Wednesday, November 19, 2014

Incomprehensible Hodgepodge Dooms Malpractice Suit

The Montana Supreme Court affirmed the grant of summary judgment to the defendant in a legal maplractice case.

The pro se plaintiff sought a modest $12 million in damages but failed to identify an expert and gave insufficient responses to discovery requests.

Wylie’s complaint against Balaz was over forty pages long and asked for millions of dollars in damages. The District Court found, however, that the complaint “contains no discernable facts in support of her allegations of legal malpractice” and that Balaz’s discovery requests were “appropriate questions” in a legal malpractice case. Any party to civil litigation has an obligation to provide required responses to discovery requests, and yet after almost a year and an order from the District Court, Wylie did not answer “the most basic discovery requests to show that she had any evidence in support of her claim.” Wylie simply re-served her first incomplete and inadequate discovery responses, but included additional material that the District Court described as a “hodgepodge of sheets of paper that are not identified in any way, not specifically referenced to any discovery answers, and all of which are totally incomprehensible.”

(Mike Frisch)

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

Monday, November 10, 2014

Failure To Communicate Plea Offer Amounts To Ineffective Assistance Of Counsel

The South Carolina Court of Appeals has found ineffective assistance of counsel in a case where the defendant was not advised of a ten-year plea offer before going to trial and getting twenty.

In this case, trial counsel testified the plea offer was for ten years imprisonment. Bell was sentenced to twenty years' imprisonment. The difference is evidence of his prejudice. See id. (concluding the difference in the sentence received and the plea offer was proof of prejudice). Furthermore, Bell testified he would have taken the State's plea offer had trial counsel told him about it, and the PCR court found Bell's testimony credible. Although self-serving, the statement is also evidence supporting the PCR court's finding of prejudice. See id. at 613, 675 S.E.2d at 422 ("[D]epending on the facts of the case, a defendant's self-serving statement may be sufficient to establish actual prejudice."). Deferring credibility matters to the PCR court, we find evidence to support the finding. See Simuel, 390  S.C. at 270, 701 S.E.2d at 739 ("This [c]ourt gives great deference to a PCR judge's findings where matters of credibility are involved.").

The offense was armed robbery. (Mike Frisch)

November 10, 2014 in Clients | Permalink | Comments (0) | TrackBack (0)

Friday, October 31, 2014

Local Expert Not Required For Legal Malpractice Claim

The South Dakota Supreme Court affirmed and reversed in part and remanded a trial court grant of summary judgment to the defendants in a legal malpractice case.

The case involved a conflict of interest claim against a law firm that had represented three defendants in litigation over bee sites. The plaintiff here was a beekeeper.

The representation had broken down when the other clients wished to settle. The opposing party insisted that all of the clients settle or none could but the plaintiff here balked.

The trial court erred in excluding the plaintiff's expert witness, then a partner of a Minneapolis law firm and now a justice of the Minnesota Supreme Court.

Analyzing the facts in this case, in regard to the conflicted representation claim, we note that [expert winess] Lillehaug wrote in his expert report that "the applicable standard of care is consistent with, and well stated by, Rule 1.7." He noted how South Dakota’s Rules of Professional Conduct Rule 1.7 is identical to the American Bar Association’s Model Rules of Professional Conduct Rule 1.7. Then, during his deposition, Lillehaug testified that a national standard of care applied to legal ethics...

The Court noted that "in many cases locality is not relevant to the application of the standard of care."  Thus, the expert testimony should have been allowed.

Further, the court found that the trial court improperly weighed the evidence in granting summary judgment to the defendants.

Chief Justice Gilbertson dissented and would retain the locality rule as a consideration in qualifying a legal malpractice expert witness:

The Court’s decision today to remove the consideration of locality from the expert witness qualification process is unnecessary and limits a circuit court’s ability to ensure that expert witnesses do, in fact, possess heightened expertise on whatever issue they are called upon to explain. Simply declaring that we apply a state or national standard does not actually remove the local legal peculiarities that attorneys in this state must handle on a daily basis. For the above reasons I would retain the locality rule.

A thought: perhaps the law of representing multiple clients  in bee site matters is a localized issue.

Then again, perhaps not.

In any event, law professors would have to give the attorneys here a bee grade. (Mike Frisch)

October 31, 2014 in Clients | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 29, 2014

Privity Relaxed In South Carolina

South Carolina now recognizes that a beneficiary of a will or trust may sue the attorney for drafting errors:

Erika Fabian (Appellant) brought this action for legal malpractice and breach of contract by a third-party beneficiary, alleging attorney Ross M. Lindsay, III and his law firm Lindsay & Lindsay (collectively, Respondents) made a drafting error in preparing a trust instrument for her late uncle and, as a result, she was effectively disinherited. Appellant appeals from a circuit court order dismissing her action under Rule 12(b)(6), SCRCP for failure to state a claim and contends South Carolina should recognize a cause of action, in tort and in contract, by a third-party beneficiary of a will or estate planning document against a lawyer whose drafting error defeats or diminishes the client's intent. We agree, and we reverse and remand for further proceedings.

The court's reasoning

Recognizing a cause of action is not a radical departure from the existing law of legal malpractice that requires a lawyer-client relationship, which is equated with privity and standing. Where a client hires an attorney to carry out his intent for estate planning and to provide for his beneficiaries, there is an attorney-client relationship that forms the basis for the attorney's duty to carry out the client's intent. This intent in estate planning is directly and inescapably for the benefit of the third-party beneficiaries. Thus, imposing an avenue for recourse in the beneficiary, where the client is deceased, is effectively enforcing the client's intent, and the third party is in privity with the attorney. It is the breach of the attorney's duty to the client that is the actionable conduct in these cases.

 In these circumstances, retaining strict privity in a legal malpractice action for negligence committed in preparing will or estate documents would serve to improperly immunize this particular subset of attorneys from liability for their professional negligence. Joining the majority of states that have recognized causes of action is the just result. This does not impose an undue burden on estate planning attorneys as it merely puts them in the same position as most other legal professionals by making them responsible for their professional negligence to the same extent as attorneys practicing in other areas.

And holding

 We recognize a cause of action, in both tort and contract, by a third-party beneficiary of an existing will or estate planning document against a lawyer whose drafting error defeats or diminishes the client's intent. Recovery under either cause of action is limited to persons who are named in the estate planning document or otherwise identified in the instrument by their status. Where the claim sounds in both tort and contract, the plaintiff may elect a recovery. We apply this holding in the instant appeal and to cases pending on appeal as of the date of this opinion. As a result, we reverse the order dismissing Appellant's complaint and remand the matter to the circuit court for further proceedings consistent with this opinion.

There are concurring and concurring/dissenting opinions. (Mike Frisch)

October 29, 2014 in Clients | Permalink | Comments (0) | TrackBack (0)

Friday, October 24, 2014

Amount Due

A law firm was entitled to its legal fees, notwithstanding errors made by its original counsel, according to a decision of the New York Appellate Division for the First Judicial Department:

The motion court properly concluded that the varying figures given by R & M during this litigation, as to the total outstanding fees due, did not undermine R & M's prima facie case for an account stated, inasmuch as the discrepancies were plainly attributable to the incompetence of its original attorney in drafting the motion papers on its previous motions for summary judgment, which, inter alia, did not include R & M's complete billing invoices from the past, and records of off-sets that the parties had agreed to. The monthly invoices and records - the timely receipt of which Sakow never disputed - were never challenged by Sakow as to accuracy or reasonableness until the instant litigation was commenced years later. Such circumstances, including that Sakow continued to make payments towards the total fees accrued and billed, without reservation, belie the belated challenges to the reasonableness of the invoiced fees...

The record reflects that R & M represented Sakow on many legal matters since 1989, and that R & M would send regular, detailed monthly invoices to account for the fees claimed. The record also demonstrates that Sakow never denied receipt of invoices supporting the "balance forward" figure referenced in the March 7, 2002 invoice, that no objection was raised as to such invoices, and that Sakow continued to make regular payments towards the invoices.

(Mike Frisch)

October 24, 2014 in Billable Hours, Clients | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 21, 2014

Legal Malpractice And Intervening Cause

The New Mexico Court of Appeals has reversed a favorable ruling to the defendant in a legal malpractice case

Roland Lucero and his company, R & L Straightline Tile, (collectively, Plaintiff) appeal from a judgment entered in favor of Defendant Richard Sutten following a bench trial on the issue of legal malpractice. The district court found that Defendant negligently failed to apprise Plaintiff of the dangers of providing an unsecured $300,000 loan to a Las Vegas development company. However, the district court applied the doctrine of independent intervening cause, a defense that had not been previously raised in Defendant’s proposed findings prior to trial, and concluded that the real estate market collapse of the mid-to-late 2000s severed the connection between Defendant’s professional negligence and Plaintiff’s damages claimed therefrom. On appeal, Plaintiff argues that the district court erred in applying the doctrine of independent intervening cause to these facts. We agree. We reverse and remand for consideration of damages in light of this Opinion.

The court

The district court should not have dismissed this case but, instead, it should have determined whether Defendant’s negligence was the proximate cause of Plaintiff’s loss and, if applicable, employed a standard comparative fault analysis.

(Mike Frisch)

October 21, 2014 in Clients | Permalink | Comments (0) | TrackBack (0)

Monday, October 13, 2014

Local Standard Of Care Must Be Established In Legal Malpractice Case

The Delaware Supreme Court affirmed the grant of summary judgment to the defendants in a legal malpractice case.

As often occurs, the malpractice was alleged in response to a claim of unpaid legal fees.

Notably, the court dealt with the problem of the out-of-state expert witness.

The plaintiff had used a New Jersey attorney as its expert.

The court held that use of such an expert is not a deal breaker. However, it must be established that the proferred expert is "well acquainted and conversant" in the local standard of care for attorneys.

A "bridging expert" (not an expert on bridges) can provide the necessary link, but was not provided by the plaintiffs here. (Mike Frisch)

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

Thursday, October 9, 2014

Collectibility An Affirmative Defense In Legal Malpractice Claim

The Washington State Supreme Court has addressed two questions of first impression in the jurisdiction in legal malpractice cases.

First, the court held that the uncollectibility of the judgment in the underlying action is an affirmative defense that the defendant attorney must plead and prove. The court rejected the view that collectibility was an element of the tort for which the former client has the burden of proof.

Second, the court found that emotional distress damages were not available under the facts of the case.

The underlyng case was a slip-and-fall. The attorney had filed suit shortly before the statute of limitations ran but named the wrong defendant.

Subsequent efforts to revive the case failed. (Mke Frisch)

October 9, 2014 in Clients | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 1, 2014

Buck Rogers In The 21st Century

When lawyers sue their former clients for unpaid fees,  the result often is a return volley alleging legal malpractice.

The New York Appellate Division for the First Judicial Department dealt with such a situation in a decision issued yesterday.

The former client

The Dille Family Trust (the Trust), of which defendant is trustee, owned trademarks and copyrights for "Buck Rogers." Two of the Dille family members are beneficiaries of the trust; their grandfather's syndicate had obtained the Buck Rogers trademark and copyrights. The syndicate had hired Philip Nowlan to create comic strips based on the character, and his heirs started cancellation proceedings to terminate the syndicate's trademark rights and obtain the rights for themselves. The beneficiaries of the Trust retained plaintiff law firm to handle intellectual property matters, including the cancellation action.

The trial court erred in part

Contrary to the motion court's conclusion, there was a valid fee agreement between plaintiff and the Trust. The better practice would have been to send the engagement letter to the trustee, rather than only to the beneficiaries. However, the record, including email exchanges between the trustee and plaintiff, shows that the trustee was well aware of and approved of the beneficiaries' authority to act on the Trust's behalf with regard to plaintiff's retainer and representation (see Granato v Granato, 75 AD3d 434 [1st Dept 2010]). It is irrelevant that the original engagement letter was not signed by the client (see 22 NYCRR 1215.1[a]).

While the court found a triable dispute over the bill, the legal malpractice counterclaim failed

Regarding the legal malpractice counterclaim, assuming that plaintiff's conduct, in failing to complete a chain-of-title report or failing to resolve the underlying intellectual property disputes before withdrawing, amounts to negligence, the Trust failed to demonstrate causation. The Trust failed to show how it would have successfully opposed the underlying trademark cancellation proceeding, or would otherwise have protected its intellectual property rights, but for plaintiff's omissions.

In addition, the resulting inability to efficiently market the trademarks is too speculative to constitute the "actual ascertainable damages" required to support the malpractice counterclaim.

Beneficiary Flint Dille's bare allegation that he and plaintiff had agreed to a $25,000 fee cap is unsupported in the engagement letter sent to Dille listing an hourly rate or by anything else in the record, and therefore cannot establish a legal malpractice counterclaim. (citations omitted)

(Mike Frisch)

October 1, 2014 in Billable Hours, Clients | Permalink | Comments (0) | TrackBack (0)

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.

Reasoning

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,

...it 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

...in 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)