Be forewarned: I’m citing case law here, so if that scares you, stop reading now.
There are two things lawyers are doing wrong when it comes to scope of representation, as in, “What is your obligation to this client?”
The failure to comprehend this critical concept begins when you are retained, and rears its head again when the representation is over.
So let’s talk about the dumbass things you are doing to complicate your life, and how to fix them.
First, understand that there are few things more important than a “scope of representation” clause in your retainer agreement….
Continue reading “The Practice: Do You or Your Client Understand the Scope of Representation? (Part I)”
* The TSA must be stopped. They’re now leaving creepy notes when they spy personal items in your luggage. [Not So Private Parts / Forbes]
* Law students, trust me, there’s nothing on your Facebook page that three more points on the LSAT won’t fix. [WSJ Law Blog]
* Berkeley Law 1Ls are playing an awesome game of assassin. Man, I miss college. I mean law school. [Nuts & Boalts]
* Would there even be medical malpractice if libertarians ruled the world? [Overlawyered]
* The Casey Anthony jurors are probably dying for a closeup. [Huffington Post]
* The future of Law and Economics. [Truth on the Market]
A wise man once said: “There, but for the grace of God, go I.”
I think of this whenever there are claims of attorneys royally screwing up e-discovery. It’s easy to indulge in some schadenfreude and say, “What suckers!” But truthfully, many firms — even the big, prestigious ones — are more vulnerable than they’d like to admit.
This month, McDermott Will & Emery ended up in the bright, unpleasant spotlight, because a former client sued the firm for malpractice.
Why, you might ask? The firm allegedly botched a client’s e-discovery.
Keep reading to see how the Am Law 100 firm became the e-discovery dunce du jour….
Continue reading “McDermott Will & Emery Wins E-discovery Blunder of the Week”
Well, this is pretty much my worst nightmare. Legal Profession Blog reports on the horrible story of Olufemi Nicol:
The Illinois Administrator has filed a complaint alleging that an attorney failed in bad faith to repay his student loans for a graduate business degree obtained after he graduated from the University of Chicago Law School in 1994. From 2006-2006, the attorney held several positions in business including a stint as president of Gear 7 in Los Angeles. The complaint alleges that the attorney received over $78,000 in loans in 2006 and signed two promissory notes. He allegedly has not made any payments on either note.
Okay, phew. I never took out additional loans for further education while I still owed money on my J.D. And I restarted payments — minimum payments — after I got a new job outside of Biglaw. I’m golden. AVOIDING DEBTOR’S PRISON SECURE!
But this Nicol guy? Yeah, sounds like he’s screwed. Law Shucks picks up the story….
Continue reading “Former DLA Piper Attorney Faces Lawsuit for Failure to Pay His Debts”
Should Judge Richard Posner leave the Seventh Circuit and run for president? He certainly has the beginnings of a platform.
And, despite some possible leftward drift, Judge Posner’s tendencies still seem to point in a libertarian direction. From The Atlantic:
1. Remove all limits on the immigration of highly skilled workers, or persons of wealth. (This should be done gradually, so as not to increase unemployment while the unemployment rate remains very high.)
2. Decriminalize most drug offenses in order to reduce the prison population, perhaps by as much as a half, which will both economize on government expenditures and increase the number of workers. (Again and for the same reason, phase in gradually.)
3. Curtail medical malpractice liability, which increases medical costs gratuitously (because the courts are very poor at identifying actual malpractice) and, more important, engenders a great deal of very costly, and largely worthless, “defensive medicine.”
These are just the first three planks. Check out the rest of Posner’s policy proposals — he’s more willing than most sitting judges to opine on current affairs (see also his many books) — over here.
Is Paul Krugman a Realist or a Dreamer? Toward Refocusing on Economic Growth [A Failure of Capitalism/The Atlantic]
Is suing a former client for unpaid bills a wise idea? Maybe not. As John Marquess, president of Legal Cost Control, told the New York Law Journal, “If I were advising any law firm, I would tell them suing a client over fees is a no-win situation. It’s going to get you adverse publicity you may or may not recover from. And if it went before a jury, juries hate lawyers.”
And what if your ex-client is, say, a green company devoted to the cause of sustainable forestry? Going after that client seems like an even worse idea from a PR perspective. Al Gore would not approve.
But Debevoise & Plimpton decided to move forward anyway with its $6 million lawsuit for unpaid fees (see last item). Now the firm is on the receiving end of some unpleasant counterclaims. From Am Law Litigation Daily:
On Wednesday morning, Debevoise’s erstwhile client, Candlewood Timber Group, filed an answer and counterclaims against Debevoise, seeking damages of $55 million. And some of Candlewood’s allegations about its former law firm aren’t very flattering….
Candlewood now asserts that Debevoise made critical errors, missed major points, and billed excessively for the work of inexperienced lawyers. The firm’s deficiencies, according to Candlewood, forced the company to accept less in a settlement than it should have. The company’s counterclaim contrasts Debevoise with Candlewood’s Delaware counsel–Bouchard, Margules & Friedlander—which successfully represented the company for two-and-half years at a total cost of $450,000. “Over a 10-month pretrial and trial period–during which time D&P had the assistance of BM&F and later Susman–D&P managed to bill for more than 15,000 hours, the equivalent of 10 lawyers working full-time for the ten-month period,” Candlewood’s counterclaim alleges.
Fifteen thousand hours? Not bad. It may not be a Siemens, but this is still the kind of matter that should throw off millions in fees (too bad for Debevoise that they weren’t paid, at least not in full).
More about Candlewood’s claims — plus highlights from the retainer letter, including D&P billing rates — after the jump.
Continue reading “Ex-Client Sues Debevoise & Plimpton for $55 Million”
‘Tis the season for… litigation between law firms and their ex-clients? What happened to the holiday spirit of peace and good will for all?
First Simpson Thacher (malpractice), then Debevoise (last item — unpaid fees), and now, Paul Hastings (malpractice). From the New York Law Journal:
A financing unit of Cerberus Capital Management L.P. has sued Paul, Hastings, Janofsky & Walker, claiming the law firm gave it bad advice in connection with a loan the private equity firm made last year to a company looking to bring retailer Steve & Barry’s out of bankruptcy.
Ableco Finance LLC, a unit of Cerberus with more than $6 billion under management, filed an amended complaint Friday in Manhattan Supreme Court against its former lawyers seeking more than $55 million it said it lost because of the $125 million loan. Ableco claims it would never have made the loan last year if the Paul Hastings team had advised it that the buyer would not have rights to all of Steve & Barry’s inventory, which Ableco understood would back the loan.
“No competent, diligent finance lawyer would have put his client in such a vulnerable position,” Ableco’s complaint reads in part.
Ouch. We agree with Ashby Jones of the WSJ Law Blog: “It’s never good for a law firm to get sued by one of its clients. But when the client is a deep-pocketed heavyweight like private-equity giant Cerberus, the news is probably especially unwelcome.”
But Paul Hastings is fighting back, with the help of high-powered counsel.
Continue reading “Lawsuit of the Day: Cerberus v. Paul Hastings”
Getting sued for malpractice, even if the claims lack merit, is never fun. Earlier this week, we wrote about Seyfarth Shaw, which is being sued by Tae Bo star Billy Blanks for malpractice (and being sued by a current partner for breach of fiduciary duty, among other claims).
Let’s declare this week “West Coast Malpractice Week” here at Above the Law. Yesterday a California appellate court reinstated a malpractice lawsuit against the super-prestigious firm of Simpson Thacher & Bartlett and two of its partners, George Newcombe and Alexis Coll-Very, based in STB’s Palo Alto office.
The underlying lawsuit is somewhat complex; here’s the gist of it. Simpson Thacher represented PrediWave Corporation, a (now-bankrupt) California technology company, and its former CEO and president, Jianping “Tony” Qu. Prediwave alleges that Tony Qu was essentially looting the company, siphoning away its assets, and that Simpson Thacher — which represented both the company and Qu, a claimed conflict of interest — didn’t adequately protect the company’s interests against Qu (and even made it more difficult for the company to investigate Qu and his alleged self-dealing).
In the trial court, Simpson Thacher — represented by another powerhouse firm, Munger, Tolles & Olson (aka West Coast magnet for SCOTUS clerks) — won dismissal of the lawsuit, pursuant to California’s “anti-SLAPP” statute. If you’re not familiar with anti-SLAPP statutes, one of a blogger’s best friends (along with Section 230), here’s a brief description:
SLAPPs are Strategic Lawsuits Against Public Participation. SLAPPs are lawsuits filed against people or organizations because they have exercised their right to petition the government or speak out on public issues. SLAPPs frequently contain claims for libel, slander, defamation, malicious prosecution, and/or abuse of process.
Can an anti-SLAPP law be used to secure swift dismissal of a malpractice action brought by a client against its former counsel? PrediWave, represented by Squire Sanders and California appellate boutique Horvitz & Levy (previously discussed here), argued that this is not a proper application of the statute. In its opinion (PDF), the California Court of Appeal (Sixth Appellate District) agreed, reinstating the suit against Simpson. (The court did not address the underlying merits of the case, leaving those to the trial court on remand.)
More discussion — including a statement from Simpson Thacher, which calls Prediwave’s claims “baseless” and declares that STB will “defend this claim vigorously” — after the jump.
Continue reading “Malpractice Suit Against Simpson Thacher Reinstated on Appeal”
Back in February, we covered a legal malpractice lawsuit brought by Billy Blanks, the Tae Bo king, against his former firm, Seyfarth Shaw. A jury found in Blanks’s favor and issued a $30 million verdict, but that verdict was overturned on appeal, due to flawed jury instructions. A new trial is set for July 2010.
In the meantime, an interesting related lawsuit has been filed. As reported by Leigh Jones in the National Law Journal (via the ABA Journal), William Lancaster, a nonequity partner at Seyfarth Shaw, has sued his own firm. And he’s pulling an Aaron Charney — he’s still working for the firm he’s suing, in the Los Angeles / Century City office, and he’s still on the website. That sounds a bit awkward.
Lancaster, a former equity partner at Seyfarth Shaw, alleges that he was the subject of an unfair demotion and associated pay cut. His complaint constitutes an indictment of Seyfarth’s overall firm culture, which he claims has sacrificed values of professionalism and collegiality on the altar of Mammon.
More juicy details, including internal emails and a link to the full complaint, after the jump.
Continue reading “Lawsuit of the Day: Lancaster v. Seyfarth Shaw
Partners told to ‘hustle for cash,’ congratulated for ‘prying cash out of clients’ hands.’“
This year hasn’t been a fabulous one for Blank Rome. They’ve had to cut both salaries and headcount. The firm also pushed back start dates for first-year associates, until “at least” January 2010, and the 2009 summer program was a brief six weeks.
This latest news doesn’t improve matters. From the Legal Intelligencer, via Am Law Daily (and also a commenter):
Blank Rome has entered into a $20 million agreement with the trustee of a former client that is now in bankruptcy to settle a complaint that alleged breach of fiduciary duty, professional malpractice and breach of contract claims against the firm.
The settlement, reached in the Philadelphia Common Pleas Court case Miller v. Blank Rome, was approved by U.S. Bankruptcy Judge Mary F. Walrath for the District of Delaware on July 28. Walrath is overseeing the bankruptcy of American Business Financial Services, which is involved in a string of litigation in both state and federal court stemming from its bankruptcy and business dealings.
Blank Rome does not admit any liability or wrongdoing in agreeing to the settlement, according to the agreement.
Of course they don’t admit liability. Still, $20 million is a lot of dough. Who’s on the hook for that?
Continue reading “Blank Rome’s Massive Malpractice Settlement”
The 90′s were good to Billy Blanks of Tae Bo fame. His taekwando-boxing hybrid workout routine was all the rage across the land, with Paula Abdul a notable follower.
After his career peaked, the legal troubles started. In 1999, he filed a $10 million suit against his agent, because his agent wasn’t licensed to be an agent. And he hired Seyfarth Shaw to represent him. The case did not go well, and Blanks kick-boxed a malpractice suit Seyfarth’s way. One of Seyfarth’s L.A. partners, William Lancaster, bore the full brunt of Blanks’ aerobic fury, because Blanks alleged that he missed the statute of limitations by four weeks because Lancaster was dilly-dallying in the Superior Court system rather than taking his complaint to the labor commissioner, where it belonged.
The malpractice suit was decided in Blanks’ favor, and he was awarded $30 million. But the Second District Court of Appeals has reversed the judgment and remanded the case to the trial court.
Not without a cardio-kick to Seyfarth. From the Legal Pad:
[The] Second District Court of Appeal ruling that gave [Seyfarth] that dancing-with-joy moment wasn’t very kind to their law firm: It almost scoffed at their defenses to a celebrity’s claim of legal malpractice….
[Justice Richard Aldrich] had a warning for Seyfarth (and the trial judge) on remand. Aldrich speculated that Seyfarth will argue that Lancaster’s decision to delay filing a TAA petition was “a reasoned choice” or a “prudent trial strategy.” But he indicated that won’t be easy.
“Although attorneys have wide latitude in selecting strategy,” Aldrich wrote, “Seyfarth will have the burden to explain why its choice to delay filing a TAA petition was based upon a rational, professional judgment that would have been made by other reputable attorneys in the community under the same or substantially similar circumstances.”
Billy Blanks is giving Seyfarth quite the work-out.
Seyfarth off Hook for $30 Million Award — for Now [Legal Pad]
Court Throws Out $30 Million Legal Malpractice Award [Metropolitan News-Enterprise]
Second District Court of Appeal Ruling
A Kentucky man is suing his doctor, his anesthesiologist, and their medical practice after the worst operation ever. From WLKY:
According to the lawsuit, Philip Seaton, 61, went to have a circumcision last October as part of treatment for a medical condition. Seaton said when he woke up from the procedure, he realized his penis had been amputated.
Seaton has suffered mental anguish, pain, and has lost the enjoyment of life, according to the lawsuit.
The doctor says he amputated after he found cancer. But that’s definitely a call you want to run by the patient first. It’s not like you’re just removing a random mole.
An AP article suggests that Seaton will see big money. An Indianapolis man who suffered a similar fate was awarded $2.3 million in 1997. Certainly a hefty sum, but there are some things money can’t buy. Like enjoyment of life. Or a new penis.
Man Sues Doctors After Penis Amputated [WLKY]
Man claims penis amputated without consent [Associated Press]
* Top candidates turn to trial lawyers for support. [Washington Post]
* More recusal requests expected in WV Supreme Court. [WSJ Law Blog]
* Former NFL player’s wife files malpractice suit over surgery. [ESPN]
* Suffrage suffers in Mexico. [MSNBC]
* How to count primary delegates (and an explanation of the “superdelegates”). [New York Times; New York Times]
* “It’s just not realistic” to present major new initiatives, but the SOTU will still be on every channel tonight. White House speechwriters are not on strike. [CNN]
* Super-litigator Tom Barr of Cravath, RIP. [New York Times (death notice); WSJ Law Blog]
Good things about Cadwalader, Wickersham & Taft: profits per partner of $2.9 million, third behind Wachtell and Cravath. Visits from Cameron Diaz.
Bad things about Cadwalader: bed bugs. And $70 million malpractice lawsuits.
The indefatigable Anthony Lin has this report, in the New York Law Journal:
As the global slowdown in the market for mortgage-backed securities threatens a core practice area of Cadwalader, Wickersham & Taft, the New York law firm is also wrestling with a $70 million legal malpractice suit brought by a major issuer of such securities….
Nomura Asset Capital Corp., a U.S. division of Japan’s largest securities firm, filed suit against Cadwalader last October in Manhattan Supreme Court over documents the law firm drafted for a 1997 securitization transaction in which Nomura pooled 156 commercial mortgages worth around $1.8 billion.
We’ll spare you the details of the suit, since they’re boring and kinda hard to follow. CWT is represented by Cravath, and they’re moving to dismiss.
More discussion — including talk about associate layoffs, triggered by the generally grim climate for mortgage-backed securities work — after the jump.
Continue reading “Cadwalader Hit With $70 Million Malpractice Suit”
* Lawyer opinions solicited: Is this an effective ad for malpractice insurance? [Copyranter]
* Another ugly day for the stock market. [Volokh Conspiracy]
* On that subject: Is the vast family fortune of Rachel Kovner, ATL’s official It girl, in jeopardy — as recently rumored by our sibling site? Not exactly. But if Bruce Kovner’s legendary fund is up only 3 percent year-to-date, things could certainly be better. [DealBreaker]
* What? The iPhone is not God’s greatest gift to man? Bite your tongue! [Althouse]
* Ignoring a handslap will get you a benchslap. See page 15, footnote 7. [U.S. Court of Appeals for the Second Circuit (PDF)]
This can’t help the whole equity partner situation at Mayer Brown.
A court-appointed examiner in the Refco bankruptcy case has there are grounds to sue Mayer Brown for malpractice in the case. Ernst & Young and Weil might be on the hook too, but these are “close calls” according to the examiner (with the obvious implication that with Mayer Brown it is not a close call). This from a Reuters article on the report from the examiner, Joshua Hochberg:
Hochberg filed his report with the U.S. bankruptcy court in Manhattan. His recommendations could provide grounds for lawsuits by Refco creditors, many of whom received only a fraction of the amounts they claimed they were owed.
Hochberg is a partner at McKenna Long & Aldridge LLP in Washington, D.C. specializing in white-collar crime. He used to head the fraud unit of the U.S. Department of Justice.
Mayer Brown has not commented.
Earlier:
Mayer Brown Rowe & Maw-ling: Getting Too Far in Front of the Story?
Mayer Brown Rowe & Maw-ling: A Bit of Backstory
This case summary, from CourtBriefs, was emailed to us with the following subject line: “Why I saw this and thought of ATL, I have no idea.”
Regardless of your views on abortion — and we’ll just say, for the record, that we are not unsympathetic to the pro-life cause — this lawsuit should strike you as a bit dubious:
This is like suing a bear for failure to warn that he might attack. A bear is as a bear does; and so is Planned Parenthood.*
Here’s our favorite part of the Doe v. Planned Parenthood summary:
As a result of the counseling, assertions and representations of the Planned Parenthood personnel and various Defendants, [Doe] underwent an abortion that day. Her unborn infant, Michael Doe, died as a result of the abortion procedure.
That tends to happen when you get AN ABORTION, dear.
(In all seriousness, even pro-lifers — or pro-choicers who, like Bill Clinton, believe abortion should be “safe, legal and rare” — should not support a lawsuit like this. Awarding money damages to women for undergoing abortions seems like unwise public policy.)
Doe v. Planned Parenthood [Court Briefs (subscription)]
* We’re setting aside all the other problems, including jurisdictional ones, with suing a bear.
* Pity the petty, Tommy Bahama-wearing victims of the defectively long and narrow armrests of Metro-North commuter trains. [New York Times]
* Dr. Daniel goes to prison after lubing up the Beverly Hills ladies… in a bad way. [Los Angeles Times]
* Small firms are great and all, but can they afford the luxury of a Holiday Extravaganza in the cafeteria? [Build a Solo Practice, LLC]
* A crime against the Christmas spirit? No, just a mom charging her kid with petty larceny. [The Smoking Gun via CrimLaw]
* Remember that ninth-grade health ed presentation on the dangers of smoking, with the gross photos of cancerous lungs? That is when the statute of limitations should start running. (The SOL in trans-fat cases, because it’s only a matter of days now, should run the day you realize you can’t see your penis anymore.) [Point of Law]
The past few days have been full of law-related news about celebrities. E.g., Lindsay Lohan, Wesley Snipes, and Madonna. And no menagerie of stars would be complete without the King of Pop himself: Michael Jackson.
Things are getting majorly “meta” for Michael. He’s retained new lawyers to sue his former lawyers, against whom he makes some pretty wacky interesting allegations:
Michael Jackson is accusing his former attorneys of conspiring to put him into involuntary bankruptcy. In papers filed on Aug. 29 in Tarzana, Calif., but unseen until now, Jackson accuses former attorneys Ayscough & Marar of “approaching other lawyers” who represented Jackson “in an effort to get such lawyers to join [with them] in forcing Jackson into involuntary bankruptcy …”
We tend to doubt Jackson’s precarious financial condition is the fault of his lawyers. Unless they happen to be prepubescent boys demanding millions in hush money.
Jacko: Former Lawyers in Conspiracy [Fox News]
* Lawyer was grand jury leak in BALCO case. [
