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Patent malpractice claims are a rare, but growing area of legal malpractice. However, in Morgan & Mendel Genomics v. Amster Rothstein & Ebenstein, LLP, 2021 NY Slip Op 30465, the trial court dismissed a patent malpractice claim because the client failed to give correct information to the law firm.

The facts:

On October 15, 2012, Einstein asked the Defendant to help obtain patent protection for its new discovery (id., ¶ 23). When the Defendant asked Einstein, their own client, for the publication date of the Article, Einstein advised that it was first published in March 2012 (id. 26). This was however incorrect. In fact, although the Defendant learned that the Article had appeared online on January 11, 2012 and emailed Dr. Ostrer and Mr. Loke on November 26, 2012 to advise them of the same, the article was first published in an “Early View” service on December 15, 2011 (id., 18-20, 29). Subsequently, the Defendant filed a provisional patent application on January 8, 2013 and a non-provisional application on January 8, 2014 (the Application) (id., ¶¶ 36-37)…..

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One common issue that can trip up a litigant is the failure to disclose a civil lawsuit in a bankruptcy petition. The lawsuit is an asset of the bankruptcy estate. Failing to disclose the existence of the lawsuit can lead to the dismissal of the civil lawsuit. In Horvath v. Budin, Reisman, Kupferberg & Bernstein, LLP, 2021 N.Y. 30105 (U), the trial court (referred to in New York as the Supreme Court) denied the law firm’s motion to dismiss in just such a case.

After his civil lawsuit was dismissed for failure to include it as an asset of the bankruptcy estate, Horvath sued the law firm for negligence.  The summary of the facts indicates that the civil lawsuit was not disclosed until after Horvath’s Chapter 13 plan was confirmed.

In 2009, plaintiff filed a Chapter 13 Petition in the United States Bankruptcy Court for the District of New Jersey (“the Bankruptcy Court”) under Case No. 09-38537-KCF. Doc. 22. Plaintiff was represented in the bankruptcy proceeding by Jules Rossi, Esq. Doc. 22. On September 15, 2010, plaintiff was allegedly injured while he was a passenger in an elevator in a building in Manhattan. Doc. 21 at par. 4. Plaintiff thereafter retained the Law Offices of Michael Lamonsoff (“Lamonsoff”) to commence a personal injury action on his behalf against Gumley Haft Kleier Inc. (“GHK”) and Eltech Industries (“Eltech”). The action against GHK and Eltech was commenced in the Supreme Court, Bronx County in 2010 under Index Number 310013/10 (“the Bronx County action”). Doc. 17 at par. 16. Lamonsoff also represented plaintiff in an unrelated personal injury action commenced in New York County in 2010 under Index Number 115395/10 (“the New York County action”). Doc. 17 at par. 17.

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In Amari v. Griffin, 5:20-cv-00050 (W.D. Virginia January 27, 2021), the district court denied an attorney’s motion to dismiss a divorce malpractice case.  Amari argued that her former attorney in her divorce case (Griffin) failed to properly investigate her ex-husband’s assets and failed to retain appropriate experts. This is, in my experience, a typical divorce malpractice claim.

In his motion to dismiss Griffin argued that because Amari signed the divorce decree that estopped her from claiming that her lawyer committed legal malpractice. The Court rejected that argument:

Griffin argues that Count I, Roseanne’s claim for legal malpractice, is barred by collateral estoppel. (Dkt. No. 7 at 24-25.) Griffin claims that because Roseanne signed the divorce decree and the property settlement agreement during the divorce proceedings, issue preclusion bars her from bringing a legal malpractice claim. (Id. at 26.)

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If you believe you have been harmed by the actions of an attorney, here are some questions we would need the answers to before we could decide whether or not to take your case.

  1. Who is the lawyer or law firm that you believe committed malpractice?
  2. Were you a client of that law firm? Often the defendant will argue that the claimant was not a client of his firm. What evidence do you have to show that there was an attorney-client relationship? Did the lawyer prepare an engagement letter? Did you sign the letter?
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One of the major barriers to success in a legal malpractice case is the requirement to obtain an expert. The expert, usually a lawyer or professor, can offer testimony on how the conduct at issue did not meet the standard of care. Conversely, the defense expert will testify that the lawyer’s conduct met the standard of care. You may believe that your lawyer breached the duty of care but you need an expert to satisfy the court that you can meet your burden of proof.  The expert witness must also offer testimony that the breach caused some damage to the client. The expert need not be a damages expert, but he must testify that the breach of duty caused some economic harm to the client.

There are a few rare cases where legal malpractice can be established without an expert, but such cases are highly unusual.

When we review cases we often try to determine in advance if an expert in the area (family law, appellate law, etc.) would be able to offer testimony that the lawyer’s conduct breached the standard of care. If we cannot obtain such testimony, we will not go forward with the case.

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This case, County Line Nurseries & Landscaping, Inc. v. Kenney, 2020 IL App (1st) 200615, presents a recurring issue: when does the statute of limitations for legal malpractice begin to run?  Illinois has a two-year statute of limitations for legal malpractice. The hard question is figuring out when the statute begins to run.

County Line hired James Kenney to represent it in a contract lawsuit. The parties allegedly entered into a settlement of that lawsuit on September 23, 2014. County Line appealed and alleged that it had not entered into a binding settlement. The Appellate Court disagreed and affirmed the settlement.

On October 26, 2016, County Line filed suit against Kenney. Kenney moved to dismiss on the ground that the two-year statute barred the claim, which, in his view, had arisen on September 23, 2014. County Line argued that Kenney had fraudulently concealed the disputed settlement agreement from the client and that, therefore, the claim had not arisen on September 23, 2014. The trial court dismissed the case and the appellate court affirmed the dismissal of the malpractice lawsuit.

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Lawyers can be sued for aiding an abetting a fraudulent act or scheme. Such cases are rare, but not unheard of. Harpia Asset Management, LLC v. Shanbaum, 2020 NY Slip Op 30953(U) is one such case. Plaintiff alleged that the defendant lawyer aided and abetted another party’s wrongful conduct in connection with a foreclosure sale. (These are allegations that have not been proven.) The key allegation is that the lawyer favored one client over another in connection with a foreclosure sale.

The opinion summarizes the facts this way:

Harpia Asset Management LLC, 434 Throop Avenue LLC, Harpia Throop JV LLC, Harpia NYC Throop Holdings LLC, and Kris Henry (collectively, the Plaintiffs) operated a joint venture for the purpose of developing a property located at 434 Throop Avenue, Brooklyn, New York (the Property). The Shanbaum Defendants represented the Plaintiffs in a foreclosure action involving the Property captioned Nationstar Mortgage LLC v. Kris Henry et al., Index No. 506082/2014 (the Foreclosure Action). And, on January 30, 2019, the court (Dear, J.) in the Foreclosure Action signed a Final Judgment of Foreclosure (the Foreclosure Judgment), which ordered the sale of the Property within 90 days (NYSCEF Doc. No. 1, ¶ 35). On March 27, 2019, Nationstar Mortgage LLC (Nationstar) filed a Notice of Sale scheduling an auction sale (the Auction) of the Property on April 18, 2019 (id., ¶ 38). However, inasmuch as when the Foreclosure Judgment was entered on February 5, 2019, the Foreclosure Judgment was entered with the incorrect block number for the Property (id., ¶¶ 36-37), on March 29, 2019, Nationstar filed a motion to correct the Foreclosure Judgment nunc pro tunc, to correct the block number and extend the time for the Auction (id., ¶ 39).

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A recent case, Masellis v. Law Offices of Leslie Jensen, 50 Cal. App. 5th 1077, Court of Appeals of California (5th District. June 2020), discusses the burden of proof in a “settle and sue” legal malpractice case. That is a case where the plaintiff (represented by the lawyer) settles the underlying matter and then sues his lawyer alleging that the settlement was insufficient due to legal malpractice.

Here is the summary by Court of the issue and the conclusion:

The main legal question in these appeals is what burden of proof is appropriate in a legal malpractice action alleging an inadequate settlement? The defendant attorney Leslie F. Jensen (Attorney) addresses this question in two steps. First, she contends the elements of causation and damages in a “`settle and sue'” legal malpractice case[1] must be proven to “`a legal certainty.'” (Filbin v. Fitzgerald (2012) 211 Cal.App.4th 154, 166 [149 Cal.Rptr.3d 422] (Filbin).) Second, she contends the legal certainty standard imposes a burden of proof higher than a mere preponderance of the evidence.

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State v. Roat, 466 P.3d 439 (Kansas 2020) is an unlikely case to provide an interesting discussion of a legal malpractice issue. Roat, having served his sentence, argued that his sentence for a crime had been computed incorrectly. The court held the appeal was moot. Roat tried to argue that his lawyers committed malpractice but the court rejected that argument as well. The discussion is thoughtful and the court concludes that a lawyer does not have a duty to argue for a change in the law.

Roat provides little in the way of the details of what he might assert as a factual basis for a legal malpractice claim. He leaves it to the appellate courts to flesh out the nature of his claims against his trial counsel. Failure to brief an analytic framework sufficiently for effective appellate review is tantamount to not raising the issue at all. See State v. Boleyn, 297 Kan. 610, 633, 303 P.3d 680 (2013); State v. Easterling, 289 Kan. 470, 487, 213 P.3d 418 (2009). A party should not leave the court “to guess about the specifics of how [a party] would frame his arguments….” State v. Berriozabal, 291 Kan. 568, 594, 243 P.3d 352 (2010).

We are reluctant to try to put flesh onto the skeleton of a hypothetical legal malpractice claim that Roat suggests creates an interest sufficient to defeat mootness. It may be that he would argue that his attorney should have made the arguments that appellate counsel successfully made in State v. Dickey, 301 Kan. 1018, 350 P.3d 1054 (2015). If Roat’s trial attorney had successfully made those arguments, then, the reasoning might be, he would have spent less time incarcerated.

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Every plaintiff must surmount the hurdle of proximate causation. You cannot just allege that the lawyer committed malpractice, you must show how the error caused you damage. If you cannot do that, your legal malpractice case will be dismissed.  In Katsoris v. Bodnar & Milone, LLP, 2020 NY Slip Op 05040 (New York Appellate Division Second Department). The lawyers represented Katsoris in his divorce case, which was resolved by settlement. He sued for malpractice but the case was dismissed because Katsoris was unable to allege an error that caused any harm to him. The key discussion:

Here, the complaint failed to adequately allege actual, ascertainable damages. The general allegations that, as a result of the alleged acts of malpractice, the plaintiff was caused to incur “additional legal fees,” and caused to suffer “financial damages and expense,” “adverse financial consequences,” and “direct financial damage,” were all conclusory and inadequate to constitute “actual, ascertainable damages” (Dempster v Liotti, 86 AD3d at 177). To the extent that the complaint addressed the plaintiff’s settlement, the complaint alleged that the defendant’s negligence in its handling of the divorce action caused the plaintiff to suffer “direct prejudice . . . in both trial and/or settlement,” and that, but for such negligence, the plaintiff “would have fared far better at trial and/or in settlement of the Divorce Action.” These allegations are conclusory and lack any factual support, and they are inadequate to sufficiently allege that the stipulation of settlement that the plaintiff entered into with his former wife was “effectively compelled” by the mistakes of counsel (Rau v Borenkoff, 262 AD2d 388, 389; see Benishai v Epstein, 116 AD3d 726, 728). “The fact that the plaintiff subsequently was unhappy with the settlement [he] obtained . . . does not rise to the level of legal malpractice” (Holschauer v Fisher, 5 AD3d 553, 554). “Moreover, the plaintiff failed to plead specific factual allegations showing that, had he not settled, he would have obtained a more favorable outcome” (Schiller v Bender, Burrows & Rosenthal, LLP, 116 AD3d 756, 758; see Keness v Feldman, Kramer & Monaco, P.C., 105 AD3d at 813; Tortura v Sullivan Papain Block McGrath & Cannavo, P.C.,21 AD3d at 1083; Dweck Law Firm v Mann, 283 AD2d 292, 293; Rau v Borenkoff,262 AD2d at 389). Accordingly, we agree with the Supreme Court’s determination to grant that branch of the defendant’s motion which was pursuant to CPLR 3211(a)(7) to dismiss the first cause of action, alleging legal malpractice.

Here, plaintiff could not explain what the lawyer did that was wrong and why that purported error caused damage.

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