Fee Disputes in the Big Arena and Legal Malpractice
Today's New York Law Journal reports on a fee dispute.in an article by Susan Beck of The American Lawyer.  This, however is not a fee dispute one might see on a typical day in the fee dispute world.  Typically, those fee disputes are for sums less than $ 50,000.  Here, the client paid $ 5 million to Boies Schiller and the dispute is over an additional $ 5 million.  Besides those sums, the client paid Davis Polk an additional $ 7 million in fees before it ran out of money.
"In a lawsuit filed Oct. 1 in Manhattan Supreme Court, G.K. Las Vegas Limited Partnership is seeking to force Mr. Boies's firm, Boies Schiller & Flexner, to arbitrate a fee dispute before the American Arbitration Association and to place more than $5.04 million in disputed fees in escrow.
G.K. claims that it has already paid the firm $5 million and disputes its obligation to pay another $5.04 million. It alleges that Boies Schiller breached its agreement that Mr. Boies would serve as lead counsel and "shirked its professional responsibilities" to the client.
Justice Bernard J. Fried (See Profile) has ordered Boies Schiller to respond to G.K.'s petition to compel arbitration by Oct. 15. A hearing in G.K. Las Vegas Limited Partnership v. Boies Schiller & Flexner, 651632/2010, is scheduled for Oct. 19.

Attorney Client Privilege in Legal Malpractice Litigation
 Carl v. Cohen, Supreme Court, New York County, Justice Edmead 2009 NY Slip OP 30806(U), April 15, 2009 illustrates two distinct principals in the area of attorney-client privilege. The first is privilege and at issue communications.  The second principal, to be discussed on Friday, is relation-back and the statute of limitations.
Plaintiff in this case was an employee at a mutual fund operation, and was embroiled in a market timing case in which it was alleged that someone was utilizing the time-zone differences between the east coast and California to make money in the mutual funds market.  He hired law firm 1, then fired it, and went on to law firm 2 and 3.  This case discusses the question of whether target attorney in the legal malpractice case may obtain otherwise privileged materials from the successor attorneys.
"The issue at bar in this case is whether Cohen may depose plaintiff's successor attorneys about the contents of and subject matter of these documents, as well as other communications "A waiver may also be found where the client places the subject matter of the privileged communication at issue, or where invasion of the privilege is required to determine the validity of the client's claim or defense and application of the privilege would deprive the adversary of vital information [internal citations omitted] (Jakobleff v. Cerrato, Sweeney & Cohn, 97 AD2d 834, 835 [2d Dept 1983] [plaintiff did not place her privileged communications with her present attorney at issue, nor was discovery of such communications required to enable defendants to assert a defense merely by bringing an action against her former attorney for legal malpractice]; Credit Suisse First Boston v. Ultrecht-American Fin. Co., 27 AD3d 253, 254 [1st Dept 2007]; Raphael v. Clune White & Nelson, 146 AD2d 762, 763 [2d Dept 1989] [attorney-client privilege between client and attorneys who had taken over case from law firm was not waived by client's initiating lawsuit. In addition, appellants failed to establish why the disclosure of privileged correspondence was vital to their defense in light of the broad range of materials already supplied by plaintiff]).


Non-Economic Damages in Legal Malpractice Litigation
Plaintiff sues defendant attorneys for legal malpractice.  Among the claims of damages are financial losses in the underlying case, as well as emotional -pain and suffering-damages based upon outrageous conduct by the attorneys.  Are these non-economic damage claims permissible?
In New York, there may not be claims for non-economic damages arising from legal malpractice.  When one says A"arising" from legal malpractice, it is correct to say that the behavior of the attorneys cannot give rise to emotional damages.  Of course, if the legal malpractice took place in , say, a personal injury action, then the emotional damages which might have been collectable there are part of the overall legal malpractice damages, as they are now economic, and must be calculated as if in a hypothetical judgment that was never obtained.
In Taylor v Paskoff & Tamber, LLP ;2010 NY Slip Op 20405 ;Decided on October 4, 2010 ;Supreme Court, New York County ;Stallman, J.  we see his decision on an offshoot of this issue.  ""Emotional damages are not recoverable in a legal malpractice action." Kaiser v Van Houten, 12 AD3d 1012, 1014 (3rdDept 2004); Risman v Leader, 256 AD2d 1245, 1245 (4th Dept 1998); Dirito v Stanley, 203 AD2d 903 (4th Dept 1994). " A cause of action for legal malpractice does not afford recovery for any item of damages other than pecuniary loss so there can be no recovery for emotional or psychological injury." Wolkstein v Morgenstern, 275 AD2d 635, 637 (1st Dept 2000).

One Good and One Bad Affidavit in Legal Malpractice Case
The decision in this case is straightforward, but gives practitioners little practical advice on how to word and present an expert's affidavit.  In Giardina v Lippes, 2010 NY Slip Op 06834; Decided on October 1, 2010;  Appellate Division, Fourth Department we see two things.  The first is that the two summary judgment motion rule is not really a rule at all; it is really just guidance to the Court.  Two motions for summary judgment might be entertained after all.
 
The second issue we see is that of the quality of expert opinions in summary judgment.  Once, the rule was that courts scrutinize whether movant demonstrates prima facie entitlement to summary judgment, and if so, whether opponent demonstrates material questions of fact that continue to require resolution by the trier of fact.
The quality of an expert's opinion was sacrosanct, since facts may not be debated in a motion for summary judgment.  Here, and in many other cases the kicker is when a court feels permitted to rule out the expert's opinion as "conclusory."  In this case, as in many other appellate decisions, no time is taken to explain why the particular affidavit was "conclusory" rather than permissible.  What makes the difference?
Here, defendant's expert presented a "good" affidavit, and plaintiff's expert presented a "conclusory" affidavit in a lawn care products liability case.  How does one tell the difference?

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