Insanity and Legal Malpractice

Is an attorney required to perform more work that set forth in a retainer agreement?  If the attorney does not perform more work, will the statute of limitations be tolled by the client's insanity?  These two questions are partially answered in Turner v Irving Finkelstein & Meirowitz, LLP ;2009 NY Slip Op 03158 ;Decided on April 21, 2009 ;Appellate Division, Second Department .

 "The plaintiff allegedly was assaulted by a coworker at his place of employment in 1997. The defendant law firm represented the plaintiff in the ensuing claim before the Workers' Compensation Board (hereinafter the Board). The claim was disallowed, the Board affirmed that decision, and full Board review was denied. No later than May 2002, the defendant informed the plaintiff that its representation was complete."

Plaintiff unsuccessfully appealed, and then years later, sued the attorneys.  "In November 2006, the plaintiff, pro se, commenced the instant action, alleging that after he was [*2]denied full Board review, the defendant failed to advise him of "any other legal remedies" relating to the workplace incident. The defendant moved to dismiss the complaint ....In opposition, the plaintiff asserted that he suffered from a mental illness for which he had been hospitalized several times and, thus, he was entitled to a tolling of the statute of limitations pursuant to CPLR 208. The Supreme Court rejected the plaintiff's claim because the medical records he relied on were not in admissible form.
Although the evidentiary facts alleged by the plaintiff reveal the existence of an issue of fact as to applicability of the insanity toll, we nevertheless affirm on other grounds. "
 
When the Damages are Huge, Look for Legal Malpractice to Follow

This story from Law.Com by Zusha Elinson tells of the aftermath of a $ 82 million Sony Patent case, with its reports of witness buying, false testimony and unreliable evidence.  From the Legal Malpractice perspective here is the nugget:

"Craig Thorner was the key witness in the Sony legal team's effort to overturn an $82 million patent infringement verdict in a case against Immersion Corp. over vibrating video game controllers. Sony claimed that Immersion paid Thorner to keep quiet about inventions of his that could have invalidated Immersion's patents.

But U.S. District Judge Claudia Wilken wouldn't retry the case, concluding in 2006 that Thorner was an unreliable witness and that there was strong evidence -- supported by testimony and internal Sony documents -- that Sony paid $150,000 for Thorner's testimony.
The patent fight between Silicon Valley's Immersion and Sony, and its salacious post-trial motions, were followed closely by local lawyers.
In a wide-ranging suit filed Tuesday in New Jersey District Court, Thorner accuses Sony's outside and in-house lawyers of snookering him into the $150,000 deal, which came in the form of convoluted agreement to license his patents. He also accuses Sony's outside counsel -- Gregory Gewirtz of New Jersey firm Lerner David Littenberg Krumholz & Mentlik -- of malpractice for allegedly acting as his lawyer in the deal, but for Sony's benefit.

The lawsuit claims that the lawyers "contrived to take advantage of Thorner's inexperience and lack of resources in order to (i) obtain a patent license from Thorner on extremely favorable terms, and (ii) induce Thorner to testify against Immersion."

Reached Thursday afternoon, Gewirtz denied the allegations.
"In my view, all the allegations against me and my firm are reckless and false and all, of course, denied," he said. "We will very vigorously defend against all the claims."

The way the deal at issue worked, according to the lawsuit, was this: Electro Source -- a video game company also being sued by Immersion -- would pay Thorner $150,000 to license his patents. The deal, however, was actually being funded by Sony, which in turn got a license from Electro Source according to the lawsuit and court hearing transcripts.

Thorner claims that Gewirtz agreed to be his lawyer in the negotiations with Electro Source, but was actually looking out for Sony's interest
 
Multi-State Legal Malpractice and the Borrower Statute
 
California corporation retains New York law firm to process a trademark application, which fails.  California plaintiff sues New York defendant  for legal malpractice in Federal District Court, SDNY.  Case is dismissed on jurisdictional basis.  Case is later brought in State Court in New York.  Does California or New York statute of limitations apply?

In Kat House Productions v. Paul Hastings Janofsky & Walker, Justice York determines that California law applies, based upon CPLR 202.  The borrower statute's purpose is to prevent forum shopping between states and [as the Court of Appeals favors, have a "bright line rule".]

"CPLR 202 is designed "to prevent forum shopping by plaintiffs and to adhere to the generally accepted definition." Global Fin. Corp, v. Triarc Corp., 93 NY2d 525.

"CPLR 202 is designed to add clarity to the law and provide the certainty of uniform application to litigants.  This goal is better served by a rule requiring the single determination of a plaintiff's residence than by a rule dependent on a litany of events relevant to the `center of gravity' of a contract dispute." Global  at 530.

Justice York then decided that since the "place where investors resided and sustained the economic impact of the loss" was the state for borrowing purposes, that the California one year statute of limitations applied.