Thursday Attorney Malpractice Update 1/24/08
Posted: January 24th, 2008
By: Andrew Bluestone, Esq.
Category: Attorney Malpractice, The News Beat

MITIGATION IN LEGAL MALPRACTICE

A blackletter rule of law is that plaintiffs are required to mitigate their damages to the extent reasonably possible.  This two-decision set of cases illustrates permutations in legal malpractice. First, Minchew, Santner & Brenner, LLP v Somoza (2008 NY Slip Op 50112(U)). Ultimately, when an attorney is retained to prosecute a legal malpractice case he is not required to try to fix the underlying action which led to the legal malpractice case.  This is different from a situation in which the new attorney is a successor to the predecessor, and must of course try to fix things.

Here, plaintiff hired attorney A to bring an action in the NY Court of Claims.  Attorney A is alleged to have failed timely to file the notice of claim.  Plaintiff hired attorney B, the Minchew firm, to sue attorney A.  A most important fact is that while the notice of claim was not timely filed, the statute of limitations has not yet passed, and plaintiff may still file a motion seeking leave to file a late notice of claim.  No one has moved for leave.

Attorney A, who is now a legal malpractice defendant, asks the Minchew firm to mitigate damages by filing a motion seeking leave to file a late notice of claim.  The do not, and will not.  So Attorney A third-parties the Minchew firm into the case.  This sets the stage for mayhem.

The Minchew firm then sues the insurance defense attorneys who brought the third-party action.  Justice McMahon writes this decision: “As a result, all causes of action alleged by the plaintiff in their complaint are dismissed. All other requested relief is denied or academic. Finally, this Court will again strongly urge the attorneys involved in these matters to cooperate and set aside these vindictive and unnecessary actions in an effort to resolve  [**9]  this case.”

The companion case is Cacho v Law Offs. of Louis Venezia (2008 NY Slip Op 50111(U)).  This part of the case deals with the Minchew law firms motion to dismiss the third-party action.  Here, the judge deals with the law firm’s obligation to mitigate damages:
“With respect to the motion at hand, generally, where a law firm is retained for the limited and express purpose of representing a client in a legal malpractice action, they do not have a duty to prosecute the underlying claim, if one still lies (see Northrop v. Thorsen, ___ AD3d ___, [2d Dept., Dec. 18, 2007][finding that an attorney retained "in a separate matter, before a separate tribunal, and for a different purpose" does not require him to mitigate damages in the underlying claims); Johnson v. Berger, 193 AD2d 784, 786 [2d Dept., 1993][holding that a law firm's failure to preserve an estate's assets, when retained for the limited purpose of prosecuting a legal malpractice action "did not contribute to or aggravate the plaintiffs' damages arising from the former attorneys' alleged legal malpractice]"
Here, third-party defendant's have established entitlement to judgment in accordance with CPLR § 3211(a)(1) and (a)(7). The retainer agreement is clear and specific, detailing that the representation by the third-party defendants is for "damages arising from personal injuries sustained by Eugene Cacho as a result of legal malpractice." Further, the cases cited by the defendant/third-party plaintiff's are distinguishable from the instant matter in that here, the third-party defendant Minchew was not hired as successor counsel to prosecute the personal injury claim, but rather on a different matter, in front of a different Judge and for a different purpose (Northrop v. Thorsen, ___ AD3d ___ [2d Dept., Dec. 18, 2007]). As a result, defendant Minchew is under no obligation to file a late notice of claim and therefore, dismissal of the third-party complaint is warranted (see CPLR § 3211 [a][1],[a][7]; Northrop v. Thorsen,”

NEWS IN LEGAL MALPRACTICE THIS WEEK

Adrift and pro-se in Federal District Court is a lonely place to be.  Any attorney who has practiced in State and Federal Courts knows the differences between them.  This week brings a case in which both sides of a legal malpractice-fiduciary breach case are pro-se. DANIEL KIRK and LINDA KIRK, v. JOSEPH M. HEPPT, ESQ., 05 Civ. 9977 (RWS),UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, 2008 U.S. Dist. LEXIS 3805 is an illustration of how things can go wrong there.

Plaintiff’s causes of action are dissected, and for the most part are found wanting.  Defendant’s counterclaims are, for the most part, gutted.  No one walks away from this case intact.
 
“The Kirks initiated this action against Heppt, Daniel's former lawyer, on November 28, 2005. The complaint alleged breach of contract, fraudulent misrepresentation, breach of fiduciary duties, mail fraud, and violation of N.Y. General Business Law § 349 arising  [*2] out of the representation by Heppt of Daniel in an action brought on behalf of Daniel against Daniel's former employer (Compl. P 1). The Honorable Sidney H. Stein dismissed Daniel's action on August 31, 2004. Kirk v. Schindler Elevator Corp., No. 03 Civ. 8688 (SHS), 2004 WL 1933584 (S.D.N.Y. Aug. 31, 2004). The Kirks' motion to amend their Complaint in the instant action pursuant to Fed. R. Civ. P. 15(a) was denied by this Court on March 20, 2006. Kirk v. Heppt, 423 F. Supp. 2d 147, 151 (2006).

Plaintiff’s fraud claims are dismissed, plaintiff’s NY General Business Law § 349 Cause of Action are Dismissed, The Claim for Breach of Fiduciary Duty is Dismissed in Part, The Treble Damages Claim Under Judiciary Law § 487 Is Dismissed and on defendant’s side, the defamation claims are dismissed.

For more information visit the New York Attorney Malpractice Blog.

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