Legal Malpractice

Is is Legal Malpractice to Try Too Hard for the Client?

By (Andrew Lavoott Bluestone)

There are lawyers who try cases to the limit and there are lawyers who try too hard.  This morning we were reading a NY Times article about the "capital panel.'  These are attorneys who will eventually represent the Guantanimo defendants at their Federal terrorism trials.  A potential for the death penalty exists in these cases.

In contradistinction, there is the garden or varietal civil case in which an attorney just goes too far.   KLIN Construction Group Inc. v. Blue Diamond Group Corp., 5215/09;Decided: November 20, 2009;  Justice Arthur M. Schack; KINGS COUNTY is one such case.  Justice Schack has become known recently for his imposition of sanctions, and has held attorneys in contempt.  Read the case closely, and we come away with the belief that a little less hostility by the sanctioned attorney would have gone a long way.

"Defendants' counsel, in his affirmation in support of MS # 2, asserts that he received this Court's April 24, 2009 Northside Tower Realty, LLC decision and order on April 27, 2009. Then, that day, he wrote and faxed a letter to Ms. Wang, with a copy of my April 24, 2009 decision and order, asked her to withdraw the instant action as moot and warned her that her failure to do so would result in a sanctions motion [exhibit B of MS # 2 OSC]. Ms. Wang, the same day, wrote and faxed to plaintiff's counsel a response rejecting the notice because she had not been served with a notice of entry. Further, she alleged that defendants' counsel's letter was a threat, which is "attorney misconduct, and in and of itself sanctionable [exhibit C of MS # 2 OSC]."

The letter by defendants' counsel was not a threat but fair warning of the consequences to follow if Ms. Wang continued the instant action. Further, CPLR Rule 2220 (b) states that "[s]ervice of an order shall be made by serving a copy of the order." Notice of entry of an order only affects the time to appeal and the time to re-argue. CPLR §5513; CPLR Rule 2221 (d) (3)."
 

"In MS # 2, plaintiff's counsel also raised the issue of false jurats in the subject November 21, 2009-mechanic's lien and the November 21, 2009-affidavit of service of the mechanic's lien. The November 21, 2008-mechanic's lien was executed by Ming Chin Lin, President of KLIN, who swore that she signed the mechanic's lien in the State of New York, County of Kings [exhibit E of MS # 2 OSC]. The notary who took her signature was plaintiff's counsel, Ms. Wang. Further, Ms. Lin swore in the affidavit of service that she served the mechanic's lien on the same day, November 21, 2008, on defendant BLUE DIAMOND, "by depositing a true copy of [mechanic's line]…in an official depository of the United States Postal Service in New York State." Ms. Wang signed the jurat as the notary [exhibit E of MS # 2 OSC].

However, in a related Supreme Court, Nassau County action, Blue Diamond Group Corp. v. Klin Construction Group, Inc. and Chunyu Jean Wang, Index No. 22040/08, for breach of contract and the filing of false jurats with respect to the subject November 21, 2008-mechanic's lien, both Ms. Wang and Ms. Lin admitted that the mechanic's lien was signed in Taiwan, not New York. Ms. Wang, in her January 14, 2009 affirmation in support of her motion to dismiss [exhibit F of MS # 2 OSC] states in ¶3:

Pictures of Ming Chin Lin and Ms. Wang at the marriage ceremony of her brother, Kenny Lin…prove that Ms. Wang, attorney for defendants, witnessed Ming Chin Ling, the President of the corporate defendant, KLIN Construction Group, Inc., sign the refiled Mechanic's Lien on behalf of the corporate defendant in Taiwan. Ming Lin Chin met Ms. Wang in Taiwan on November 21, 2008, because both were attending the marriage ceremony of Ming Chin Lin's brother, Kenny Lin, on November 22, 2008…As attorney for the corporate defendant, Ms. Wang is fit to acknowledge her client's signature in Taiwan, especially since the papers are to be filed in the same proceeding as her representation."

"Ms. Wang's conduct with respect to: her use of false jurats and material factual statements that are false; her continued failure to discontinue the instant action when notified of my cancellation and discharge of the subject November 21, 2008 mechanic's lien on April 27, 2009; and, her contemptuous refusal to provide this Court with affirmations as to her Father's alleged medical emergency on May 29, 2009 and her absence on June 26, 2009; is completely without merit in law. This Court, in having to adjudicate MS #'s 2, 3 and 5, conduct hearings and conferences on May 29, 2009, June 1, 2009, June 26, 2009 and July 13, 2009, and draft this decision and order wasted valuable judicial resources.

Therefore, this Court, pursuant to 22 NYCRR §130-1.1 (a), and as discussed above, has the discretion to award costs for reimbursement of "for actual expenses reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct as defined" in 22 NYCRR §130-1.1 (c), and may impose sanctions upon an attorney who engages in frivolous conduct. In his post hearing brief, defendants' counsel, Mr. Scher, submitted detailed documentation with respect to defendants' "actual expenses reasonably incurred and reasonable attorney's fees resulting from frivolous conduct," from April 27, 2009 to the August 17, 2009 submission of the post hearing brief. The documentation demonstrates that defendants had actual expenses, which the Court deems reasonably incurred, of $4,158.83, resulting from Ms. Wang's frivolous conduct. Further, with respect to reasonable attorney's fees, Mr. Scher billed $53,910.45 (108.91 hours at $495.00 per hour, pursuant to Retainer Agreements, submitted with the post-hearing brief), and his associate, Austin Graf, Esq., billed $9,967.50 (26.58 hours at $375.00 per hour, pursuant to Retainer Agreements, submitted with the post-hearing brief). This total of $63,877.95 ($53,910.45 + $9,967.50) is deemed by the Court as reasonable attorney's fees resulting from Ms. Wang's frivolous conduct."

Full post as published by New York Attorney Malpractice Blog on December 08, 2009 (boomark / email).