Wednesday, January 8, 2014
An order dismissing a legal malpractice claim based on allegedly erroneous tax advice was reversed by the New York Appellate Division for the Second Judicial Department.
The facts of the alleged malpractice
The plaintiff commenced this action to recover damages allegedly sustained as a result of the defendants' legal malpractice. As alleged in the complaint, the plaintiff retained the defendants to represent it in connection with the sale of certain real property and a related exchange of "like-kind property" pursuant to the Internal Revenue Code (see 26 USC § 1031). According to the allegations in the complaint, the plaintiff, based upon the defendants' advice, selected LandAmerica 1031 Exchange Services, Inc. (hereinafter LandAmerica), as the qualified intermediary to hold a portion of the sale proceeds, totaling $5.5 million, for the exchange of like-kind property pursuant to 26 USC § 1031. The complaint alleged, inter alia, that the defendants negligently represented the plaintiff inasmuch as they reviewed, and advised the plaintiff to execute, an agreement with LandAmerica, under which the exchange funds were to be held in a commingled account and not a qualified escrow account or trust. Soon after the sale proceeds were transferred to LandAmerica, its parent corporation, LandAmerica Financial Group, Inc., declared bankruptcy. According to the complaint, the plaintiff's funds were frozen for several years during the bankruptcy proceedings, and the plaintiff lost a portion of the funds because they were not held in a qualified escrow account or trust. The complaint further alleged that the plaintiff could not defer the taxes on the capital gains from the initial sale, as it did not have access to its funds to purchase a replacement property within the required 180-day period.
The defendant law firm failed to demonstrate that dismissal was appropriate
Here, construing the complaint liberally, accepting the facts alleged in the complaint as true, and according the plaintiff the benefit of every possible inference, as we are required to do, the plaintiff stated a cause of action to recover damages for legal malpractice (citations omitted) The plaintiff alleged in the complaint that the defendants were negligent in failing, inter alia, to advise it to keep its exchange funds in a qualified escrow account or trust, and that this negligence was a proximate cause of its damages. The defendants' contentions that it was the conduct of the plaintiff's manager and unforeseeable events that were the proximate causes of the plaintiff's damages, and that the defendants did not depart from the standard of care, concern disputed factual issues that are not properly raised and resolved on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7).
Tuesday, November 5, 2013
Tuesday, October 15, 2013
The Tennessee Court of Appeals has reversed and remanded an order dismissing claims brought against a Washington, D.C. attorney by a Memphis law firm.
The D.C. attorney sought the assistance of the Memphis firm in connection with a lawsuit filed in Maryland. A contract was entered into for the attorney and the firm to serve as co-counsel.
The Memphis firm sued the attorney for not paying one-half of the expenses, as provided for in the contract.
The trial court dismissed for lack of personal jurisdiction. The court here disagreed and reinstated the suit. (Mike Frisch)
Thursday, September 19, 2013
The District of Columbia Court of Appeals has affirmed an order to arbitrate a dispute between a former partner of K &L Gates and the firm.
The attorney had filed suit against the firm in California. The firm invoked arbitration and forum selection clauses in the firm partnership agreement, and moved in the D.C. Superior Court to compel arbitration.
The Superior Court ordered the parties to arbitrate the dispute. The attorney appealed the order.
The court here entertained the appeal and concluded that the dispute must be arbitrated.
The attorney had signed a supplement to the firm's partnership agreement when Kilpatrick & Lockhart merged with Preston, Gates & Ellis that bound him to the agreement "as amended."
The attorney (who was a partner at the Preston firm) agreed to the supplement when he chose to become a K &L Gates partner. The agreement provided for arbitration of disputes that arose between him and the firm and chose the District of Columbia as the forum.
The court rejected a host of contentions, including the suggestion that the firm engaged in fraud in having the agreement signed. The court held that the arbitration agreement broadly covered all issues in dispute between the attorney and the firm.
Associate Judge McLeese wrote the opinion. There are concurring opinion from Senior Judge Ferren, joined by Associate Judge Easterly.
The issue of the concurrences involved footnote four of the opinion. The concurring opinion proposes an alternate version.
Judge McLeese defended the footnote in a concurring opinion. (Mike Frisch)
Tuesday, July 2, 2013
The Rhode Island Supreme Court has affirmed the dismissal of a civil action brought by an attorney against his former law partners.
The firm breakup took place in 1999. The suit alleged intentional interference with prospective contractual relations, defamation, breach of fiduciary duty and corporate opportunity doctrine.
Judgment for the defendants as a matter of law was entered after a seven day trial.
The court noted earlier related litigation and concluded:
In 2003 - ten years ago - the trial justice cautioned that "[i]t is now time for each of the unhappy former partners to put this matter aside * * * rather than participating in an endless maze of pro se litigation." (citation omitted) In 2010, this Court observed that it was "especially unfortunate that, despite the trial justice's admonition at an early stage, the instant litigation has been prolonged for an additional seven years." Now, fourteen years after the dissolution of the law firm and the filing of this complaint, we lay this case to rest.
Tuesday, May 28, 2013
The Connecticut Supreme Court affirmed the grant of summary judgment to two attorneys sued under a variety of theories including violation of the state's unfair trade practices law.
The basis was the failure of the plaintiff to "identify any evidence of ascertainable loss."
One of the defendants had been employed by attorney Meo as an associate. Meo was the sole proprietor of the law firm.
Meo was hospitalized in October 2005 and remained so until his death in April of the following year. The clients were managed by the asociate during his illness. Eventually, the attorney left the Meo firm and 51 of 53 clients retained him to complete their cases.
The suit here was filed by the widow Meo individually and as administrix of the estate. (Mike Frisch)
Friday, May 24, 2013
The New York Appellate Division for the First Judicial Department has remanded a matter involving legal fees charged to and gifts received from a wealthy widow in an estate matter:
Beginning in 1983, defendant law firm represented the family of Sylvan Lawrence in litigation concerning the administration of his estate. In 1998, Alice Lawrence, Sylvan's widow, paid three of the firm's partners, the individual defendants, a bonus or gift totaling $5.05 million and also paid the firm $400,000 as a bonus or gift. By the end of 2004, the widow had paid, approximately $22 million in legal fees on an hourly fee basis.
In the hope of reducing her anticipated legal fees in the ongoing litigation, the widow entered into a revised retainer agreement with the law firm in January 2005. The revised retainer agreement provided, inter alia, for a 40% contingency fee. In May 2005, the estate litigation settled with a payment to the estate of more than $111 million and, in accordance with the revised retainer agreement, the firm sought a fee of 40% of that amount. When the widow refused to pay the 40% contingency fee, this litigation resulted, in which, among other relief, the return of the gifts the widow made in 1998 is sought.
The court held
The revised retainer agreement is both procedurally and substantively unconscionable (Lawrence v Graubard Miller, 48 AD3d 1, 6 [1st Dept 2007], affd 11 NY3d 558 ). The evidence shows that the widow believed that under the contingency arrangement, she would receive the "lion's share" of any recovery. In fact, as it operated, the law firm obtained over 50% of the widow's share of proceeds. Thus, the law firm failed to show that the widow fully knew and understood the terms of the retainer agreement — an agreement she entered into in an effort to reduce her legal fees...
In considering the substantive unconscionability of the revised retainer agreement, the Referee correctly considered such factors as the proportionality of the fee to the value of the professional services rendered, the sheer amount of the fee, and the risks and rewards to the attorney upon entering into the contingency agreement. With regard to the last factor, the law firm had internally assessed the estate's claims to be worth approximately $47 million so that the contingency fee provision in the revised retainer would have meant a fee of about $19 million. Contrary to the law firm's assertion, on this record it seems highly unlikely that the firm undertook a significant risk of losing a substantial amount of fees as a result of the revised retainer agreement's contingency provision. Rather, the Referee accurately characterized this attempt by the law firm to justify its action as "nothing but a self-serving afterthought."(citations omitted)
The amount the law firm seeks ($44 million) is also disproportionate to the value of the services rendered (approximately $1.7 million) (see Lawrence v Graubard Miller, 11 NY3d at 596). The record shows that the law firm spent a total of 3,795 hours on the litigation after the revised retainer agreement became effective, resulting in an hourly rate of $11,000, which, as the Referee stated, is "an astounding rate of return for legal services."
However, the remedy recommended by the Referee and adopted by the Surrogate — namely, a new "reasonable" fee arrangement for the parties — was improper. Where, as here, there is a preexisting, valid retainer agreement, the proper remedy is to revert to the original agreement. For the reasons found by the Referee, we reject the firm's suggestion that it receive a reduced contingency fee. Accordingly, the matter is remanded for the determination of the fees due the law firm under the original retainer agreement. Given that the firm is entitled to fees under the original retainer agreement, it is also entitled to prejudgment interest from the date of the breach. (citations omitted)
Because the individual defendants acted alone, and in secret from the rest of the law firm, with respect to the gifts, we decline to rule that such conduct by the individual defendants results in the firm's forfeiture of its lawful fees from the date the individual defendants received the gifts.
The Surrogate's Court (opinion linked here) had awarded the law firm fees in the amount of $15,837,374.02 but found that the gifts solicted by the attorneys (concealed from their law firm and the widow's children) emanated an "odor of overreaching too potent to be ignored." (Mike Frisch)
Monday, May 6, 2013
In a lawsuit involving a dispute between lawyers over the legal fees in a complex medical malpractice case, the Maryland Court of Special Appeals has held that
...we will apply the general rule that the termination of a contingency fee agreement terminates the fee-sharing agreement predicated on it. Because PGA [the law firm of Orioles owner Peter Angelos] is not entitled to a contingency fee, there is no contingency fee for Mr. Brault to share. Accordingly, to the extent the circuit court factored in the fee-sharing agreement, the circuit court's ruling must be vacated and remanded for further proceedings.
We stress that our decision in this case does not mean that Mr. Brault is not entitled to compensation for his work while the contingency arrangement was in effect. Like PGA, howver, his claim would be for the reasonable value of his services.
The case involved an attorney (Mr. Gately) who while with PGA undertook the representation of the client with assistance from other firm attorneys. Mr. Brault was brought in as co-counsel and a favorable verdict was obtained. The verdict was overturned on appeal.
Mr. Gately was then discharged from PGA. The client followed him and Mr. Brault. The case later settled for an undisclosed amount. PGA sued to enforce its lien. The disputed funds remained in escrow.
Mr. Gately acknowledged that no post-verdict effort had contributed to the settlement, which he attributed to an act of God.
The court here held that PGA had behaved ethically and was not deprived of it entitlement to fees.
The court also held that the discharged attorneys may properly sue successor counsel. (Mike Frisch)
Wednesday, May 1, 2013
From the web page of the Tennessee Supreme Court:
The Tennessee Supreme Court has sent a dispute between a Memphis law firm and a former partner and paralegal back to the trial court to determine whether arbitration is appropriate.
The law firm of Glassman, Edwards, Wyatt, Tuttle & Cox, P.C. filed a lawsuit against B.J. Wade, a former partner, and Shannon Crowe, a former paralegal, alleging fraud and breach of their duties to the firm. Mr. Wade and Ms. Crowe both asked the trial court to send their cases to arbitration, as required by agreements they maintain govern resolution of each case. The firm, however, asserts that none of the agreements require arbitration.
The trial court consolidated the cases and initially ordered the parties to proceed with limited discovery to determine whether the cases were subject to arbitration. When disagreement arose, however, the trial court expanded the scope of discovery to include “all necessary documents to conduct a meaningful attempt at resolution of this matter.” The trial court also ordered the parties to mediation in an attempt to resolve all of their disputes. The Tennessee Supreme Court granted the request of Mr. Wade and Ms. Crowe for an immediate appeal.
In a unanimous opinion issued today, the Supreme Court concluded that the trial court erred in ordering discovery without limiting the scope of discovery to the issue of the enforceability of the arbitration provisions and erred in ordering the parties to mediation in an effort to resolve all aspects of their disputes.
The Supreme Court ordered that the case be returned to the trial court to determine whether arbitration was required of any dispute between the parties under any of the agreements at issue. The Court also held that discovery must be limited to the issue of whether the arbitration clauses contained in the agreements are enforceable.
The court's opinion is linked here.
Wednesday, April 24, 2013
From the web page of the Ohio Supreme Court:
The Ohio Supreme Court Board of Commissioners on Grievances & Discipline no longer advises that a lawyer may not practice with more than one firm in Ohio at the same time, according to an advisory opinion.
Finding “substantial justification for a new perspective on practice in multiple firms” and considering “the context of current rules and modern practice,” the board concluded in Opinion 2013-1 that practice in multiple firms can occur in compliance with the Rules of Professional Conduct.
The board withdrew three previous advisory opinions on the issue. The reasoning behind the update includes, among other things, the fact that other jurisdictions have ruled that the practice is permissible, an expanded definition of “firm,” and financial considerations for lawyers in smaller communities who work more than one part-time job.
The opinion’s syllabus gives the following guidance.
“A lawyer who engages in simultaneous practice in multiple firms must recognize the potential ethical issues connected with such practice. The lawyer has to be diligent in avoiding conflicts of interest, and the imputation of conflicts will apply across all associated ‘firms.’ The lawyer is also required to scrupulously maintain client confidentiality and professional independence. As part of the lawyer’s duty to refrain from false, misleading, or nonverifiable communications about the lawyer or the lawyer’s services, the lawyer must inform his or her clients of all multiple firm associations."
Wednesday, February 27, 2013
An attorney represented an organization in defense of several employment matters from 2002-2004. The relationship ended when the client sued the attorney for malpractice.
The organization moved for disqualification in a pending case in which the attorney represented a plaintiff suing it in an employment matter. The trial court denied a motion to disqualify.
The South Carolina Supreme Court held that interlocutory appeal of the denial is not an available remedy. The issue can be addressed on appeal of the judgment. (Mike Frisch)
Thursday, February 21, 2013
The Rhode Island Supreme Court affirmed the grant of summary judgment to an attorney in a suit for fees against a former client.
The attorney had represented the client in actions against her late father's estate for a 15% contingency fee.
After the claim was reduced to settlement, the attorney collected his fees as payments were recovered. The client later discharged the attorney and claimed no obligation to continue to pay.
The court found that the attorney's rights under the contingent fee agreement had fully vested when the underlying claim was settled. Although the client was free to discharge the attorney, such action "does not alter his entitlement to fees already earned." (Mike Frisch)
Saturday, February 2, 2013
An Alaskan Native corporation entered into a fee agreement with a law firm in connection with litigation over "its certification of and title to certain lands" under the Native Claims Settlement Act.
The contingent fee agreement gave the law firm an interest in the lands at issue.
After the client had prevailed, a bar arbitration panel found that the firm could not take the land, but was entitled to a fee payment equal to the land's value. A 1995 court judgment enforced the arbitration award. The client paid the law firm for several years.
The client eventually was unable to continue the payments and litigation ensued.
The Alaska Supreme Court held that the contingency agreement violated provisions of the Act and that the arbitration award was improper. The court noted tht the case presented "complex" issues as to whether the 1995 judgment was void or voidable.
The court ordered the law firm to return $643,760 in paid fees.
The firm may now establish its entitlement for fees under quantum meruit. (Mike Frisch)
Tuesday, December 11, 2012
In a case of first impression, the New Mexico Supreme Court has held that disqualification is mandatory when an associate who played a 'substantial role" in litigation and possesses confidential information moves to a firm involved in the litigation against her former client.
Both the moving associate and her new firm are barred from further representation.
The court noted that it had adopted a more restricted version of Rule 1.11than the ABA Model Rule, and that its rule does not permit screening to prevent imputed disqualification.
While the rule may have a chilling consequence for lawyer mobility, the court emphasized that the public policy considerations that underpin the loyalty to clients justifies the result:
In the practice of law, there is no higher duty than one's loyalty to a client.
Friday, September 28, 2012
The New Hampshire Supreme Court has reversed and remanded a decision to rescind a law firm's professional liability insurance for an allegedly false statement on the policy application.
The matter involved the misappropriation of estate funds by a law firm partner.The other partner was not aware of the thefts, although his conduct facilitated the theiving partner's access to the entrusted funds. The two lawyers had been partners for over 45 years.
The court held that the knowledge of the bad partner could not be imputed to the innocent one under its interpretation of the "innocent insured" provision of the policy.
Our earlier coverage of a suit by the disbarred attorney's spouse against a Nixon Peabody attorney is linked here. (Mike Frisch)
Tuesday, September 25, 2012
In a matter involving a law firm's efforts as a third party to secure payment of fees, the New York Appellate Division for the First Judicial Department held that the firm had not established a basis to award a money judgment:
The law firm was not entitled to entry of a money judgment. Although the amount of a charging lien may be determined and fixed before the outcome of the case, the charging lien does not provide for an immediately enforceable judgment against all assets of the former clients. Rather, the lien is security against a single asset of the client - a judgment or settlement reached in favor of the former client in the underlying matter. Since the record here does not show that there has been a final judgment in this action, the law firm's request for a money judgment was properly denied. Should the law firm wish to obtain a judgment enforceable against plaintiff's other assets, it can bring a separate plenary action. (citations omitted)
Tuesday, August 7, 2012
The New York Appellate Division for the First Judicial Department affirmed the dismissal of a suit for legal fees:
This is a dispute over whether plaintiff Kasowitz law firm is entitled to a success fee in addition to the flat $1 million fee it has already received in connection with its representation of defendant Duane Reade. The issues are whether the parties' e-mails established a binding fee agreement, and whether the fee was to be limited to the moneys Duane Reade received in settlement of the underlying Cardtronics litigation, or was to encompass all of the benefits Duane Reade received from the termination of its ATM placement contract with Cardtronics, including increased revenues from Duane Reade's new ATM contract with JP Morgan Chase (Chase)...
...three e-mails constitute an integrated fee agreement (see Nolfi Masonry Corp. v Lasker-Goldman Corp., 160 AD2d 186, 187  ["a binding agreement may be assembled from more than one writing"]). By the plain language employed, they demonstrate that Kasowitz made an offer to represent Duane Reade in the Cardtronics case for a flat $1 million, plus a success fee equal to 20% of the amounts recovered above $4 million in that litigation, and that Duane Reade accepted that offer. Kasowitz is not entitled to a success fee under the terms of the fee agreement, since Duane Reade received total compensation of approximately $1.75 million — well below the $4 million threshold — as a result of the settlement of the Cardtronics action.
The dissent believes that the fee agreement is ambiguous as to the scope of the fee. The dissent reasons that the term "recover," as used in the September 8, 2006 e-mail, may reasonably be interpreted to encompass noncash resolutions, i.e. any value received as a result of the settlement of the Cardtronics action. However, in adopting this position, the dissent fails to consider the term "recovered" or "recovery" in the context of the e-mail as a whole, and improperly relies on extrinsic evidence, including Bergman's affidavits, in order to find ambiguity where none exists.
Saturday, July 7, 2012
The Utah Supreme Court has held that the judicial proceedings privilege applies to an attorney's course of conduct as well as to statements made in the course of litgation.
The law firm represented an employer who had sued a former employee for misappropriation of trade secrets and violation of a non-compete agreement. The firm sought and was granted a civil discovery court order authorizing its entry into the employee's home to seize electronic files from his computer and other electronic devices.
A firm attorney attended the execution of the order. The employee's fiancee (the employee was not there) objected. A second, ex parte order was obtained and she relented.
The employer-employee litigation settled. The employee did not raise the issue of the seizures in the litigation.
The employee then sued the law firm for on a variety of theories for the violation of his Fourth Amendment rights.
A lower court had applied res judicata principles based on the settled case and found the claims were barred.
Here, the court found res judicata inapplicable but nonetheless affirmed on the judicial proceedings privilege. The law firm had acted pursuant to a court order that had not been obtained by fraud or other improper means. (Mike Frisch)
Monday, June 25, 2012
The New Jersey Appellate Division has held that, under the "most significant relationship" test, the New York statute of limitations applies to a tort action brought by an attorney against his former firm. Accordingly, the litigation was dismissed.
Plaintiff was a partner in a New York firm with a Newark satellite office. He was terminated as a result of charges that he had sexually harassed female employees. He sued the firm in New York for defamation. The firm sued him, also in New York, based on allegations of improper conduct as a firm partner. The New York Supreme Court dismissed both actions. The Appellate Division affirmed the dismissals.
After a second action filed by the plaintiff in New York was dismissed, he sued the firm in New Jersey for malicious prosecution. The action was time barred in New York but not in New Jersey.
Here, the court applied the New York limitations rule, concluding that the Empire State was "the locus of all the claims and counterclaims between the parties." (Mike Frisch)
Thursday, June 14, 2012
The Nevada Supreme Court has remanded a matter for an evidentiary hearing on the sufficiency of screening measures. The disqualified attorney served as a settlement judge in an appeal. A partner of the settlement judge entered an appearance for one of the parties after settlement talks failed. The other party objected.
The court sets forth the facts:
Although the Nevada Rules of Professional Conduct (RPC) permit the screening of disqualified attorneys to prevent an associated law firm’s imputed disqualification in some cases, RPC 1.10(e); 1.11(b); 1.12(c), we have never considered whether screening is appropriate with regard to a settlement judge acting under this court’s settlement conference program or how to determine the sufficiency of any screening measures utilized. We take this opportunity to consider the practice of attorney screening to cure imputed disqualification.
The parties agree that supreme court settlement judge Nicholas Frey is disqualified from representing respondent Amador Stage Lines, Inc., in the present matter. Pursuant to RPC 1.12(c), Frey’s disqualification is imputed to the remaining members of his law firm, Woodburn and Wedge, but the parties disagree on whether screening may be utilized to cure the imputed disqualification. In order to resolve appellant Ryan’s Express Transportation Services, Inc.’s pending motion to disqualify Woodburn and Wedge from representing Amador in this appeal, we must consider whether screening may be used to cure imputed disqualification in this situation and whether the screening measures taken by Woodburn and Wedge are sufficient.
However, because we conclude that more facts are necessary for us to consider the sufficiency of Woodburn and Wedge’s screening measures, we defer ruling on the motion to disqualify and remand this matter to the district court for the limited purpose of conducting an evidentiary hearing and entering written findings of fact and conclusions of law regarding the adequacy of the screening.
When presented with a dispute over whether a lawyer has been properly screened, Nevada courts should conduct an evidentiary hearing to determine the adequacy and timeliness of the screening measures on a case-by-case basis. The burden of proof is upon the party seeking to cure an imputed disqualification with screening to demonstrate that the use of screening is appropriate for the situation and that the disqualified attorney is timely and properly screened.
When considering whether the screening measures implemented are adequate, courts are to be guided by the following nonexhaustive list of factors:
(1) instructions given to ban the exchange of information between the disqualified attorney and other members of the firm;
(2) restricted access to files and other information about the case;
(3) the size of the law firm and its structural divisions;
(4) the likelihood of contact between the quarantined lawyer and other members of the firm; and
(5) the timing of the screening.
As with motions to disqualify, the consideration of the adequacy of screening is within the sound discretion of the district court, LaSalle, 703 F.2d at 256; however, the district court must justify its determination as to the adequacy of the screening in a written order with specific findings of fact and conclusions of law.
The hearing on remand will address the adequacy of the screening measures. (Mike Frisch)