Difference of Opinion regarding Mandatory Attorney Fee Dispute Arbitration

The Fee Dispute Resolution Program (22 NYCRR §137) was created to mandate arbitration of fee disputes between attorneys and their former clients in civil matters. It has been subject to differing opinions among different departments leading to divergent opinions on the issue of whether or not an arbitration is necessary when the former client fails to object the validity of the underlying fee.

In 2000, the Second Department determined in Scordio that when there is a fee dispute between an attorney and a former client, the attorney was not required to send notice to the former client informing them of their rights to arbitrate when there was no dispute or objection to the reasonableness of the attorney’s fees. Scordio v. Scordio, 270 A.D.2d 328 (2nd Dept. 2000).

The decision in Scordio would ordinarily lend to the notion that an attorney may pursue collection of his fees without notice to a client of his right to arbitration but the rules regarding arbitration of fee disputes were modified and expanded in 2002, and now lists exceptions to when a notice to a client of his right to arbitrate can be waived. In Wexler & Burkhart, the court held that a reading of the Rules in this way would “effectively eviscerate Part 137 of the Rules, a comprehensive scheme for the informal and expeditious resolution of fee disputes between attorneys and clients through arbitration and mediation.” Wexler & Burkart LLP v. Grant, 12 Misc.3d 1162(A) (Nassau Cty. 2006).

The court in Rotker determined that “the rules of the appellate division establish a clear public policy in favor of the arbitration of attorney-client fee disputes.” Rotker v. Rotker, 195 Misc.2d 768 (Westchester Cty. 2003). Rotker was a matrimonial case where the attorneys for the wife instituted a retainer lien against her for non-payment of her fees. The attorneys asserted that since the client had not disputed the fees, under Scordio, they were entitled to payment without arbitration. The court held that even if it was determined that counsel was not fired for cause, the attorneys were required to provide the client notice of her rights to arbitrate the dispute, with said notice given in writing. If the client then failed to avail herself of her right to arbitrate after 30 days of mailing the notice, the right to arbitration would be waived. Id at 790-791.

The court in Rotker went so far as to hold that the failure of former counsel to send the 30-day notice, regardless of whether or not there is a dispute, would mandate the dismissal of any action for unpaid counsel fees. Rotker at 791.

The basic tenet held in these decisions is the idea that if the Scordio argument is used as a means to avoid Rule 137, then nearly anyone can circumvent the protections that Rule 137 was meant to provide. Wexler & Burkhart LLP at 214;

The position of the Wexler & Burkhart decision and the Rotker decision was most recently supported in Noel F. Caraccio, where the court held that regardless of whether there was an objection or dispute as to the fees when they were billed, the attorney was still required to send the 30-day notice of the right to arbitrate. Noel F. Caraccio PLLC v. Thomas, 29 Misc.3d 1230 (A) (City Ct., Rye 2010); Rotker at 791.

Thus, it is questionable as to whether Scordio remains good law, and as such, it is prudent to notify the former client of his rights to arbitrate the fee in order to prevent a dismissal of an attorney’s action for payment.

— Elisa S. Rosenthal, Esq.

Associate

Law Office of Richard A. Klass

Copyr. 2014

Elisa S. Rosenthal, Esq. is an associate of the law firm of Richard A. Klass, Esq.. She practices primarily in the areas of commercial litigation, debt collection/enforcement of judgments, legal malpractice and real estate litigation. She may be reached by phone at (718) COURT-ST [(718) 268-7878)] or www.courtstreetlaw.com.

Contact our office if you have questions.

Sincerely yours,
Richard A. Klass, Esq.
Your Court Street Lawyer
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copyr. 2014 Richard A. Klass, Esq.
The firm's website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation in Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-mail to richklass@courtstreetlaw.com with any questions.
Prior results do not guarantee a similar outcome.

Judiciary Law Section 487 punishes attorneys who commit fraud upon the court, other parties or clients.

There is a special statute designed to punish attorneys who commit fraud upon the court, other parties or their clients, Judiciary Law Section 487. Section 487 states as follows:

Misconduct by attorneys. An attorney or counselor who:

1. Is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party; or,
2. Wilfully delays his client's suit with a view to his own gain; or, wilfully receives any money or allowance for or on account of any money which he has not laid out, or becomes answerable for,
Is guilty of a misdemeanor, and in addition to the punishment prescribed therefor by the penal law, he forfeits to the party injured treble damages, to be recovered in a civil action.

Generally, New York courts have held that a cognizable claim under Judiciary Law §487 exists when there is a ‘chronic and extreme pattern of legal delinquency.’ Solow Management Corp. v. Seltzer, 18 AD3d 399 (1st Dept. 2005), citing to Jaroslawicz v. Cohen, 12 AD3d 160 (1st Dept. 2004); Cohen v. Law Offices of Leonard and Robert Shapiro, 18 AD3d 219 (1st Dept. 2005). Some courts have held “a single act or decision, if sufficiently egregious and accompanied by an intent to deceive, is sufficient to support liability [under Judiciary Law §487]. Trepel v. Dippold, 2005 WL 1107010 (SDNY 2005). In the cited Jaroslawicz action, the First Department held:

The cause of action for statutory treble damages under Judiciary Law §487 was properly dismissed because there is no pleading that defendants acted with ‘intent to deceive the court or any party,’ and no pleading of a pattern of delinquent, wrongful, or deceitful behavior by the attorney defendants, or of pecuniary damages resulting from the alleged wrong.

Coupled with the above pleading requirements, the plaintiff must plead that “the alleged deceit forming the basis of such a cause of action, if it is not directed at a court, must occur during the course of a ‘pending judicial proceeding.’” Costalas v. Amalfitano, 305 AD2d 202 (1st Dept. 2003), citing to Hansen v. Caffry, 280 AD2d 704, lv. denied, 97 NY2d 603.

In order to recover under Judiciary Law §487, a plaintiff must plead and prove both actual deceit by the attorney, Bernstein v. Oppenheim, 160 A.D.2d 428, (1st Dep't 1990), and causation, that is, that the deceit or collusion actually caused plaintiff's damages. See, e.g., Manna v. Ades, 237 A.D.2d 264 (2d Dept. 1997); DiPrima v. DiPrima, 111 A.D.2d 901 (2d Dept. 1985); Brown v. Samalin & Bock, P.C., 155 A.D.2d 407 (2d Dept. 1989).

Concerning the issue as to what constitutes “deceit” under Judiciary Law§487, the court in Amalfitano v. Rosenberg, 428 F.Supp.2d 196 (SDNY 2006), set forth the definition from Black’s Law Dictionary (8th Ed. 2004), as including: (1) The act of intentionally giving a false impression… (2) A false statement of fact made by a person knowingly or recklessly (i.e. not caring whether it is true or false) with the intent that someone else will act upon it… (3) A tort arising from a false representation made knowingly or recklessly with the intent that another person should detrimentally rely on it.

As to the issue of what constitutes damages under Judiciary Law §487, the court in Amalfitano v. Rosenberg, supra, determined that the parties’ costs in defending themselves in the litigation against an action which was founded upon deceit were damages under such section.

In a recent decision of the NYS Court of Appeals, Melcher v. Greenberg Traurig, LLP, 2014 NY Slip Op. 02213 [2014], the court had to determine whether the statute of limitations in actions brought under Judiciary Law Section 487 were governed by the 3-year statute of limitations period under CPLR 214(2) or the "catch-all" provision under CPLR 213(1), which provides a 6-year statute of limitations period in which to bring an action against an attorney for deceit or collusion. The Court held that claims brought against attorneys for deceit or collusion under Judiciary Law Section 487 are subject to the 6-year statute of limitations set forth in CPLR 213(1).


Feel free to contact me if you have questions.

Sincerely yours,
Richard A. Klass, Esq.
Your Court Street Lawyer
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copyr. 2014 Richard A. Klass, Esq.
The firm's website: www.CourtStreetLaw.com

Richard A. Klass, Esq., maintains a law firm engaged in civil litigation in Brooklyn Heights, New York. He may be reached at (718) COURT-ST or e-mail to richklass@courtstreetlaw.com with any questions.

Prior results do not guarantee a similar outcome.

Statute of Limitations for Legal Malpractice Action

CPLR 214(6) provides that “an action to recover damages for malpractice, other than medical, dental or podiatric malpractice, regardless of whether the underlying theory is based in contract or tort” must be commenced within 3 years.

The cause of action for malpractice accrues at the time of the act, error or omission. See, Julian v. Carrol, 270 AD2d 457 [2d Dept. 2000]; Goicoechea v. Law Offices of Stephen Kihl, 234 AD2d 507 [2d Dept. 1996]; Shumsky v. Eisenstein, 96 NY2d 164 [2001].

The Court of Appeals has held that a cause of action for legal malpractice accrues against the attorney when the statute of limitations expires on the underlying action for which the attorney was retained. See, Shumsky v. Eisenstein, supra. In Burgess v. Long Island Railroad Authority, 79 NY2d 777 [1991], the Court of Appeals held:

The Continuous Representation Toll of a Legal Malpractice Action

The accrual of the three-year statute of limitations is tolled during the period of the lawyer’s continuous representation in the same matter out of which the malpractice arose under the theory that the client should not be expected to question the lawyer’s advice while he is still representing the client. See, Lamellen v. Kupplungbau GmbH v. Lerner, 166 AD2d 505 [2d Dept. 1990]; Shumsky v. Eisenstein, supra. Under the continuous representation doctrine, there must be clear indicia of an ongoing, continuous, developing, and dependent relationship between the client and the lawyer. See, Kanter v. Pieri, 11 AD3d 912 [4 Dept. 2004]; Lamellen v. Kupplungbau GmbH v. Lerner, supra; Clark v. Jacobsen, 202 AD2d 466 [2 Dept. 1994].

Contact me if you have questions.

Sincerely yours,
Richard A. Klass, Esq.
Your Court Street Lawyer
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copyr. 2014 Richard A. Klass, Esq.
The firm's website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation in Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-mail to richklass@courtstreetlaw.com with any questions.
Prior results do not guarantee a similar outcome.

Klass in the News: Malpractice Rulings Extend NYC Lawyers' Ties To Old Clients

By Pete Brush

Law360
New York
September 11, 2014, 8:22 PM ET

New York City trial court and appellate rulings extending the clock on professional negligence claims against law firms that no longer directly represent those clients could boost malpractice risk and leave attorneys with tough choices over communicating on past matters, experts say....

...The current lay of the land in New York City, where the First Department holds sway, means lawyers must take careful approaches when considering how they might communicate with clients — especially unhappy clients — after the work at hand is done, according to Brooklyn-based attorney Richard A. Klass, who represents malpractice plaintiffs and defendants.

Transactional lawyers, for example, might want to foreclose advice on litigation or appeals at the outset, according to Klass, and they also may want to make it clear that no more advice will be forthcoming at the completion of an engagement in order to shield themselves.

"They should beef up both their hello letters and their goodbye letters," Klass said.

To read the entire article, click here.



Contact me if you have questions.

Sincerely yours,
Richard A. Klass, Esq.
Your Court Street Lawyer
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copyr. 2014 Richard A. Klass, Esq.
The firm's website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation in Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-mail to richklass@courtstreetlaw.com with any questions.
Prior results do not guarantee a similar outcome.

Lawyer Misses the Bus (a $300,000 tale of woe)

The cabbie’s nightmare began with courtesy and continued with insult and injury.

It began as just another busy day in the life of a New York livery cab driver: picking up and dropping off passengers. On this particular day, the cabbie had pulled to the curb just past a bus stop in Manhattan to let out a passenger. He then stepped out of the car to open the passenger’s door. Perhaps he thought a little extra courtesy might result in a bigger tip but, no matter the reason, in this case, it cost him dearly.

The next moment, a New York City Transit Authority (NYCTA) bus, while running its regular route, pulled behind the livery cab at the bus stop. The bus driver opened his door and shouted at the driver, “You idiot, what are you doing in the bus stop!” The cabbie calmly apologized and said he’d move his car. However, without waiting for that to happen, the bus driver drove the bus close to the cabbie, requiring him to close his passenger door slightly so as to avoid his car door being damaged by the bus. The bus driver then accelerated the bus and drove closer, striking the cabbie, and causing him severe personal injuries.

The injured driver hired a law firm to bring a personal injury claim. That law firm brought a case against the NYCTA, seemingly the owner and operator of the bus. Unfortunately, the law firm did not learn that the bus operator could only have been an employee of a separate public authority known as the Manhattan and Bronx Surface Transit Operating Authority (MABSTOA) until long past the statute of limitations period in which to make a claim. Only at the deposition of the bus depot dispatcher, held more than two years after the incident, did the law firm learn from the witness that the bus operators for that bus route were all MABSTOA employees and not NYCTA employees (and only because all bus operators listed on the “crew report” had the designation “M” for MABSTOA).

The case against the NYCTA went to trial and the jury rendered a verdict in favor of the NYCTA and dismissed the claims of the livery cab driver. The cab driver then retained Richard A. Klass, Your Court Street Lawyer to make a claim against the personal injury law firm for legal malpractice.

Time-barred by the Statute of Limitations:

The concept of a “Statute of Limitations” is that people are afforded a certain amount of time to take action concerning a legal claim they may have; if that period of time passes without taking action, then the ability to pursue the legal claim has been waived. Most people are familiar, for instance, that in New York State the statute of limitations period within which to file most personal injury cases is three years from the date of accident. In this particular case, though, a notice of claim had to be served upon MABSTOA within 90 days of the incident under certain rules contained in the Public Authorities Law and General Municipal Law §50-e; then, an action had to be commenced in 1 year and 90 days after the incident.

Confusion between the MTA, NYCTA and MABSTOA:

Within the “alphabet soup” letters of all of these different municipal authorities lays a trap to catch the unwary. According to the statutory scheme laid out in the Public Authorities Law §1260 et. seq., the Metropolitan Transportation Authority (MTA) is a public benefit corporation which was created to oversee the mass transportation systems of New York City, and which functions as an umbrella organization for various other independent but affiliated agencies. See, In re New York Public Interest Research Group Straphangers Campaign, Inc., 309 AD2d 127 [1 Dept. 2003]. However, aside from the MTA’s overall organization, the MTA and each of its subsidiaries (which include NYCTA and MABSTOA) must be separately sued and are not responsible for each other’s torts. See, Mayayev v. Metropolitan Transportation Authority Bus, 74 AD3d 910 [2 Dept. 2010]. As provided for in Public Authorities Law §1203-a, MABSTOA is a subsidiary, public benefit corporation.

In Nowinski v. City of New York, 189 AD2d 674 [1 Dept. 1993], the plaintiff sued MABSTOA for personal injuries sustained at a location for which the NYCTA maintained responsibility. The plaintiff sought to serve a late notice of claim and both MASTOA and NYCTA moved to dismiss the action. The court held that the injured person was time-barred from serving the late notice of claim, given that the statute of limitations had already long expired. (See, generally, Public Authorities Law §1276).

No claim for being “lulled” into a false sense of security:

To the extent that the law firm could have claimed in its defense that it could not have known of the relationship between the MABSTOA, MTA, NYCTA and the relevant bus operators identified in the crew report, the court in Delacruz v. Metropolitan Transportation Authority, 45 AD3d 482 [1 Dept. 2007], held that the injured plaintiff could not claim that, by the actions of the MTA, he was “lulled into a false sense of security” that his lawyer sued the right public authority. The court specifically held the doctrine of “equitable estoppel” applies only when a governmental subdivision acts wrongfully or negligently inducing reliance by a party who is entitled to rely and who changes his position to his detriment or prejudice. There was no evidence here of any wrongful conduct by the NYCTA; it did not hide the information about MABSTOA or mislead the injured driver’s lawyer.

The legal malpractice claim was settled for $300,000 to pay for the livery cab driver’s injuries and medical lien. This case only emphasizes the point of how important it is for a lawyer to identify the proper legal entities to be sued on behalf of a client.

— by Richard A. Klass, Esq.

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copyr. 2014 Richard A. Klass, Esq.
The firm's website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation in Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-ml to RichKlass@courtstreetlaw.com with any questions.
Prior results do not guarantee a similar outcome.

Art credits:
Image at top of page: El Gouna (Red Sea, Egypt): public transport bus, customized and highly decorated in genuine Pakistani style. Coach built by Chishti Engineering (Karachi) and decorated by S. Gulzar (Karachi). Author/photographer: Marc Ryckaert, 2009. This image is licensed under the Creative Commons Attribution 3.0 Unported license.

Not so fast. Lawyer Can’t Be Displaced by Client without Court Order.

The client was injured and hired a lawyer to prosecute his personal injury claim against various entities for negligence. The lawyer agreed to handle the personal injury claim for a one-third contingent legal fee. “Contingent fee” refers to an arrangement with an attorney for payment of a percentage of an amount recovered for the client through settlement or resolution of the claim; a one-third contingency is fairly standard in personal injury matters.

After being retained by the client, the lawyer took a number of steps towards prosecuting the claim, including (1) commencing an action (termed a “special proceeding” in the New York State Supreme Court) against a municipality to file a “late” notice of claim to sue that government entity; (2) representing the client in the related worker’s compensation claim before the New York State Worker’s Compensation Board; and (3) commencing an action for personal injuries against the potentially-liable company in the New York State Supreme Court.

After the action was started in the New York State court, the defendant “removed” the action to federal court (based on a concept known as “diversity,” because that defendant was an out-of-state company). In the federal court case, the action continued with discovery proceedings taking place between the parties. The defendant even made an offer to settle the personal injury claim for $50,000, which was rejected.

Displacement of the Attorney
Three days after the $50,000 settlement offer, the lawyer received a letter from another law firm enclosing a Consent to Change Attorney form for the lawyer to sign and return with the file. The letter indicated that the client had now retained the other law firm to continue litigating his personal injury claim and, effectively, terminated the lawyer’s representation in the federal court case.

It is not uncommon for a client to change attorneys midstream during litigation; the usual steps taken upon substitution of attorneys is for the outgoing attorney to deliver the client’s file to the incoming attorney and for the attorneys to come to an arrangement concerning the split of the contingency fee when and if the case settles or resolves. It is also common for the incoming attorney to pay the outgoing attorney’s expenses on the file, including court filing fees, process service fees, and the costs of medical records and investigators. Unfortunately, in this situation, the incoming attorney was unwilling to pay the outgoing attorney’s expenses; he also refused to negotiate any division of the one-third contingency legal fee with the outgoing attorney, claiming instead that the outgoing attorney was entitled to nothing.

Attorney Cannot Be Displaced without Court Order
The outgoing attorney contacted Richard A. Klass, Your Court Street Lawyer, about enforcing his rights to both his legal fee and reimbursement for expenses. The first step was to draft an Order to Show Cause seeking both a “charging” lien upon any future legal fee upon settlement of the case for the lawyer’s percentage and a “retaining” lien to hold onto the client’s file until the expenses were paid.

There is a rule in the United States District Court for the Eastern District of New York concerning the situation where an attorney withdraws or is displaced from a case:

Local Civil Rule 1.4. Withdrawal or Displacement of Attorney of Record.An attorney who has appeared as attorney of record for a party may be relieved or displaced only by order of the Court and may not withdraw from a case without leave of the Court granted by order. Such an order may be granted only upon a showing by affidavit or otherwise of satisfactory reasons for withdrawal or displacement and the posture of the case, including its position, if any, on the calendar, and whether or not the attorney is asserting a retaining or charging lien.

The Order to Show Cause stated that the lawyer was “displaced” from the case by his former client for no legitimate reason and that the lawyer could only be displaced by Order of the Court. Stated in the accompanying affirmation of the outgoing attorney was that the incoming attorney (and, presumably, his former client) were proposing to pay him $0 for two years’ worth of work on the file. It was urged that the federal judge uphold longstanding New York State law that protects attorneys who render legal services on behalf of their clients.

Charging and Retaining Liens
Under New York State law, an attorney who is discharged by his client is statutorily entitled to a charging lien on any monetary recoveries obtained by the former client in the proceedings in which the attorney had rendered legal services. See Judiciary Law § 475. In Mello v. City of New York, 303 AD2d 564 [2003], the court held that where an attorney’s services were provided on a contingent-fee basis, the court should determine the amount of the lien to be fixed in accordance with the attorney’s request, as a contingent percentage based on the proportionate percentage of work he performed, to be determined at the conclusion of the action (see Matter of Rosenblum, 121 AD2d 546 [1986]; see also Lai Ling Cheng v Modansky Leasing Co., 73 NY2d 454, 457-458 [1989]).

A discharged attorney is also entitled to a retaining lien on the former client's papers and property that are in the attorney's possession, under New York common law. See Resolution Trust Corp. v. Elman, 949 F.2d 624, 626 (2d Cir.1991). This mean that the client’s file can be retained by an attorney until he is paid, similar to how a mechanic can hold onto a car until the car’s owner pays for the repairs.

A conference was held with the judge. The judge decided that the client’s file would be exchanged only upon payment of the file expenses and that the outgoing attorney’s percentage of the overall legal fee would be determined when the case settled or resolved. About six months later, the incoming attorney settled the case for $70,000. The charging lien was settled through negotiations between the attorneys, with the outgoing attorney being paid $16,000 for one third of the initial $50,000 settlement offer and the incoming attorney being paid $6,000 for one third of the next $20,000 settlement portion.

Contact me if you have any questions.

Sincerely yours,
Richard A. Klass, Esq.
Your Court Street Lawyer
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copyr. 2011 Richard A. Klass, Esq.
The firm's website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation in Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-mail to richklass@courtstreetlaw.com with any questions.
Prior results do not guarantee a similar outcome.

Client Cannot Sue His Lawyer for Nonpecuniary Damages

In the recent decision of Dombrowski v. Bulson, 2012 NY Slip Op. 04203 [May 31, 2012], the New York State Court of Appeals dealt with an open issue in the area of legal malpractice, namely: whether a former client may recover nonpecuniary damages in a law suit brought against his attorney for legal malpractice arising from the client’s alleged wrongful incarceration.

Client’s conviction for attempted rape and sexual abuse:

In this legal malpractice case, the plaintiff was convicted in 2000, after a jury trial, of attempted rape, sexual abuse and endangering the welfare of a child. The plaintiff brought a motion pursuant to Criminal Procedure Law Section 440.10 to vacate his conviction, arguing that he had received ineffective assistance of counsel. The state court judge denied the motion and determined that the plaintiff’s former criminal defense attorney provided meaningful representation in the case.

Subsequently, the plaintiff sought a writ of habeas corpus in federal court. He indicated numerous deficiencies of his former attorney, including failing to investigate or present evidence concerning a defense, interview potential witnesses and cross-examine the victim regarding discrepancies in her testimony. After a hearing, the federal Magistrate found errors by the former defense counsel which made it difficult for the jury to make a reliable assessment of the critical issue of the victim’s credibility. Accordingly, the petition was conditionally granted unless further criminal proceedings were brought against the plaintiff. The plaintiff was not reprosecuted and the indictment was then dismissed.

Commencement of legal malpractice case:

The plaintiff then brought a legal malpractice action against his former attorney, alleging that he suffered damages as a result of the attorney’s malpractice. In his complaint, the plaintiff indicated that he was incarcerated more than five years and was then serving for a period of postrelease supervision, and sought damages against the attorney for the time spent.

The Supreme Court granted the defendant attorney’s motion for summary judgment and dismissed the complaint, finding that the plaintiff’s receipt of Social Security disability benefits while he was incarcerated precluded the claim for pecuniary damages and that damages for any nonpecuniary losses were not permitted in the action for legal malpractice. The Appellate Division modified and reinstated that portion of the complaint which sought nonpecuniary damages. The Appellate Division held that, while nonpecuniary losses were not available for legal malpractice claims where the underlying action was a civil matter, an individual who had been wrongfully convicted as a result of legal malpractice in a criminal matter could recover compensatory damages for loss of liberty and other losses resultant from his imprisonment.

Standard for a legal malpractice case:

In order to recover damages in a legal malpractice action, a plaintiff must establish “that the attorney ‘failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession’ and that the attorney’s breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages.” Quoting McCoy v. Feinman, 99 NY2d 295, 301 [2002]. For malpractice actions arising from allegations of negligent representation in a criminal matter, a plaintiff must have at least a colorable claim of actual innocence – that the conviction would have not resulted but for the attorney’s negligent representation. See, Britt v. Legal Aid Society, 95 NY2d 443 [2000].

Rejection of claim for nonpecuniary damages:

Generally, New York courts have rejected claims by plaintiffs in legal malpractice actions against their former attorneys arising out of representation in civil proceedings. See, e.g. Dirito v. Stanley, 203 AD2d 903 [4 Dept. 1994]; Wolkstein v. Morgenstern, 275 AD2d 635 [1 Dept. 2000]. As held in various cases, there can be no recovery, other than for pecuniary losses, for emotional or psychological injury in a legal malpractice action.

In the case of Dombrowski v. Bulson, the plaintiff argued (and the Appellate Division acknowledged) that limiting recovery to pecuniary damages in cases of malpractice arising out of criminal matters would likely deny the claimants any meaningful relief. However, the Court of Appeals determined that there was no compelling reason to depart from the established rule limiting recovery in legal malpractice actions to pecuniary damages. Allowing claimants to recover nonpecuniary damages (which would be damages for items which cannot be measured on a formal monetary scale, such as pain and suffering or social isolation) could have devastating consequences on the criminal justice system. As the court stated, “Most significantly, such a ruling could have a chilling effect on the willingness of the already strapped defense bar to represent indigent accused. Further, it would put attorneys in the position of having an incentive not to participate in post-conviction efforts to overturn wrongful convictions.”

Accordingly, the Court of Appeals held that a plaintiff suing his former defense attorney cannot claim nonpecuniary damages in a legal malpractice action.




Contact me if you have questions.

Sincerely yours,
Richard A. Klass, Esq.
Your Court Street Lawyer
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copyr. 2012 Richard A. Klass, Esq.
The firm's website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation in Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-mail to richklass@courtstreetlaw.com with any questions.
Prior results do not guarantee a similar outcome.

Proximate Cause and Attorney Malpractice

Proximate Cause and Attorney Malpractice


There is a legal concept in personal injury law called "proximate cause." The big question in holding someone liable for the injuries of another is: "Was the defendant’s action the proximate cause of the injury sustained by the plaintiff?" In other words, was it the defendant’s fault or not.


In analyzing that question, various States have created other legal concepts, such as contributory negligence, comparative negligence, and strict liability. These concepts help tailor the causation element to the facts of the case. For instance, were the actions of the plaintiff a contributing factor to the injury sustained by him - by his failure to wear a seat-belt, did the plaintiff cause his own injuries, even if the defendant’s car hit his car.


In Barnett v. Schwartz, the Appellate Division – Second Department had to grapple with an issue concerning causation. Specifically, in a legal malpractice case, must the plaintiff prove that the defendant-attorney’s negligence was the sole proximate cause of the damages sustained by him?


In the case, the defendants argued that the trial court erred when it charged the jury that the plaintiffs needed to prove only that the defendants’ negligence was a proximate cause (i.e., a "substantial" cause) of damages. The defendants claimed that the trial court should have instead charged the jury that the plaintiffs needed to prove that "but for" such negligence they would not have sustained damages. The defendants argued that the "less rigorous standard" of causation charged by the court warranted reversal and a new trial.


The elements to be proved in a legal malpractice action have been subjected to various formulations. In the opinion, the court noted:


Thus, while it is clear that a plaintiff-client must prove negligence (i.e., that the defendant-attorney failed to exercise that degree of care, skill, and diligence commonly possessed and exercised by members of the legal community), some cases hold that the negligence must be "the" proximate cause of damages (Britt v Legal Aid Soc., 95 NY2d 443, 446; see e.g. Kleeman vRheingold, 81 NY2d 270; Caruso, Caruso & Branda, P.C. v Hirsch, 41 AD3d 407; Cohen v Wallace & Minchenberg, 39 AD3d 691; Cummings v Donovan, 36 AD3d 648; Kotzian v McCarthy, 36 AD3d 863), while others hold that it must be "a" proximate cause of damages (Bauza v Livington,40 AD3d 791, 793; see e.g. Moran v McCarthy, Safrath &Carbone, P.C., 31 AD3d 725; Terio v Spodek, 25 AD3d 781; Pistilli v Gandin, 10 AD3d 353). There are also cases from this court requiring the damages to be a "direct result" of the negligence (Caruso, Caruso & Branda, P.C. v Hirsch, 41 AD3d 407, 409; Kotzian v McCarthy, 36 AD3d 863; Moran v McCarthy, Safrath &Carbone, P.C., 31 AD3d 725). In the main, the cases from the Court of Appeals, including the most recent, do not expressly require that the negligence be either "the" or "a" proximate cause of damages, but require proof that, "but for" the negligence of the defendant-attorney, the plaintiff-client would have prevailed in the underlying action (in a classic lawsuit-within-a-lawsuit scenario) or would not have incurred damages (in an action alleging negligent advice, etc.) (see e.g., Leder v Spiegel, 9 NY3d 836; Rudolf v Shayne, Dachs, Stanisci, Corker &Sauer, 8 NY3d 438; AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428; Davis v Klein, 88 NY2d 1008; Carmel v Lunney, 70 NY2d 169). The defendants here, while not expressly describing the difference between proximate and "but for" causation, argue that the latter requires a greater, more direct degree of causation. However, we find no substantive import to the variations in the formulations discussed above, and hold that a plaintiff-client in a legal malpractice action need prove only that the defendant-attorney’s negligence was a proximate cause of damages.


Neither party cited, and research did not reveal, any case from the Court of Appeals or any other court expressly holding that "but for" causation was synonymous with sole proximate cause, or that it requires a degree of causation in legal malpractice cases greater than proximate cause, i.e., greater than that which must be typically proved as against any other professional or lay defendant in a negligence action. Further, there was no case discussing or identifying any basis for singling out attorneys for special treatment on the issue of causation.


As mentioned in the decision, The Pattern Jury Instruction on legal malpractice, which focuses upon the lawsuit-within-a-lawsuit scenario, does not expressly use either the phrase "but for" or "proximate cause" in its formulation (NY Pattern Jury Instruction 2:152). However, the comments to the instruction, while noting the "but for" formulation, provide that a defendant-attorney’s negligence need only be "a" proximate cause of damages and refer the reader to the general Pattern Jury Instruction on proximate cause (NY PJI 2:152, p 872, 880; NY PJI 2:70). As stated: "Moreover, our reading of the case law does not reveal that a heightened standard for causation is actually being applied in legal malpractice cases. Rather, all results can be explained by application of general principles of proximate cause."


The Second Department decision in Barnett v. Schwartz gave an instructive lesson concerning proximate cause in a legal malpractice case:

For example, in the lawsuit-within-a-lawsuit scenario, the plaintiff-client must prove that but for the defendant-attorney’s negligence they would have prevailed in the underlying action. Stated otherwise, if the plaintiff-client cannot prove that it would have prevailed in the underlying action, the defendant-attorney’s negligence was not a proximate cause of any damages arising from the loss of the same. Further, there are several decisions from this court requiring the plaintiff-client to prove both that the defendant-attorney’s negligence was "a" proximate cause of damages, and that "but for" such negligence it would have prevailed in the underlying action or would not have incurred damages (see e.g. Moran v McCarthy, Safrath & Carbone, P.C., 31 AD3d 725; Terio v Spodek,25 AD3d 781). Clearly, these decisions do not provide for two different measures of causation in the same standard. Indeed, it would appear that the "but for" language, which grew out of the lawsuit-within-a-lawsuit scenario (see Carmel v Lunney, 70 NY2d 169; N. A. Kerson Co. v Shayne, Dachs, Weiss, Kolbrenner, Levy & Levine, 45 NY2d 730), is merely a recognition of the factual particularities of proving proximate cause and damages in such an action. When applied in a case involving negligent legal advice (i.e., a case where there is no underlying cause of action to lose), it would appear that the "but for" formulation is merely a recognition of the factual complexities that may attend proving proximate cause when the legal advice was merely one of a myriad of factors that contributed to the plaintiff-client’s ultimate decision or course of action (see e.g. AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428).

Finally, we note, a conclusion that the "but for" formulation of causation requires proof that the negligence of the defendant-attorney was the sole proximate cause of damages is contrary to the holding of the Court of Appeals that the contributory negligence of the plaintiff-client may be pleaded as an affirmative defense (see Arnav Indus. Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner, 96 NY2d 300; see also Boudreau v Ivanov, 154 AD2d 638).

In determining that the legal malpractice case should continue and not be dismissed, the Second Department simply stated:


"In sum, regardless of the formulation employed, a plaintiff in a legal malpractice action need prove only that the defendant-attorney’s negligence was a proximate cause of damages."

Copyright 2008 and 2011
by Richard A. Klass, Esq.

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License Information

Proximate Cause and Attorney Malpractice by Richard A. Klass, Esq. is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 United States License. For permissions beyond the scope of this license, please contact Mr. Klass (email: RichKlass@CourtStreetLaw.com). Insert the words "reprint permission request" in the subject line of the email.

Publishing Guidelines

Permission is granted to publish this article electronically in free-only publications, like a website or ezine (print and non-free publications require permission) as long as the resource box is included without any modifications. All links must be active. A courtesy copy is requested on publication (email: RichKlass@CourtStreetLaw.com).


Article Title:
Proximate Cause and Attorney Malpractice


Article URL:
http://courtstreetlaw.com/articles/legal-malpractice-articles/proximate-cause-and-attorney-malpractice.html


Author Name:
Richard A. Klass, Esq.


Contact Email Address:
RichKlass@CourtStreetLaw.com


Author's Firm's Website:www.CourtStreetLaw.com


Word Count:1,251 words

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[This resource box must be included in any publications.]

* * *

Resource Box

About the Author:
Richard A. Klass, Esq. maintains a law firm engaged in civil litigation at 16 Court Street, 29th Floor, Brooklyn Heights, New York. He may be reached by phone at (718) COURT-ST [(718) 268-7878)] or RichKlass@courtstreetlaw.com with any questions. Prior results do not guarantee a similar outcome.


Read the original article in context at:http://courtstreetlaw.com/articles/legal-malpractice-articles/proximate-cause-and-attorney-malpractice.html
Additional articles by Mr. Klass may be found at: http://courtstreetlaw.com/articles/index.html.
Back issues from Mr. Klass' quarterly newsletter, Law CURRENTS are available at http://courtstreetlaw.com/newsletters/index.html.
Articles from Law CURRENTS may be available for reprint. Please see individual articles for license information.

* * *

Contact me if you have questions.


Sincerely yours,
Richard A. Klass, Esq.
Your Court Street Lawyer
-----------
copyr. 2011 Richard A. Klass, Esq.
The firm's website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation at 16 Court Street, 29th Floor, Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-mail to richklass@courtstreetlaw.com with any questions.
Prior results do not guarantee a similar outcome.

Striking the Affirmative Defense of Statute of Limitations in a Legal Malpractice Action

When a former client sues his attorney for legal malpractice, the defendant-attorney/law firm will almost invariably put forward, as part of its defense of the law suit, the Affirmative Defense of Statute of Limitations. In New York State, the period in which an attorney may be sued (whether for a tort [civil wrong] or breach of contract) is generally three (3) years from the date of malpractice. If the client does not sue the attorney/law firm within the applicable Statute of Limitations period, then the case is “time barred” and may be dismissed as having been filed too late.


When the defendant attorney alleges in his Answer to the law suit that the action is barred by the Statute of Limitations, it is essential to deal with the issue as soon as practicably possible. One effective way is to make a motion to the trial judge to “strike” (or dismiss) the Affirmative Defense from the Answer. Civil Practice Law and Rules [CPLR] Section 3211(b) provides that a party may move to strike an affirmative defense.

Affirmative Defense – Statute of Limitations:

In a recent case, the defendant law firm asserted the Affirmative Defense that the legal malpractice action was barred by the applicable statute of limitations. In response, Richard A. Klass, Your Court Street Lawyer, brought a motion to dismiss the Affirmative Defense. The motion requested that this affirmative defense be stricken, since it was alleged that the plaintiff-injured person brought the action within the applicable three-year statute of limitations period, as specified in CPLR 214(6).


CPLR 214(6) provides that “an action to recover damages for malpractice, other than medical, dental or podiatric malpractice, regardless of whether the underlying theory is based in contract or tort” must be commenced within 3 years.


The cause of action for malpractice accrues at the time of the act, error or omission. See, Julian v. Carrol, 270 AD2d 457 [2d Dept. 2000]; Goicoechea v. Law Offices of Stephen Kihl, 234 AD2d 507 [2d Dept. 1996]; Shumsky v. Eisenstein, 96 NY2d 164 [2001].


In the recent case, the allegation of legal malpractice against the defendant law firm was that there was a ‘blown’ statute of limitations because the law firm did not timely sue the potentially liable party. In that situation, the New York State Court of Appeals (New York’s highest court) has held that a cause of action for legal malpractice accrues against the attorney when the statute of limitations expires on the underlying action for which the attorney was retained. See, Shumsky v. Eisenstein, supra. In Burgess v. Long Island Railroad Authority, 79 NY2d 777 [1991], the Court of Appeals held:

A person has one year from the date a claim accrues to commence an action against a public authority such as LIRR (Public Authorities Law §1276(2). The complaint must contain an allegation that at least 30 days have elapsed since the authority was presented with a demand or claim and that the authority has neglected or refused to adjust or pay the claim. This “stay” of 30 days is not counted as part of the limitations period and the plaintiff therefore may serve a complaint at any time up to one year and 30 days after the claim has accrued.

In the case, the plaintiff’s incident was alleged to have occurred on June 4, 2003. According to Public Authorities Law §1276, an action would have to have been brought against the LIRR within one year and thirty days after the incident. The defendant law firm was alleged to have failed to timely do so and the time in which to do so passed on their ‘watch.’

The Continuous Representation Toll:

The accrual of the three-year statute of limitations is ‘tolled’ during the period of the lawyer’s continuous representation in the same matter out of which the malpractice arose under the theory that the client should not be expected to question the lawyer’s advice while he is still representing the client. See, Lamellen v. Kupplungbau GmbH v. Lerner, 166 AD2d 505 [2d Dept. 1990]; Shumsky v. Eisenstein, supra. Under the continuous representation doctrine, there must be clear indicia of an ongoing, continuous, developing, and dependent relationship between the client and the lawyer. See, Kanter v. Pieri, 11 AD3d 912 [4 Dept. 2004]; Lamellen v. Kupplungbau GmbH v. Lerner, supra; Clark v. Jacobsen, 202 AD2d 466 [2 Dept. 1994].


In the case, the defendant law firm was alleged to have continuously represented the injured plaintiff up until August 2007, as represented by the proceedings brought on his behalf and the correspondence between the parties. Accordingly, the Statute of Limitations in which to sue the defendant law firm for legal malpractice for having missed the opportunity to have sued the proper party for the incident that resulted in the client’s injury started ticking when the law firm no longer represented him.

Copyright 2010
Richard A. Klass, Esq.

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License Information

Striking the Affirmative Defense of Statute of Limitations in a Legal Malpractice Action by Richard A. Klass, Esq. is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 United States License. For permissions beyond the scope of this license, please contact Mr. Klass (email: RichKlass@CourtStreetLaw.com). Insert the words "reprint permission request" in the subject line of the email.

Publishing Guidelines

Permission is granted to publish this article electronically in free-only publications, like a website or ezine (print and non-free publications require permission) as long as the resource box is included without any modifications. All links must be active. A courtesy copy is requested on publication (email: RichKlass@CourtStreetLaw.com).


Article Title:Striking the Affirmative Defense of Statute of Limitations in a Legal Malpractice Action


Article URL:http://courtstreetlaw.com/articles/legal-malpractice-articles/Affirmative_Defense-legal-malpractice.html


Author Name:Richard A. Klass, Esq.


Contact Email Address:RichKlass@CourtStreetLaw.com


Author's Firm's Website:www.CourtStreetLaw.com


Word Count:826 words

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[This resource box must be included in any publications.]

* * *

Resource Box

About the Author:
Richard A. Klass, Esq. maintains a law firm engaged in civil litigation at 16 Court Street, 29th Floor, Brooklyn Heights, New York. He may be reached by phone at (718) COURT-ST [(718) 268-7878)] or RichKlass@courtstreetlaw.com with any questions. Prior results do not guarantee a similar outcome.


Read the original article in context at:
http://courtstreetlaw.com/articles/legal-malpractice-articles/Affirmative_Defense-legal-malpractice.html
Additional articles by Mr. Klass may be found at: http://courtstreetlaw.com/articles/index.html.
Back issues from Mr. Klass' quarterly newsletter, Law CURRENTS are available at http://courtstreetlaw.com/newsletters/index.html.
Articles from Law CURRENTS may be available for reprint. Please see individual articles for license information.

* * *

---

Contact me if you have questions.


Sincerely yours,
Richard A. Klass, Esq.
Your Court Street Lawyer
-----------
copyr. 2011 Richard A. Klass, Esq.
The firm's website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation at 16 Court Street, 29th Floor, Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-mail to richklass@courtstreetlaw.com with any questions.
Prior results do not guarantee a similar outcome.

The Harsh Rule of the Statute of Limitations in Legal Malpractice Cases

The term “statute of limitations” refers to the period of time in which a plaintiff may bring a lawsuit against a defendant for a claim. Different types of cases are governed by different statute of limitations period (for instance, six years for contract actions in New York, three years for tort actions in New York). The effect of the statute of limitations is that a plaintiff bringing a lawsuit after that period of time has expired is barred from bringing it, and the lawsuit will be dismissed as untimely.


In New York, the statute of limitations for legal malpractice cases is three years from the date of malpractice. This means that a plaintiff-client bringing a lawsuit for legal malpractice against a defendant-attorney must file the lawsuit within three years of the date of legal malpractice by the defendant-attorney; if not, then the lawsuit may be dismissed as untimely. There are some “tolls” of the statute of limitations, which may extend the period of time in which a lawsuit may be filed (e.g. continued representation of the client by the attorney post-malpractice).


In a case decided by New York’s Appellate Division, Second Department, Frost Line Refrigeration, Inc. v. Gastwirth, Mirsky & Stein LLP, 806 NYS2d 436 (2006), the court held that the three-year statute of limitations period for the legal malpractice case started running from the date that the plaintiff-client signed a Consent to Change Attorney form with the defendant-client. By signing that form (which indicates that a client no longer wants the attorney to act as its counsel), the attorney-client relationship terminated and the clock began ticking on the potential legal malpractice claim. As the lawsuit was filed after the three-year period, the plaintiff-client was time-barred from commencing the legal malpractice case and it was dismissed.


Therefore, it is very important to be vigilant in pursuing all potential legal remedies as soon as possible in order to preserve any rights, including the right to file a legal malpractice case; otherwise, it may be too late to file a legal malpractice case.

Copyright 2006 and 2011
Richard A. Klass, Esq.

---

License Information

The Harsh Rule of the Statute of Limitations in Legal Malpractice Cases by Richard A. Klass, Esq. is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 United States License. For permissions beyond the scope of this license, please contact Mr. Klass (email: RichKlass@CourtStreetLaw.com). Insert the words "reprint permission request" in the subject line of the email.

Publishing Guidelines

Permission is granted to publish this article electronically in free-only publications, like a website or ezine (print and non-free publications require permission) as long as the resource box is included without any modifications. All links must be active. A courtesy copy is requested on publication (email: RichKlass@CourtStreetLaw.com).


Article Title:The Harsh Rule of the Statute of Limitations in Legal Malpractice Cases


Article URL:http://courtstreetlaw.com/articles/legal-malpractice-articles/statute-of-limitations-legal-malpractice.html


Author Name:Richard A. Klass, Esq.


Contact Email Address:RichKlass@CourtStreetLaw.com


Author's Firm's Website:www.CourtStreetLaw.com


Word Count:341 words

---

[This resource box must be included in any publications.]

* * *

Resource Box

About the Author:
Richard A. Klass, Esq. maintains a law firm engaged in civil litigation at 16 Court Street, 29th Floor, Brooklyn Heights, New York. He may be reached by phone at (718) COURT-ST [(718) 268-7878)] or RichKlass@courtstreetlaw.com with any questions. Prior results do not guarantee a similar outcome.


Read the original article in context at:
http://courtstreetlaw.com/articles/legal-malpractice-articles/statute-of-limitations-legal-malpractice.html
Additional articles by Mr. Klass may be found at: http://courtstreetlaw.com/articles/index.html.
Back issues from Mr. Klass' quarterly newsletter, Law CURRENTS are available at http://courtstreetlaw.com/newsletters/index.html.

Articles from Law CURRENTS may be available for reprint. Please see individual articles for license information.

* * *

---

Contact me if you have questions.


Sincerely yours,
Richard A. Klass, Esq.
Your Court Street Lawyer
-----------
copyr. 2011 Richard A. Klass, Esq.
The firm's website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation at 16 Court Street, 29th Floor, Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-mail to richklass@courtstreetlaw.com with any questions.
Prior results do not guarantee a similar outcome.

The Basic Elements of a Legal Malpractice Case

In every type of lawsuit, a plaintiff (commonly known as the person bringing the case) must make certain allegations of fact against a defendant (the party being sued) and tie those allegations of fact to violations of specific laws or rules. Those violations could be based upon a particular statute or rule or section of law, or common law generally (some times the two overlap as well). If the plaintiff cannot prove that the defendant committed an “actionable” wrong, then the lawsuit will be dismissed by the court – either because there is a failure of proof or because the allegations of proof do not amount to a violation of law as interpreted by the court.


When a plaintiff brings an action against a lawyer for legal malpractice, the plaintiff must prove several basic “elements” of the cause of action for legal malpractice in order to prevail. Generally, the first requirement is that the party suing for legal malpractice show that he was the former client of the defendant, who is a lawyer. (It is important to point out that there are some cases which expand the definition of a client or extend liability to non-clients of the lawyer for purposes of legal malpractice claims).


A plaintiff in a legal malpractice case (the client of an attorney) must prove that:


a) the defendant-attorney failed to exercise the care, skill, and diligence commonly possessed and exercised by a member of the legal profession;


b) the defendant-attorney’s negligence was a proximate cause of the loss sustained by the plaintiff-client;


c) the plaintiff-client incurred actual damages as a result of the defendant-attorney’s actions or inaction; and


d) “but for” the defendant-attorney’s negligence, the plaintiff-client would have prevailed in the underlying action or would not have sustained any damages.


See, Opinion of the New York State Court of Appeals in Arnav Industries Inc. v. Brown, Raysman, Millstein, Felder & Steiner, 96 NY2d 300.


For a defendant-attorney in a legal malpractice case to succeed on a motion for summary judgment seeking to dismiss the cause of action for legal malpractice, evidence must be presented to the court on the motion which establishes that the plaintiff-client is unable to prove at least one of the essential elements of the legal malpractice case.


See, Opinion of the Appellate Division in Crawford v. McBride, 303 AD2d 442.

Copyright 2006 and 2011 Richard A. Klass, Esq.
"Your Court Street Lawyer"

---

License Information

The Basic Elements of a Legal Malpractice Case by Richard A. Klass, Esq. is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 United States License. For permissions beyond the scope of this license, please contact Mr. Klass (email: RichKlass@CourtStreetLaw.com). Insert the words "reprint permission request" in the subject line of the email.

Publishing Guidelines

Permission is granted to publish this article electronically in free-only publications, like a website or ezine (print and non-free publications require permission) as long as the resource box is included without any modifications. All links must be active. A courtesy copy is requested on publication (email: RichKlass@CourtStreetLaw.com).


Article Title:The Basic Elements of a Legal Malpractice Case


Article URL:http://courtstreetlaw.com/articles/legal-malpractice-articles/basic-elements-legal-malpractice-case.html


Author Name:Richard A. Klass, Esq.


Contact Email Address:RichKlass@CourtStreetLaw.com


Author's Firm's Website:www.CourtStreetLaw.com


Word Count:388 words

---

[This resource box must be included in any publications.]

* * *

Resource Box

About the Author:Richard A. Klass, Esq. maintains a law firm engaged in civil litigation at 16 Court Street, 29th Floor, Brooklyn Heights, New York. He may be reached by phone at (718) COURT-ST [(718) 268-7878)] or RichKlass@courtstreetlaw.com with any questions. Prior results do not guarantee a similar outcome.


Read the original article in context at:http://courtstreetlaw.com/articles/legal-malpractice-articles/basic-elements-legal-malpractice-case.html
Additional articles by Mr. Klass may be found at: http://courtstreetlaw.com/articles/index.html.
Back issues from Mr. Klass' quarterly newsletter, Law CURRENTS are available at http://courtstreetlaw.com/newsletters/index.html.

Articles from Law CURRENTS may be available for reprint. Please see individual articles for license information.

---

Contact me if you have questions.


Sincerely yours,
Richard A. Klass, Esq.
Your Court Street Lawyer
-----------
copyr. 2011 Richard A. Klass, Esq.
The firm's website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation at 16 Court Street, 29th Floor, Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-mail to richklass@courtstreetlaw.com with any questions.
Prior results do not guarantee a similar outcome.

The Wrong Side of the Tracks Costs Law Firm $800,000

The Long Island Railroad (LIRR) leased one of its old rail yards in Queens to a recycling company. One of the recycling company’s employees was working the late shift on a rainy evening in 2003. That rainy night, he was assigned the task of welding on a portion of the metal fence surrounding the yard with an acetylene torch. He got up on a ladder, climbed up several rungs, and started to weld. At that point, the injured worker got a shock from the welding equipment. The ladder then shifted in the mud and he fell to the ground, suffering severe injuries. Since that incident, he was unable to work, having become disabled, and having had several surgeries to his back and knee.

The injured worker hired a law firm to bring a personal injury claim against the owner of the yard under New York’s Labor Law Section 240 known as the “Scaffolding Law.” That law firm brought a petition to file notices of claim against the MTA (Metropolitan Transportation Authority) and the LIRR. The Supreme Court Justice dismissed the petition, indicating in his decision that, as to the MTA, the reason for the late notice of claim was not meritorious and, as to the LIRR, no notice of claim was needed and that the law firm merely needed to timely commence a lawsuit under New York’s Public Authority Law. Needless to say, the time within which the injured worker needed to commence the lawsuit against the LIRR had already passed by the time of that decision. The injured worker retained Richard A. Klass, Your Court Street Lawyer to sue the personal injury law firm for legal malpractice.



Time-barred by the Statute of Limitations:

The concept of a “Statute of Limitations” is that people are afforded a certain amount of time to take action concerning a legal claim they may have; if that period of time passes without taking action, then the ability to pursue the legal claim has been waived. Most people are familiar, for instance, that in New York State the statute of limitations period within which to file most personal injury cases is three years from the date of accident. In this particular case, though, the Statute of Limitations period within which to sue the potentially liable parties was shorter (to a period of one year and thirty days) because the personal injury claim was against the LIRR, a governmental authority under a special statute.

Once the judge had dismissed the injured worker’s lawsuit, thus leaving him without recourse to recover monetary damages for his injuries, the law firm was exposed to the legal malpractice claim brought against it because it was alleged to have “blown” the statute of limitations by neglecting to timely file the lawsuit against the LIRR.

In legal malpractice cases, the statute of limitations in which to sue an attorney is three years from the date of malpractice under New York’s CPLR Section 214(6). Since many times in litigation, attorneys who have committed malpractice continue representing their clients for months or years afterward, there is also a concept of “continuous representation.” This means that the statute of limitations “clock” does not start to tick until the attorney has stopped representing the client in the matter.



Proving the underlying case under Labor Law Section 240:

A legal malpractice case is a very difficult type of litigation for one particular reason: Assuming that the lawyer ‘screwed up’ as much as possible, doing everything as wrong as could be done or failing to do any of the right things, it still might not matter — the ultimate question for purposes of liability for legal malpractice will be whether there was any merit to the underlying case that the lawyer was hired to handle. Rephrased: Would the client have won “but for” his lawyer?!

New York’s Scaffolding Law provides that owners of real estate, such as the LIRR, are “strictly liable” for injuries suffered by workers who fall from a ladder or scaffold under almost all circumstances, with limited exceptions, such as if there was a lack of adequate safety devices. This basically means that the landowner is responsible to pay for all of the worker’s damages for his injuries, including medical bills, lost wages, and pain and suffering. An exception to holding the landowner strictly liable under the Scaffolding Law is where the injured worker is found to have been the “sole proximate cause” of his injuries. In this case, the law firm being sued for legal malpractice argued that, in the event the LIRR had been sued, the injured worker would not have prevailed anyway because this exception to the Scaffolding Law would have applied because he knew not to weld in the rain. In response, the injured worker claimed that his employer at the yard instructed him to weld in the rain and that he was not going to be insubordinate.

Separate and apart from the Scaffolding Law issue, the law firm argued that there was no proof of exactly where the fall occurred to establish that it happened on the LIRR’s property. In response, a surveyor was retained to survey the area surrounding the old rail (now recycling) yard, and Deeds dating back to the 1800s were obtained. These documents were produced to establish the legal ownership of the location where the fall took place. This was a necessary element of the case in order to prove that the LIRR would have been liable for injuries to workers on its property under the Scaffolding Law.

The legal malpractice case came up for a pre-trial conference. Attorneys Richard A. Klass and Stefano A. Filippazzo appeared at the conference on behalf of the injured worker. The law firm being sued for legal malpractice finally settled with the injured worker for $800,000 to settle the action and pay for his injuries and extensive medical lien.




Contact me if you have questions.

Sincerely yours,
Richard A. Klass, Esq.
Your Court Street Lawyer

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Art credits: page one, Hjørring - Hirtshals Line in Northern Denmark. Photograph by Tomasz Sienicki, 2003.

copyr. 2011 Richard A. Klass, Esq.
The firm's website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation at 16 Court Street, 29th Floor, Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-mail to richklass@courtstreetlaw.com with any questions.
Prior results do not guarantee a similar outcome.