Legal Malpractice

The Wrong Client and Legal Malpractice

By (Andrew Lavoott Bluestone)

Client selection is a fine art, and one in which every attorney must apprentice.  Select the right client - with a good cause of action and of a sane temperament - and all may go well.  Select the wrong client, and a world of abuse and possibly legal malpractice litigation may follow.

Breytman v Schechter ;2011 NY Slip Op 50125(U) ;Decided on February 8, 2011 ;Supreme Court, Kings County ;Schack, J. is one of those cases which end with the Judge ordering that the plaintiff may not file any more papers except with the approval of the administrative judge.  Of course, it gets worse than that.
 

"SCHECHTER, on the next day, advised plaintiff BREYTMAN that he would seek to be relieved. Plaintiff responded with a rambling letter, dated November 31, 2006 [sic], repeatedly accusing SCHECHTER of senility and incompetence, and then in larger print and boldface stating "YOU ARE FIRED" [exhibit D of motion]. Thereafter, on December 7, 2006, plaintiff BREYTMAN served SCHECHTER with a "Notice with Motion to Compel and Cease and Desist," in which he advised SCHECHTER that he would proceed pro se and requested the file and "privileged material" [exhibit E of motion]. Typical of Breytman's abusive behavior is a letter, dated January 2, 2007 [p. 148 of 209 pages attached to February 25, 2009 order to quash the subpoena of December 5, 2008, in Kings County Clerk Minutes for Kings County, Supreme Court Index No. 2423/06, ALEXANDER BREYTMAN v OLINVILLE REALTY LLC and WEINER REALTY], from BREYTMAN to SCHECHTER, in which BREYTMAN called SCHECHTER, among other things, "incompetent habitual liar," "pure Asshole " and "cretin."

Justice Karen Smith of Supreme Court, New York County, on March 7, 2007, issued a decision and order [exhibit F of motion], in which she: consolidated the two actions; dismissed all malicious prosecution claims; and, permitted the false arrest claim to proceed against the landlord and the building superintendent. Justice Smith, in a separate order the same day, March 7, 2007, relieved SCHECHTER as counsel for plaintiff BREYTMAN. Subsequently, while [*4]plaintiff proceeded as a pro se litigant, the remaining false arrest claim against the non-city defendants was dismissed [exhibit 1 of cross-motion].

Despite being relieved as BREYTMAN's counsel, SCHECHTER's contact with BREYTMAN, as well as BREYTMAN's abusive conduct toward SCHECHTER, did not end. SCHECHTER had the entire file photocopied and available for plaintiff. Plaintiff wanted the original file, despite being informed by Justice Milton Tingling, to whom the case had been reassigned in Supreme Court, New York County, that he was only entitled to a copy of the file. SCHECHTER explained, in ¶ 30 of his affidavit in support of the motion, that "[w]hile I had offered to provide plaintiff with a copy of the file, I did not want to provide him with the original out of concern that he might alter the original documents. In proceedings before the court in the underlying actions, plaintiff submitted copies of my letters which left out words and sentences or were otherwise altered."

On December 5, 2008, long after SCHECHTER provided BREYTMAN with a copy of the file, BREYTMAN served SCHECHTER with a subpoena for the original file, in connection with another of his pro se actions against the landlord, ALEXANDER BREYTMAN v OLINVILLE REALTY LLC and WEINER REALTY, Supreme Court, Kings County, Index No. 2423/06 [exhibit G of motion]. Then, SCHECHTER served an order to show cause [OSC], dated December 12, 2008, to quash the subpoena and for a protective order [exhibit H of motion]. In his affirmation in support of the OSC, SCHECHTER pointed out how BREYTMAN altered documents to place SCHECHTER in a bad light and spent $1,091.34 to have the entire file copied for BREYTMAN. Then, BREYTMAN, in a letter to SCHECHTER, dated December 29, 2008, told SCHECHTER that he had twenty days to deliver "my property" but "[y]ou had chosen death you got no one to blame but yourself I am given another 10 days more days to deliver my property after which you fund how unwise your obtuse decision is [sic] [p. 206 of 209 pages attached to February 25, 2009 order to quash the subpoena of December 5, 2008, in Kings County Clerk Minutes for Kings County, Supreme Court Index No. 2423/06, ALEXANDER BREYTMAN v OLINVILLE REALTY LLC and WEINER REALTY]."

While this issue was pending before Justice Yvonne Lewis, BREYTMAN, in a February 18, 2008 letter to Justice Lewis [exhibit I of motion], admitted that he altered documents to redact privileged material. The same day, BREYTMAN sent a letter to SCHECHTER [exhibit J of motion] in which he told SCHECHTER "[a]s usually you are fat on your mouth short on your feet [sic]," "I will sue" and "show how incompetent you are." Justice Lewis, on February 25, 2009, granted SCHECHTER's OSC to quash the December 5, 2008 subpoena. Further, she ordered that BREYTMAN "shall not file the same or similar applications for relief without the prior written permission of the Court."

Justice Lewis, at the February 25, 2009 oral arguments on SCHECHTER's OSC, told plaintiff not to directly contact SCHECHTER. However, plaintiff BREYTMAN continued to directly contact SCHECHTER with motion papers [exhibit M of motion]. SCHECHTER's counsel sent a letter to BREYTMAN, dated June 18, 2010, advising him not to directly serve SCHECHTER [exhibit K of motion]. In the February 22, 2010 preliminary conference order in the instant action, signed by myself, plaintiff was ordered "to have no contact with defendant directly [exhibit L of motion]." However, plaintiff violated my order by subsequently sending an abusive letter [exhibit N of motion] to SCHECHTER, stating "[t]ake your [threats] and your [*5]family and shove up your ass you dick. I will only serve you. I suppose [being an] asshole runs in the family. I do not recognize your family, get used to it, you ASSHOLE DICKHEAD."

Despite being ordered by Justice Lewis, on February 25, 2009, to "not file the same or similar applications for relief without the prior written permission of the Court," plaintiff commenced the instant action, by filing the summons and his rambling, disjointed verified complaint on January 23, 2010, with eight causes of action, many of them duplicative. Plaintiff seeks, according to the verified complaint: the return of the $7,500.00 retainer; the return of the $1,500.00 psychologist's fee; $5,000,000.00 for breach of contract; $5,000,000.00 "for causing me paint and suffering [sic]"; $10,000,000.00 for punitive damages; and, the return of the original file and all copies of any material in the file. "

Full post as published by New York Attorney Malpractice Blog on February 16, 2011 (boomark / email).