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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

"Unsettled Law" and Legal Malpractice

Posted on June 19, 2009
Attorneys deal in areas of well settled law and in areas of "unsettled law." Clients have problems or issues which exist, no matter how settled the law is in that area. Attorneys are held to a standard of reasonable care in all aspects of their representation...

Privity and Lack of Proximity in Legal Malpractice

Posted on June 18, 2009
In Weksler v Kane Kessler, P.C. ;2009 NY Slip Op 04957 ;Decided on June 16, 2009 ;Appellate Division, First Department we see the fatal duo of lack of privity and lack of proximity. The short story is that Plaintiff, while married to decedent was promised a life-long annuity of $ 4000 per month, said to come from the adult sons, so long as she remained married until decedent's death...

When is a Helicopter Crash Like Legal Malpractice?

Posted on June 17, 2009
The short answer is when there is spoliation. Spoliation is the intentional or negligent destruction of evidence. It may take place prior to, or during litigation, and it always deprives one side of the use of otherwise admissible evidence...

Res Judicata and Bankruptcy Fee Hearings

Posted on June 16, 2009
We have commented about the Collateral Estoppel trap in legal malpractice with regard to fee arbitrations and hearings. in short, when a court grants an attorney fee application, it implicitly determines that there can have been no malpractice, as the court may not award fees in the face of malpractice...

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Matrimonial Legal Malpractice, Fees and Summary Judgment

Posted on June 15, 2009
Clients often ask whether it matters that their legal malpractice case comes as a defense to an attorney fee case. It should not, but judges are swayed by the procedural setting of cases before them. Does it make a difference whether the legal malpractice case is a main action or a counterclaim? Taking a look at this case gives possible insight...

Documentary Evidence and the Motion to Dismiss in Legal Malpractice

Posted on June 12, 2009
CPLR 3211 (a)(1) is the "documentary evidence" portion of a general pre-answer motion to dismiss. The standard applied to dismissal motions under this particular sub-section is: "On a motion to dismiss based upon documentary evidence, dismissal is only warranted if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law" (Klein v Gutman, 12 AD3d 417, 418; see CPLR 3211[a][1]; Saxony Ice Co...

Attorney & Client, or Not, in Legal Malpractice

Posted on June 11, 2009
A "client's unilateral belief" in the attorney-client relationship is insufficient to prove privity between the attorney and client, sufficient for a legal malpractice lawsuit, but subsequent behavior or acts by the attorneys might provide the necessary proof...

New Life in Judiciary Law 487 and Legal Malpractice

Posted on June 10, 2009
In the past six months, new life has been breathed into Judiciary law 487. It may well be the oldest statute in Anglo-American jurisprudence. Dating from1275 the statute provides that an attorney who is guilty of any deceit or collusion, may be guilty of a misdemeanor and held for treble damages...

Retaining Liens in the Absence of Legal Malpractice

Posted on June 09, 2009
In both Federal District Court and in State Court in New York attorneys have a "retaining lien" under Judiciary Law 475. In Federal District Court the rule is set forth in Katz v. Image Innovations Holdings Inc., 06 Civ. 3707;Decided: May 27, 2009; District Judge John G...

Privity Still Counts, Even in the Big Cases

Posted on June 08, 2009
The collapse of a hedge fund gives rise to a legal malpractice claim by various of the investors. The hedge fund impresario is convicted of securities fraud, and then turns around to help the investors sue the funds' attorney. In Eurycleia Partners, LP v Seward & Kissel, LLP ; 2009 NY Slip Op 04299 ; Decided on June 4, 2009 ; Court of Appeals ; Graffeo, J...

Mental Incompetence and Legal Malpractice

Posted on June 05, 2009
Aside from the precatory "You've got to be crazy...", " on occasion, true mental incompetence does collide with questions of legal malpractice, and in this case, criminal conviction. In ALLEN WOLFSON, -v- AVRAHAM MOSKOWITZ, 08 Civ...

Legal Malpractice and the Right to Documents

Posted on June 04, 2009
This recent Court of Appeals Case, Wyly v Milberg Weiss Bershad & Schulman, LLP 2009 NY Slip Op 03628 ; Decided on May 7, 2009 ; Court of Appeals discusses the rights of a client to "its" case file for use in a later proceeding.....

May You Settle a Case and Then Sue for Legal Malpractice?

Posted on June 03, 2009
In Leone v Silver & Silver, LLP ; 2009 NY Slip Op 04204 ; Decided on May 26, 2009 Appellate Division, Second Department we see that merely settling a case does not deprive plaintiff of the right to sue the attorney, so long as the settlement was effectively compelled by the acts of the target attorney...

Slip & Falls and Legal Malpractice

Posted on June 02, 2009
Slip and fall cases are a major part of the personal injury oeuvre, and personal injury litigation remains a large part of the world of the bar. Accordingly the laws of personal injury, and specifically those relating to trips and falls are widely known and highly important...

It's All Legal Malpractice No Matter What the Name

Posted on June 01, 2009
Some time ago the legislature passed a statute of limitations for legal malpractice, overruling the Court of Appeals which permitted both a 3 year and a 6 year statute. Of course, now there is but a single 3 year statute. At the same time, it was determined that no matter whether one calls the attorney's mistakes fraud, breach of fiduciary duty or something else, there is a single 3 year statute, and it's all called legal malpractice except in certain unusual circumstances...

Retainer Agreements and Legal Malpractice

Posted on May 29, 2009
Retainer agreements or letters of engagement are required in New York, and there is a large body of law concerning attorney fees and the necessity of retainer agreements. On a different dimension, the question of what work an attorney has agreed to perform, and the limits of that attorney's liability may well be determined by the scope of the retainer agreement...

An Unusual Real Estate Legal Malpractice Case

Posted on May 28, 2009
One might not expect a legal malpractice case such as this to take place in Brooklyn. It would be far more plausible in a small upstate hamlet, where everyone knows everyone else, and there are strongly intersecting lines of business and social life...

Privilege, At Issue Communications and Legal Malpractice

Posted on May 27, 2009
Legal Malpractice cases frequently involve a series of attorneys, each of whom comments or gives advice concerning the acts of a predecessor. When will these communications be protected and when will the protection be waived ? A simple answer would be that all communications are protected, forever...

Roadmap to a Legal Malpractice Law Suit, Under Seal

Posted on May 26, 2009
Taken verbatim from the New York Law Journal by Andrew Longstreth "McDermott Will Settles Malpractice Claim McDermott, Will & Emery has settled a malpractice claim brought by the litigation trustee in the bankruptcy of Saint Vincent's Catholic Medical Centers of New York, according to court records...

Losing Custody and Losing a Malpractice Case

Posted on May 22, 2009
In this Albany County case, via the Third Department, Bixby v Somerville ;2009 NY Slip Op 03821 Decided on May 14, 2009 we see the unraveling of a marriage, and the eventual custody dispute, now played out in legal malpractice. Father fights with mother over sole custody, ending in a shared custody decision, later modified by the Appellate Division to joint custody...

Choice of Law in Legal Malpractice Case

Posted on May 21, 2009
Here is a most unusual case. Legal Malpractice case in State Court follows personal injury case in Federal Court and the State Court Judge effectively second guesses the Federal Court judge in whether plaintiff was subject to North Carolina law or that of another state...

Sub-Prime Loans and Legal Malpractice

Posted on May 20, 2009
We have been following this story of the intersection of legal malractice and the sub-prime morrgage crisis. Today, Susan Beck in the New York Law Journal reports that Cadwalader Wickersham & Taft faces a continued legal malpractice case for their work in servicing and securing loans worth $1...

It Takes a Lot for a Judiciary Law 487 Claim in Legal Malpractice

Posted on May 19, 2009
Here is a case in which plaintiff's attorneys sued for $1 Million Dollars [this reminds one of Austin Powers] and eventually won a verdict in excess of $ 2 Million on a personal injury case. The question is whether they were negligent in setting the ad damnun clause and whether the defense attorneys might be held in Judiciary Law 487 claims for failing to disclose excess insurance...

Summary Judgment in Broadway Legal Malpractice Case

Posted on May 18, 2009
Broadway and Barry Manilow...it seemed destined for success, but lack of investors doomed the production of Harmony. The case revolved around alleged wrong advice on the date of the second option payment, which plaintiff has argued could have been made with the correct date advice...

A Pair of Cases: Are These Legal Malpractice?

Posted on May 15, 2009
This morning's Law Journal revealed a pair of cases in which just about the same thing happened. Attorneys acted badly, and the client suffers. Clients depend on their attorneys, and can do just about nothing without the attorney acting as intermediary...

RCM Technologies and Buchanan Ingersoll Legal Malpractice Case

Posted on May 14, 2009
Henry Gottlieb at Law.Com reports this $10.6 million Legal Malpractice settlement between Buchanan Ingersoll and RCM Technologies over a stock registration agreement, today. Here is the news article: " A lawyer and two Philadelphia firms have agreed to pay $10...

Real Estate Sales and Legal Malpractice

Posted on May 13, 2009
Real Estate sales and the plummeting economic scene have dominated the news cycles for months now. Legal Malpractice litigation often follows economic disturbances, and this case, Walker v. Berman, 2009 NY Slip Op 50887(U) ; Decided on May 4, 2009 ; Supreme Court, New York County ; Stallman, J...

Can This Happen in New York and is it Legal Malpractice

Posted on May 12, 2009
Questions of attorney billing, expenses and disbursements often surface in the guise of a legal malpractice defense. Did the attorneys over bill ? Did they over-charge for expenses? May a law firm use Lexis or WestLaw as a profit center? For example, if the law firm is paying a flat fee for legal research, may it charge hourly legal research rates to the client [not the attorney's time...

Huge Akin Gump Legal Malpractice Verdict

Posted on May 11, 2009
This case has been widely reported, and we covered it a month ago, too. Here, from the Blog of Legal Times we read about the $ 72 million legal malpractice verdict based upon patent law. "Yesterday, a federal jury in San Antonio slapped Akin Gump Strauss Hauer & Feld with a $72...

Failure to Appeal and Judiciary Law 487 in Legal Malpractice

Posted on May 08, 2009
Two of the hardest causes of action to prove and prevail upon in legal malpractice are the "failure to appeal" claim and one under Judiciary Law 487. Failure to appeal claims are difficult because one must not only prove that the attorneys could have and failed to file an appeal, but one must also prove [to a judge and not to a jury] that the appeal would have prevailed...

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