This is every client’s worst nightmare. The lawyer you hire botches the job forcing you to hire a legal malpractice lawyer. And then the malpractice lawyer misses a deadline. Legal malpractice squared. Frankly, we haven’t encountered this set of facts until now.
Every lawyer worries about missing deadlines. Unfortunately, it happens. If a lawyer misses a critical filing deadline, the client could see his or her claim go up in smoke. Legal malpractice occurs when a lawyer misses a critical deadline and without any valid excuse or justification.
What is “justification”? Well if you hire your lawyer the day before a deadline or even after a deadline then it isn’t fair to blame her for missing the deadline. Lawyers can take a reasonable period of time to investigate a claim. But they can’t sit on their hands and do nothing.
In a recent New York lawsuit, Noam Baram and Moshe Ziv claim they hired a lawyer to pursue a legal malpractice against another law firm. When the second lawyer missed a filing deadline, the tables were turned and he suddenly found himself as the defendant in a malpractice claim. What are the odds?
Legal Malpractice Case No. 1
Baram and Ziv claimed they hired New York lawyer Carl Person to represent them. The men believed that their prior lawyers, Herrick, Feinstein LLP, had botched a zoning case and rendered a bad opinion. The two men claim the work done by Herrick, Feinstein was shoddy. As a result of that work, they claim they lost at least $7 million in a development deal.
Person agreed to handle the malpractice case and sought a “large retainer plus a substantial contingency fee.” Person also claimed he was an “expert” in the field.
The agreement with their first lawyers required Baram and Ziv to arbitrate any claims. Arbitration clauses are increasingly common and are allowed in many states, particularly in commercial matters. Arbitration clauses don’t change the statute of limitations or period in which one must bring a claim. In New York, legal malpractice cases generally have to be brought within 3 years.
The complaint says Person was hired on March 19, 2013. Before Person could file a complaint, however, Baram and Ziv first had to turn over all their records to him. The men say that they had assembled and turned over all documents by August 16th. Thereafter, Baram and Ziv say that 7 more months went by without Person filing a complaint.
Becoming concerned that nothing was happening, both men asked about the statute of limitations for filing the arbitration. Person allegedly assured them that they had adequate time to file. Finally, in February of 2014, Person had completed the complaint and arbitration demand. One week later the arbitration demand was filed.
Too late! In a subsequent court hearing, a judge ruled the statute of limitations had expired in December of 2013. That order was later affirmed on appeal (an appeal that Baram and Ziv had to pay Person to file)!
Legal Malpractice Case No. 2
After the first malpractice case was dismissed, Baram and Ziv hired yet another malpractice lawyer to file a legal malpractice suit, this time against their now former lawyer, Carl Person.
The new complaint alleges legal malpractice, breach of contract and breach of fiduciary duty.
So what was Person doing for the 51 weeks that he served as Baram and Ziv’s lawyer? The two men say he didn’t do very much. The ultimate claim filed was just 14 pages long and contained just two exhibits.
Proving a legal malpractice claim is never easy. As we have explained in prior posts, virtually every legal malpractice case involves a “case within a case.” In this case, that would normally mean that Person would first have to prove that Herrick Feinstein LLP gave bad advice and breached their duty of care. Assuming that threshold is met, Person would then have to convince a jury that “but for” the law firm’s bad advice, Baram and Ziv would have held on to their property and made millions more in profits.
This case is extremely interesting because it involves a case within a case within a third case.
Now, the developers’ new counsel must also prove that Person committed malpractice. Ironically, that may be the easiest of the three elements to prove since the representation agreement said in part that Person committed to “proceed with the drafting, filing and serving the complaint prior to the expiration of time to file your claim.”
Assuming that Baram and Ziv are successful, there is a real question about the collectability of any damage award. Most solo practitioners have very low limits on their legal malpractice insurance.
There are two sides to every story, of course. At this point, the allegations against Person have not been proven. Missed deadline cases, however are some of the easiest legal malpractice cases to prove. Assuming that Baram and Ziv clear this hurdle, the two developers must still prove that their original lawyers also committed malpractice and that their malpractice caused damages.
Legal malpractice is one of the most difficult practice areas of law. Few lawyers routinely handle these cases or concentrate in professional malpractice. A quick review of Carl Person’s website reveals suggests his practice emphasizes foreclosure defense and general corporate work. There is no mention of legal malpractice on the site. Ditto for their present malpractice lawyer.
We are not suggesting either of his prior legal malpractice lawyers are bad or incompetent. They may both be brilliant foreclosure defense lawyers. As noted above, however, legal malpractice is highly specialized work. If you had a new Rolls Royce that received some paint chips would you take it to a Maaco for their $299 paint special? Of course not, so why trust your legal malpractice case to a general practitioner?
If you are the victim of poor lawyering and have lost at least $2 million, give us a call. We represent businesses and individuals with large losses. For more information, visit our legal malpractice information page, contact us online, by email [hidden email] or by phone at 877-858-8018.