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Legal Malpractice

New York Attorney Malpractice Blog

Legal Malpractice Attorney & Lawyer
By Andrew Bluestone

Post Frequency: 9.8/day

Last Entry: April 01, 2011 at 06:03:18

The Increasing Importance of Breach of Fiduciary Duty in Legal Malpractice

Posted on September 15, 2009
In law, sometimes a single case decision opens the flood gates. This is an oft-heard argument, with a rarely seen result, yet in legal malpractice the Ulico v. Wilson Elser, 56 AD3d 1 (1st Dept, 2008) case seems to have accomplished the re-awakening of "breach of fiduciary duty...

Irony In Legal Malpractice

Posted on September 14, 2009
When practitioners in Legal Malpractice stay in the area long enough, older cases they handled come back to save or haunt them. A prime example is DeNatale v Santangelo ; 2009 NY Slip Op 06398 ; Decided on September 8, 2009 ; Appellate Division, Second Department ...

Further Lessons in Legal Malpractice from Kirk

Posted on September 11, 2009
Continuing from yesterday, what is the relationship between legal malpractice litigation and breach of fiduciary duty? One reflexive answer is that the broad category of legal malpractice litigation, which requires a demonstration of deviation, proximate cause, "but for" causation and damages contains breach of fiduciary duty as a subset...

One Case With Several Lessons in Legal Malpractice

Posted on September 10, 2009
Sometimes a court's decision will simply tell how the case came out. Sometimes a decision can teach a lesson; in this case one decision teaches several lessons in Legal Malpractice. KIRK , -against- HEPPT, 05 Civ. 9977;UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK;2009 U...

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How Close is Privity in Legal Malpractice and Elsewhere?

Posted on September 09, 2009
Sometimes we find a stimulating discussion of a principal of legal malpractice in decisions concerning other professions. In this case Sykes v RFD Third Ave. 1 Assoc., LLC ;2009 NY Slip Op 06387 ;Decided on September 8, 2009 ;Appellate Division, First Department ;Moskowitz, J...

Failure to Communicate a Settlement Offer and Legal Malpractice

Posted on September 08, 2009
In "Boglia, v Greenberg, et al., ; SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT;2009 NY Slip Op 5278; 63 A.D.3d 973; 882 N.Y.S.2d 215; 2009 N.Y. App. Div. LEXIS 5183 the court writes: "The client retained the attorneys to represent her in a matrimonial action...

Charging Liens, How they are Calculated and How to Avoid Legal Malpractice

Posted on September 04, 2009
In MELNICK v. CARY PRESS,;No 06-CV-6686 (JFB) (ARL);UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK;2009 U.S. Dist. LEXIS 77609; August 28, 2009, Decided we find an excellent discussion of the rules of attorney fee liens under the Judiciary Law...

Legal Malpractice Litigation over Scope of Work

Posted on September 03, 2009
How much does one take on as attorney, and how does that scope of work affect legal malpractice litigation? In Douglas v. Dashevsky, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT; 2009 NY Slip Op 4187; 62 A.D.3d 937, ; 880 N...

Choice of Map is Judgment Call in Legal Malpractice

Posted on September 02, 2009
What is obvious to one is a judgment call to another. in Noone v Stieglitz ;2009 NY Slip Op 01093 ; 59 AD3d 505] February 10, 2009 ;Appellate Division, Second Department we see a plaintiff involved in a motor vehicle accident. Defendant in that MV case claimed that it was forced out of its lane into plaintiff's lane by an errent cab...

Legal Malpractice Action Dismissed on Impossibility Grounds

Posted on September 01, 2009
in Williams v Omrani & Taub, P.C. ;2009 NY Slip Op 51832(U) ;Decided on August 25, 2009 ;Supreme Court, Kings County ;Rivera, J. rendered a tri-partate decision, reviewing a dismissal motion pursuant to CPLR 3211(a)(1) (a)(5) and (a)(7)...

Bankruptcy and Legal Malpractice - III

Posted on September 01, 2009
This is part 3 of a series based on the case of ASTON BAKER, -against- CHARLES SIMPSON, ESQ., WINDELS MARX LANE & MITTENDORF, LLP, STANLEY GALLANT, GALSTER CAPITAL LLC, GARLSTER MANAGEMENT CORP., ALLSTATE INSURANCE COMPANY, AND JP MORGAN CHASE BANK, N...

Bankruptcy and Legal Malpractice - II

Posted on August 31, 2009
We reviewed this case in part yesterday. Here is the balance of the case, ASTON BAKER, , -against- CHARLES SIMPSON, ESQ., WINDELS MARX LANE & MITTENDORF, LLP, STANLEY GALLANT, GALSTER CAPITAL LLC, GARLSTER MANAGEMENT CORP., ALLSTATE INSURANCE COMPANY, AND JP MORGAN CHASE BANK, N...

Fees, Escrows and Legal Malpractice

Posted on August 27, 2009
As we have reported before, sometimes legal malpractice cases arise by action of the plaintiff, and sometimes they arise after the attorney sues for legal fees. Courts often take the later situation as a "reflexive" or "defensive" maneuver, and may not always believe that the client is genuinely prosecuting a legal malpractice case so much as avoiding paying a fee...

Subrogation and Legal Malpractice - Part 1

Posted on August 26, 2009
The New York Court of Appeals determined that a medical insurance provider has the right to intervene in a personal injury case to protect its right to subrogation and to assert "lien" on the proceeds of the case. In a well researched article, J...

Legal Fees, Malpractice Counterclaims and Jury Trials

Posted on August 25, 2009
For as long as there have been attorneys, it seems that there have been fee disputes. Fee disputes and legal malpractice counterclaims go together like, well you fill in the simile...love and marriage, horse and carriage... Here is a case from Nassau which illustrates that question of whether defendant counterclaminant has the right to a jury trial, when plaintiff elects to have a bench trial...

Notifying the Target Attorneys's Carrier in Legal Malpractice

Posted on August 24, 2009
Often, the only way plaintiff knows whether target attorney defendant has legal malpractice insurance is by the name of the attorneys who answer the complaint. If they are attorneys who normally are retaied by legal malpractice insurance carriers, then plaintiff knows there is insurance...

Can One Commit Legal Malpractice by Defining Perjury ?

Posted on August 21, 2009
This is a sordid story of a professor who was barred from teaching at a university. He was accused of making rather coarse sexual comments to students, many of them. While litigating over his potential dismissal, a letter was sent to one witness with a photocopy of the definition of perjury and a suggestion of how she could purge herself of that problem...

What Are the Most Common Mistakes in Legal Malpractice ?

Posted on August 20, 2009
Wisconsin legal malpractice insurers have published a breakdown of legal malpractice claims. Here, reported by Bonnie Shucha in the University of Wisconsin blog, are the most commonly sued for mistakes: Calendaring - 23% Failure to know or properly apply law - 14% Planning error in choice of procedures - 13% Inadequate discovery & investigation - 12% Failure to obtain consent/inform client - 6% Why calendaring? It is the easiest to see...

Collectibility in Legal Malpractice In New York

Posted on August 19, 2009
There are conflicting rules in the 4 departments of New York. In legal malpractice, it is plaintiff's obligation to demonstrate that a hypothetical judgment could be collected in a legal malpractice case in the 2d, 3d and 4th departments. In the First Department, it is an affirmitive defense for defendant to prove...

A Frivolous Legal Malpractice Case

Posted on August 18, 2009
Legal Malpractice cases are dismissed upon a motions on the pleadings. It happens not infrequently. It seems that legal malpractice actions are more scrupulously examined for the "but for" portion of the matter than might occur in other aras of the law...

Termination For Cause and Fees in Legal Malpractice

Posted on August 17, 2009
GABRIEL D'JAMOOS, , v. MICHAEL GRIFFITH, No. 08-3668-cvUNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT;2009 U.S. App. LEXIS 17868;August 12, 2009, discusses termination for cause and the proofs needed: "Under New York law, an attorney may be dismissed by a client at any time with or without cause...

Liens in Legal Malpractice

Posted on August 14, 2009
A common law retaining lien entitles the outgoing attorney to retain all papers, securities, or money belonging to the client that came into the attorney's possession in the course of representation, as security for payment of attorney's fees. Arising from Judiciary Law 475, it is enforceable only by retention of the items themselves and is lost if the file or documents are no longer in the attorney's possession...

How Much Discovery Can You Get in Legal Malpractice

Posted on August 13, 2009
One answer to this question is found in Carl v, Cohen, NY Slip Op 31747(u), a decision by Justice Edmead. Here defendants Joel Cohen and Greenberg Traurig, LLP reached a "so ordered" stipulation concerning depositions of subsequent attorneys, against whom, presumably, defendants would either like to bring a third-party action, or to say that these subsequent attorneys could have saved the day, and who had a "last clear-chance...

Tax Advice and Matrimonial Legal Malpractice

Posted on August 12, 2009
In Fielding v Kupferman ;2009 NY Slip Op 06151 ;Decided on August 11, 2009 ;Appellate Division, First Department we see a reversal of a dismissal in Supreme Court. The facts are uncomplicated. Wife sues for divorce and husband hires target attorney...

Blank Rome Settles $ 20 Million Bankruptcy Legal Malpractice Lawsuit

Posted on August 11, 2009
From Gina Passarella at the Legal Intelligencer today: Blank Rome settles a huge legal malpractice law suit brought by a bankrutpcy trustee. "Blank Rome has entered into a $20 million agreement with the trustee of a former client that is now in bankruptcy to settle a complaint that alleged breach of fiduciary duty, professional malpractice and breach of contract claims against the firm...

The Elements of Legal Malpractice

Posted on August 10, 2009
What are the elements of Professional Malpractice? Malpractice is a professional's failure to use minimally adequate levels of care, skill or diligence in the performance of the professional's duties, causing harm to another. In New York, attorney malpractice is defined as a "deviation from good and accepted legal practice, where the client has been proximately damaged by that deviation, but for which, there would have been a different, better or more positive outcome...

When is a Tort Complete?

Posted on August 07, 2009
This article is about medical malpractice, but it applies to legal malpractice. Examples? When is a tax legal malpratice case complete? is it on the day of the mistake, on the day of the filing, on the last date which a return may be filed, or when the IRS determines there was a mistake? "Duty, breach, causation and injury: These are the traditional elements of a tort claim...

Electronic Discovery and Legal Malpractice

Posted on August 06, 2009
Electronic Discovery is with us, has been regulated, and there are now standards for its use in litigation. Attorneys for clients now have to advise on how to store, produce, resist demands, and comply with the appropriate rules. Whenever there is general agreement upon a standard of practice, the question of deviation from that standard arises...

Tolling or Abatement of Statutes in Legal Malpractice

Posted on August 05, 2009
Plaintiff has a right to sue target attorney, and then, for strategic reasons, agrees to put the case aside for the time being. Plaintiff and target attorney reach a stand-still agreement, but the question of tolling or abatement of the statute of limitations remains...

An Unexpected Recovery and Legal Malpractice

Posted on August 04, 2009
Defendant hired plaintiff to represent him in a Federal Court law suit over NYC placard holders parking on sidewalks and curbs in front of his commercial establishments, depriving defendant of use of his properties. He retained plaintiff who started the Federal law suit, and was attorney until a settlement conference...

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