Weekly Attorney Malpractice Update
Posted: November 15th, 2007
By: Andrew Bluestone, Esq.
Category: Attorney Malpractice, The News Beat

Cases This Week in Legal Malpractice

1.  GML v. Cinque, 2007 NY Slip Op 7912, Court of Appeals Question of Tennessee or NY statute of limitations in a legal malpractice case.  CPLR 202 did not allow the Tennessee statute to toll the claim.  Borrowing a sister state’s statute of limitations is the province of “choice of law” which is a rather esoteric law school subject.  For our purposes, which state’s law should be applied depends, mostly, on where the action is brought.

2.  Maxon v. Woods, 2007 Slip Op 8614 [4th Dept., 11/9/07].  Plaintiff asked to disqualify defendant law firm from representing a non-party witness.  Sup. Ct. held that the witness had a right to select his own attorney.

3.  TVGA Engineering PC v. Gallick, 2007 Slip Op 8491 [4th Dept,11/9/07]. Plaintiff sues law firm for “providing legal advice to a third party that conflicted with and was detrimental to plaintiffs.”  Court discusses difference between legal malpractice tort [more restricted] and legal malpractice breach of contract [less restricted], and how they play out with regard to current and formed clients.  “A cause of action for breach of fiduciary duty of an attorney extends to both current and former clients, and thus is broader in scope than a cause of action for legal malpractice.”

4.  Federal Ins. Co v. North Am. Specialty Ins. Co., 2007 Slip Op 8391.   Appellate Division reverses and determines that there is no privity between re-insurer and law firm defending underlying construction accident.  Good discussion of the relationship between trial counsel and insurers/re-insurers.

5.  Cooper v. Kelner & Kelner, 2007 Slip Op 8381.  Attorneys demonstrated that there was no “but for” aspect to the case.  They sued Carnival Cruise Lines for a trip and fall over loose carpet.  This was, the AD said, mere speculation, and when the underlying case failed, it was not legal malpractice.

News this Week in Legal Malpractice

The attorney judgment rule generally allows lawyers a wide range of decision making power.  The general rule is that an attorney may not be held liable for a strategic decision which was objectively and subjectively reasonable.  This does not mean that the decision had to be correct, merely reasonable.

In a Michigan case, Bowman v.Gruel Mills Nims & Pylman, 2007 WL 1203580 (W.D.Mich, 2007] the court discussed this general principal, adding that when the attorney violates ethical rules, his defense is no longer good.  The ethical violation was failing to inform the client of events.

A legal malpractice case against Kaye Scholer was dismissed.  With an all Long Island case of attorneys, Kaye Scholer correctly contended that they were never retained by the plaintiffs, and had no attorney-client relationship with them - Case dismissed.

Finally, in New York a family tragedy - One brother is a partner, the other brother now a criminal defendant.  The accusation is that one brother stole large sums from the escrow funds by forgery.  In this case, he created false bank statements, and over the years, brought these art duplications to firm meetings, fooling everyone.  Now, he awaits trial, and the partner-brother looks for an explanation.  The law firm is Galasso Langione & Botter.

For more on legal malpractice check out the New York Attorney Malpractice Blog.

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