THIS WEEK’S LEGAL MALPRACTICE CASES

Recusal, Political Donations and Legal Malpractice

During the campaign season, news reports ouline the amounts of money individuals donate to candidates, and there are websites which track donations by name.  Recently in West Virginia, a legal malpractice case involving the Massey Coal company there made news when the US Supreme Court decided to hear the question of whether campaign contributions required recusal of a State Supreme Court justice.

Here, different state, same issue. Debra Cassens Weiss reports in the ABA Journal. "A motion filed in a legal malpractice appeal contends that four of Illinois’ seven Supreme Court justices should recuse themselves because of campaign contributions by the defendant law firm, Corboy & Demetrio.

If the motion is granted, the court would not have enough votes to issue an official ruling, the Chicago Sun-Times reports. The Illinois Constitution has no provision for temporary judicial appointments.
The motion says Corboy & Demetrio has made donations ranging from $1,500 to $52,000 to campaigns of the four justices, according to the Sun-Times.""The underlying malpractice suit resulted in a $100,000 judgment against Corboy & Demetrio, the story says. The suit contends the well-known plaintiffs firm botched a suit filed on behalf of a Georgia woman killed in a 1995 car crash. The suit names former Corboy lawyer G. Grant Dixon III and managing partner Robert Bingle, the story says. The firm has admitted the suit was dismissed because it failed to follow a court order, but denies other allegations, according to the Sun-Times."

Plaintiff's Partial Success does not Rule out Legal Malpractice Case

Plaintiff claimed pay and benefits from the Board of Education.  Apparently there is a two part process for such claims.  The first thing to do is to request a hearing.  Later, one may bring an Article 78 proceeding.

In Leticia Abreu v Jose A. Quesada,4489, 6884/05; SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT; 2008 NY Slip Op 8420; 866 N.Y.S.2d 571; 2008 N.Y. App. Div. LEXIS 8251  Defendant attorneys failed to serve notice for a hearing.  "The record contains no dispute that defendant failed to file a proper request for a hearing pursuant to Education Law 3020-a(2)(c) and that this failure resulted in the loss to plaintiff of pay and benefits to which she otherwise would have been entitled, pending a hearing, before termination"

Plaintiff then started an Article 78 proceeding, with some success.  This success did not rule out a legal malpractice case against the attorneys who did not notice the hearing.  "The partial grant of plaintiff's article 78 petition against the Board of Education does not collaterally estop plaintiff from asserting defendant's legal malpractice (see Weiss v Manfredi, 83 NY2d 974, 976-977, 639 N.E.2d 1122, 616 N.Y.S.2d 325 [1994]; Savattere v Subin Assocs., 261 AD2d 236, 236, 690 N.Y.S.2d 229 [1999])."
 
Appellate Legal Malpractice

In STEPHEN F. BRUMMER, , v THE BARNES FIRM, P.C., CELLINO & BARNES, P.C., STEPHEN E. BARNES, ROSS M. CELLINO, AND RICHARD J. BARNES, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT;2008 NY Slip Op 8831; 2008 N.Y. App. Div. LEXIS 8924 we see a discussion of legal malpractice cases centering on a failed appeal.  The rules are fundamentally different for legal malpractice cases centering on appeals and those centering on the underlying case.  One thing that is not mentioned by the court is that it remains a question of law and not a question of fact whether an appeal would succeed. Experts may not opine and no jury will be asked to answer this question; only the judge will answer it.

Here, plaintiffs were defendants in the underlying case, and they sue their attorney for a failed appeal.  "Plaintiff commenced this action alleging that defendants committed legal malpractice by failing to take an appeal from an order granting the cross motion of the Town of Tonawanda (Town) for summary judgment dismissing the complaint against it in plaintiff's underlying Labor Law action. We conclude that Supreme Court properly granted defendants' motion for summary judgment dismissing the complaint in this legal malpractice action. ""Plaintiff failed to raise a triable issue of fact inasmuch as he "did not set forth the requisite factual allegations demonstrating that, but for defendants' alleged negligence, there would have been a more favorable outcome in the underlying action" (Ellsworth v Foley, 24 AD3d 1239, lv denied 6 NY3d 712; see generally Williams v Kublick, 302 AD2d 961), i.e., he failed to raise an issue of fact whether he would have prevailed on an appeal with respect to the dismissal of the complaint in the underlying action against the Town (see Lagana v Willner, 267 AD2d 210; see also Senise v Mackasek, 227 AD2d 184, 185). Indeed, the record establishes that the Town was not liable under the Labor Law because it was not the owner of the property where plaintiff was working, nor was it an agent of the owner because it did [**3] not have the authority to supervise and control the work.