Thursday Attorney Malpractice Update 1/17/08
Posted: January 17th, 2008
By: Andrew Bluestone, Esq.
Category: Attorney Malpractice, The News Beat

CASES THIS WEEK IN LEGAL MALPRACTICE

CHICAGO TITLE INSURANCE COMPANY, Plaintiff, v BARBARA J. MAZULA, Defendant and Third-Party Plaintiff-Appellant; JAMES E. KEABLE, Third-Party Defendant-Respondent.

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT
2008 NY Slip Op 27
January 3, 2008

This is a case in which the question becomes whether an individual or an estate hired the attorney. In order for plaintiff to prevail, the court must determine that the estate hired the attorney, and each of the mistakes took place while the attorney represented the estate, not the individual. 

“Defendant argues that the toll applies because the sale of the property was not an isolated transaction, but an estate matter during which Keable continued [**4] to represent defendant's husband's estate long after the malpractice accrued. We disagree. The first deed attempted to convey what was believed to be the estate's interest in the property whereas the second deed conveyed defendant's personal interest. Regardless of how the first deed was executed, defendant, as a surviving tenant by the entirety, solely conveyed her personal interest (see Matter of Mischler, 30 AD3d 859, 860, 819 N.Y.S.2d 118 [2006]). Hence, as to both deeds, Supreme Court correctly determined that Keable was always acting for defendant in her individual capacity, not in her capacity as the executor of her husband's estate 2. Since Keable performed no further work for [*3] defendant, either personally or in her capacity as executor of the estate after January 2000 in regard to this transaction, the commencement of this third-party action for legal malpractice was not timely.”

Gerald Goldman, et al., Plaintiffs-Appellants, v Akin Gump Strauss Hauer & Feld, LLP, et al., Defendants-Respondents. 

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT 

2007 NY Slip Op 10492
December 27, 2007

In many legal malpractice cases, we find that the attorneys played several roles. Sometimes, they start as transactional attorneys, and morph into litigation attorneys. 

Here the “documentary evidence [that] effectively precludes plaintiffs from arguing that defendants' representation in the arbitrations was continuous with their representation in the sale. Such documentary evidence consists of the affidavit submitted by plaintiffs in a prior litigation that involved an unsuccessful attempt by a limited partner to disqualify defendants from representing plaintiffs in one of the arbitrations. Therein, one of the plaintiffs stated that while defendants were retained to advise plaintiffs and, if need be, serve as their litigation counsel, in connection with litigation then being threatened by the limited partners, as to the sale itself, defendants were retained only to draw the documents necessary to consummate a deal that had already been negotiated and agreed to. Holding plaintiffs to this position (see D & L Holdings v Goldman Co., 287 AD2d 65, 71-72, 734 N.Y.S.2d 25 [2001], lv denied 97 NY2d 611, 742 N.Y.S.2d 604, 769 N.E.2d 351 [2002]), defendants' [**3] representation in the arbitrations, which involved the merits of the litigation that was being threatened by the limited partners at the time plaintiffs retained [*2] defendants, was distinct from their representation in "papering" the sale, which did not involve negotiating the terms of the sale or advising whether or not to proceed with it.”

WHEN IS AN EXPERT NOT NECESSARY?

There are many formulations set forth describing when an expert is necessary or not, in legal malpractice.  “Expert testimony is normally needed to establish that an attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, unless the ordinary experience of the fact-finder provides sufficient basis for judging the adequacy of the professional service, or the attorney’s conduct falls below any standard of due care.”

This quote, from Northrop v. Thorsen, 2007 Slip Op 10125 [2d Dept, 2007] described a not uncommon mistake.  Attorney represents plaintiff in a personal injury action, and, in effect, settles the case without the consent of the Worker’s Compensation Carrier.  Here, he agreed to binding arbitration, and when advised of the error, failed to rectify the problem.

Here in a case of not leaving well enough alone, the attorney made a motion for summary judgment, and instead, the court granted summary judgment to the plaintiff.

This case is interesting on two other points.  By persevering, plaintiff won the case even after he was precluded from offering expert testimony!

The second interesting point is that the attorney tried to plead comparative fault or “failure to mitigate damages” by arguing that plaintiff himself could have moved for a nunc pro tunc order.  The court responded: “The defendant, however, may not shift to the client the legal responsibility [he] was specifically hired to undertake because of his superior knowledge.”

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