation – that is, with default judgment – the reward from destroying evidence will continue to outweigh the risk.
Justice McKinnon dissented and would affirm the trial court's exercise of discretion. (Mike Frisch)
Wednesday, May 6, 2015
A client's failure to pursue a potentially successful appeal barred a claim of legal malpractice against the attorney, according to an opinion of the New York Appellate Division for the Second Judicial Department.
Summary judgment was also affirmed where the attorneys discontinued a claim against a non-negligent defendant in the underlying medical malpractice case.
Karen Buczek, and her husband asserting a derivative cause of action, commenced this action alleging, inter alia, that the defendants committed legal malpractice in the prosecution of an underlying medical malpractice action. The plaintiffs alleged that the underlying medical malpractice action was voluntarily discontinued by the defendant attorneys insofar as asserted against North Shore University Hospital (hereinafter the Hospital) due to the defendants' legal malpractice, and that the complaint insofar as asserted against the other defendants in the underlying action was dismissed due to the defendants' failure to prosecute the action.
The defendants moved for summary judgment dismissing the complaint. They argued that the alleged instances of legal malpractice did not proximately cause the plaintiffs' damages. The defendants contended that the plaintiffs' action insofar as asserted against the Hospital would not have been successful since the Hospital staff involved in the underlying medical procedures properly carried out the directions of the attending private physicians and did not engage in any independent negligent acts. They contended, thus, that they properly consented to discontinue the action insofar as asserted against the Hospital. The defendants also contended that the court in the underlying action erred as a matter of law in dismissing the complaint insofar as asserted against the other defendants for failure to prosecute. The defendants argued that if the plaintiffs had appealed from the order dismissing the action, the order would have been reversed and the complaint insofar as asserted against the other defendants would have been reinstated. The Supreme Court denied the defendants' motion.
As to the remaining defendants in the med mal case
The failure to pursue an appeal in an underlying action bars a legal malpractice action where the client was likely to have succeeded on appeal in the underlying action (see Grace v Law, 24 NY3d 203, 206-207; see also Rupert v Gates & Adams, P.C., 83 AD3d 1393, 1396). The Court of Appeals has stated that this "likely to succeed" standard "obviate[s] premature legal malpractice actions by allowing the appellate courts to correct any trial court error and allow[s] attorneys to avoid unnecessary malpractice lawsuits by being given the opportunity to rectify their clients' unfavorable result" (Grace v Law, 24 NY3d at 210). By establishing that an appeal would likely have been successful, a defendant in a legal malpractice action can establish that the alleged negligence did not proximately cause the plaintiff's damages (see id.).