Weekly Attorney Malpractice Update 12/13/07
Posted: December 13th, 2007
By: Andrew Bluestone, Esq.
Category: Attorney Malpractice, SHOWCASE CORNER, The News Beat

LEGAL MALPRACTICE CASES IN
FEDERAL COURT THIS MONTH

1. WESTPORT INSURANCE CORP. v. GOLDBERGER & DUBLIN, P.C.
United States Court of Appeals for the Second Circuit   2007 US App Lexis 27612

Law firm was sued by former clients, and insurance company disclaimed coverage because law firm did not give reasonable notice of potential suit.  Law firm defended by arguing that it had no basis to expect a suit by its client, who had assured them that she did not intend to sue.  She, however, did.  Court noted that no court in New York “has addressed the question” of the objective inquiry into a client’s assurances “in deciding what an attorney in the insured’s position could reasonably have foreseen.”

2. SMARTIX INTERNATIONAL LLC  v. GARRUBBO, ROMANKOW & CAPESE PC, United States District Court for the Southern District of New York, 2007 US Dist Lexis 85807

Discussion of post-end of discovery subpoenas, as well as whether non-party subpoenas are permissible in what might be called a fishing expedition.  These personal records are “not relevant to the claim or defense of any party.”

3. KING v. FOX
United States District Court for the Southern District of New York, 2007 US Dist Lexis 85396

This case has “occupied this court, the magistrate judge, the Court of Appeals on two occasions and the New York Court of Appeals over the past ten years.  Presently at issue is Fox’s motion to strike King’s demand for a jury trial.”

Judge Sweet discusses the equitable/law nature of the legal malpractice claims, and gives a short historical tour of the right to a jury trial.”

4. BRITESTARR HOMES INC. v. PIPER RUDNICK LLP
United States Court of Appeals for the Second Circuit   2007 US App Lexis 27935

Piper Rudnick wins motion for summary judgment, finding that client “failed to establish the required proof of damages for any of its claims.”  “In particular, as to the difference between the value of the client’s property in bankruptcy and outside of bankruptcy, the client failed to show that any damage to the property was” the result of the bankruptcy proceeding. 

THIS WEEK’S NEWS IN LEGAL MALPRACTICE

Shocking incivility in a deposition?  Gender sarcasm during an EBT?  Older attorney condescending to a younger attorney?  Is this uncommon, or more nearly the norm in New York?

Anthony Lin of the New York Law Journal reported a Justice Edmead decision in which she castigated the male attorney for speaking uncivilly and with gender bias to the female attorney, calling her “hon” and “girl.”  The attorney strongly denied using those words. He asked her why she was not wearing a wedding ring, and commented on her having a “cute thing going on.”   This brings up the errata sheet theory of deposition testimony.  He says that he was using the term “Hun” [as in Attila] which might have been complementary. 

An interesting sideline to this story is that the female attorney was taking the deposition and had the only copy of the transcript, which she did not supply to the accused male attorney.  How was he to defend?

Moral?  What you are saying is being taken down.

Legal malpractice accusations are reaching billboards and the internet, and may prove to be more irksome there, and certainly more long-lived.  A former client of Damon & Morey LLP has taken out a billboard to complain about them, and has used the internet to post the story.  While a lawsuit may bring damages, the billboard certainly reaches a bigger audience and the internet posting will be there forever.

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Comments
When it comes to the first point. I completely agree with the lawfirm. If they had no way of knowing that the client was going to sue, then they could not have notified the insurance company.
Comment By: Henry Simms - December 17, 2007