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Complaint Stated Cause of Action for Legal Malpractice/Court Rejected Argument that Defect in Service Could Have Been Cured by Successor Counsel as Speculative

The Second Department determined the complaint sufficiently stated a cause of action for legal malpractice.  The court rejected the defendants’ argument that successor attorneys could have remedied the defect in service as speculative because, in order to remedy the defect, Supreme Court would have had to exercise discretion:

To establish a cause of action to recover damages for legal malpractice, a plaintiff must prove (1) that the defendant attorney failed to exercise that degree of care, skill, and diligence commonly possessed by a member of the legal community, (2) proximate cause, (3) damages, and (4) that the plaintiff would have been successful in the underlying action had the attorney exercised due care … . To establish proximate cause, it must be demonstrated that a plaintiff would have prevailed in the underlying action but for the attorney’s negligence … .

On a motion to dismiss pursuant to CPLR 3211(a)(7), the facts alleged in the complaint are accepted as true, the plaintiff is accorded the benefit of every possible favorable inference, and the court’s function is to determine only whether the facts as alleged fit within any cognizable legal theory … . Grant v La Trace, 2014 NY Slip Op 05155, 2nd Dept 7-9-14

 

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Conditioning Plea Offer Upon Withdrawal of a Constitutional Speedy Trial Motion Is an Inherently Coercive Mode of Proceedings Error

The Third Department determined that the People’s conditioning of a plea bargain on the defendant’s withdrawal of his constitutional speedy trial motion was a mode of proceedings error requiring reversal:

…[T]he Court of Appeals has recently cited to People v Blakley (34 NY2d at 315) as an example of the “mode of proceedings” exception to the preservation rule (People v Hanley, 20 NY3d 601, 604, 605 n 2 [2013]). In that case, the Court held that conditioning a plea on a waiver of a constitutional speedy trial claim is “inherently coercive” (People v Blakley, 34 NY2d at 313). The narrow mode of proceedings exception speaks to fundamental flaws that implicate “rights of a constitutional dimension that go to the very heart of the process” … . Where, as in Blakley, the People condition a plea offer on the defendant’s waiver of his or her constitutional speedy trial claim, the integrity of the judicial process has been undermined … .

Here, the People expressly conditioned the plea offer on defendant’s withdrawal of his constitutional speedy trial motion, while the hearing on this issue was still pending. To make matters worse, the offer was set to expire as soon as the hearing resumed … . This is the type of prosecutorial bartering expressly prohibited as “inherently coercive” in People v Blakley (34 NY2d at 313). A trial court has a core obligation to recognize and prevent such an unfair tactic, but here the court simply reiterated the impermissible condition of the plea and waiver … . People v Wright, 2014 NY Slip Op 04976, 3rd Dept 7-3-14

 

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Prosecutor’s Remarks In Summation Required Reversal

The Third Department determined the prosecutor’s remarks in summation required reversal:

Counsel is afforded wide latitude in advocating for his or her case during summation, but “[t]here are certain well-defined limits” that may not be exceeded … . Here, the prosecutor strayed beyond those parameters by, among other things, repeatedly making remarks that impermissibly shifted the burden of proof from the People to defendant … . He described defense counsel’s summation as “throwing mud,” which he characterized as something done by people who “don’t have a reasonable excuse as to crimes that they’ve committed” — thus not only denigrating the theory of defense, but suggesting that it was defendant’s affirmative burden to present such an excuse. He then averred that nothing in the trial record established that defendant had not committed the alleged acts. * * * He stated that, in order to find defendant not guilty, jurors would have to believe that police officers were engaged in a scheme whereby they staged audio recordings of the controlled buys and planted evidence on defendant to frame him, referencing a comedy skit in which police purportedly got away with mistreating people “by sprinkling drugs on them.” * * *

The prosecutor also repeatedly and improperly expressed his personal opinion in an effort to vouch for the credibility of witnesses …. . When discussing a forensic chemist’s testimony that the substances allegedly sold and possessed by defendant were heroin, the prosecutor stated that the issue was “done” and that it was “a closed case.” He repeatedly described his witnesses as honest or declared that they had told the truth. He told the jury to take the male CI’s word for what had happened during one of the controlled buys, adding that he “believe[d] that [the male CI] was more than credible.”* * *  People v Casanova, 2014 NY Slip Op 04978, 3rd Dept 7-3-14

 

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Court Should Not Have Precluded Expert Evidence About the Quality of Representation Received by Indigent Defendants

The Third Department determined Supreme Court (acting as the trier of fact) should not have precluded the presentation of expert evidence in a case concerning the quality of legal services received by indigent criminal defendants:

Under familiar rules, expert opinions are admissible on subjects involving professional or scientific knowledge or skill not within the range of ordinary training or intelligence” of the trier of fact … . “[T]his principle applies to testimony regarding both ‘the ultimate questions and those of lesser significance'” … . Notably, expert testimony is “appropriate to clarify a wide range of issues calling for the application of accepted professional standards” … .

Here, the experts possess the requisite skill, training, education, knowledge and/or experience to qualify as experts on the operation of indigent defense systems and the evaluation of such systems in light of prevailing professional standards … . * * *

At its core, this litigation is about system-wide conditions relating to and affecting the delivery of public defense — such as caseloads, funding and oversight, among others — and whether these conditions in the defendant counties are such that “the basic constitutional mandate for the provision of counsel to indigent defendants at all critical stages is at risk of being left unmet” … . By virtue of their extensive experience, the experts possess specialized knowledge with respect to the operation of public defense systems, the professional standards applicable to such systems, and the impact of systemic shortcomings on the provision of counsel to indigent criminal defendants at all critical stages. Such particularized knowledge is, manifestly, beyond that of a typical Supreme Court Justice, whose experience is oft confined to case-by-case determinations … . Hurrell-Harring v State of New York 2014 NY Slip Op 05010, 3rd Dept 7-3-14

 

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Unearned Hourly Fees and Contingency Fees Are Not the Property of a Dissolved Law Partnership

The Court of Appeals, in a full-fledged opinion by Judge Read, determined that unearned hourly fees and contingency fees are not the property of a dissolved law firm such that a bankruptcy trustee can reach them on behalf of creditors:

In New York, clients have always enjoyed the “unqualified right to terminate the attorney-client relationship at any time” without any obligation other than to compensate the attorney for “the fair and reasonable value of the completed services” … . In short, no law firm has a property interest in future hourly legal fees because they are “too contingent in nature and speculative to create a present or future property interest” …, given the client's unfettered right to hire and fire counsel. Because client matters are not partnership property, the trustees' reliance on Partnership Law § 4 (4) is misplaced.

… New York courts have never suggested that a law firm owns anything with respect to a client matter other than yet-unpaid compensation for legal services already provided. Appellate Division decisions dealing with unfinished business claims in the context of contingency fee arrangements uniformly conclude that the dissolved partnership is entitled only to the “value” of its services… . Matter of In re: Thelen LLP, 2014 NY Slip Op 04879, CtApp 7-1-14

 

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Defense Counsel’s Failure to Object to Considerable Testimony About Prior Consistent Statements Made by the Victim Concerning Alleged Sexual Abuse Did Not Constitute Ineffective Assistance of Counsel

The Fourth Department, over a strong two-justice dissent, determined defendant’s motion to set aside the verdict based upon ineffective assistance of counsel was properly denied.   The complainant was allowed to describe prior consistent statements she made about the alleged incidents of sexual abuse. In addition, the People’s expert was allowed to testify about those prior consistent statements.  Defendant’s trial counsel did not object to that testimony and she indicated she had no strategic purpose in failing to object.  The majority determined the prior consistent statements were admissible because they completed a narrative.  The dissent noted that no cases supporting the introduction of prior consistent statements to complete a narrative were found.  In the opinion of the dissenters, the prior consistent statements constituted inadmissible bolstering and defense counsel’s failure to object to them constituted ineffective assistance:

… [O]ur dissenting colleagues conclude that defense counsel was ineffective by failing to object to the testimony of the victim that she reported to her mother at age six that defendant had touched her in a sexual manner; that she reported to her sister at age 14 that defendant had raped her; and that she told a police witness and the grand jury what she told the jury during her testimony. We respectfully disagree with that conclusion. Although the dissent correctly notes that the repetition of prior consistent statements may “give to a jury an exaggerated idea of the probative force of a party’s case” … , here, the victim’s testimony constituted a narrative of events. Indeed, she did not repeat the specific allegations of her testimony, i.e., that defendant had engaged in anal penetration … . In light of defense counsel’s opening statement that the relationship between defendant, the victim and the victim’s mother was such that it could “cause someone to make fake allegations,” the narrative of events was relevant. We also disagree with our dissenting colleagues that defense counsel’s failure to object to the prosecutor’s remarks during summation referencing that testimony constitutes ineffective assistance of counsel. Because the remarks were a fair response to defense counsel’s summation challenging the credibility of the victim and her motivation for making the accusations …, we conclude that the failure of defense counsel to object to those comments does not constitute ineffective assistance of counsel … . People v Gross, 2014 NY Slip Op 04592, 4th Dept 6-20-14

 

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Reversible Error to Instruct the Jury On an Affirmative Defense Over Defense Counsel’s Objection

The Fourth Department reversed defendant’s intentional murder conviction because the trial judge, in response to a question from the jury, instructed the jury on the affirmative defense of renunciation over defense counsel’s objection.  The court explained the relevant law:

It is well settled that a court cannot instruct a jury on an affirmative defense where the defendant objects to the instruction … . When a court does so, it impairs a defendant’s “unquestionabl[e] . . . right to chart his [or her] own defense” …; it may “undermine[] the defense chosen by [the] defendant[,] . . . [and] place[] [the] defendant in the midst of contradictory defenses” …; and it indisputably “impose[s] on [the] defendant an affirmative burden of proof he [or she] had not undertaken by his [or her] defense theory” … . The imposition of a burden of proof on a defendant who has not elected to pursue an affirmative defense “constitute[s] an abuse of the affirmative defense in deorgation of [a] defendant’s right to have the State bear the entire burden of proof” … . The 3rd Department has even stated that a court “is without the jurisdiction to, sua sponte, instruct the jury on an affirmative defense or force a defendant to raise such a defense” … .

Where, as here, the defendant has repeatedly advanced only a defense, which carries no burden of proof, “the suggestion that he [or she] had assumed a burden of proof . . . ha[s] the potential to mislead the jury” … . The affirmative defense of renunciation requires a defendant to meet an initial burden of establishing, by a preponderance of the evidence …, that he or she “withdrew from participation in such offense prior to the commission thereof and made a substantial effort to prevent the commission thereof” (Penal Law § 40.10 [1] [emphasis added]). There was no evidence presented at trial that defendant made any effort, let alone a substantial one, to prevent the commission of the murder. The only conclusion the jury could have drawn was that defendant had failed to meet his burden of establishing the affirmative defense. Here…, “[t]he imposition of an affirmative burden of proof over defense objection and the involuntary undermining of the defendant’s chosen defense strategy resulted in serious prejudice that requires reversal”… . People v Brewer, 2014 NY Slip Op 04606, 4th Dept 6-20-14

 

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Party Represented by Counsel at a Scheduled Court Appearance Has Not Failed to Appear

In affirming the termination of mother’s parental rights, the Fourth Department noted that a party who is represented by an attorney at a scheduled court appearance has not failed to appear:

A party who is represented at a scheduled court appearance by an attorney has not failed to appear’ ” … . The mother initially appeared at the fact-finding hearing, and her attorney participated in the hearing by presenting an opening statement and cross-examining the first witness. The mother’s attorney chose not to participate in the remainder of the hearing when the mother left the courtroom after the first witness testified. Inasmuch as the mother’s attorney “appeared at and participated in the hearing” until the mother left the courtroom, “there was no default”… . Matter of Savanna G, 2014 NY Slip Op 04658, 4th Dept 6-20-14

 

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Mother Not Adequately Apprised of Her Right to Counsel—New Hearing Ordered

The Fourth Department determined a new hearing was required because mother was not adequately apprised of her right to counsel:

We agree with the mother that she was denied her right to counsel. The mother was entitled to representation based upon her status as a respondent in a Family Court Act article 6 proceeding and a person alleged to be in willful violation of a court order, and Family Court’s inquiry concerning her decision to proceed pro se was insufficient to enable the court to determine whether she knowingly, intelligently and voluntarily waived her right to counsel… . Matter of Seifert v Pastwick, 2014 NY Slip Op 04677, 4th Dept 6-20-14

 

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Statute of Limitations Starts When the Alleged Malpractice Occurred, Not When Plaintiff Becomes Aware of It/Continuous Representation Doctrine Can Not Be Invoked to Toll Statute of Limitations When Plaintiff Was Notified Representation Was Formally Closed

In affirming the dismissal of an attorney malpractice cause of action, the First Department noted that the cause of action accrued when an appeal was dismissed for lack of prosecution, irrespective of whether the plaintiff was aware of the dismissal.  In addition, the court noted that a letter to the plaintiff which indicated the defendants’ represented of plaintiff was formally closed precluded the plaintiff from relying on the continuous representation doctrine to toll the statute of limitations:

The first cause of action, alleging legal malpractice, accrued at the time that plaintiff’s appeal of the order that granted summary judgment dismissing his underlying Labor Law claims was dismissed for want of prosecution, in July 2006, notwithstanding his lack of knowledge of the dismissal … . Plaintiff then had three years to commence a malpractice action against defendants (see CPLR 214[6]), absent an applicable ground for tolling the limitations period. He did not commence this action until March 2012.

Plaintiff relies on the continuous representation doctrine. However, in June 2008, defendants sent him a letter enclosing the 2nd Department’s affirmance of the underlying judgment and formally closing their representation of him. The letter, which plaintiff did not object to, demonstrates that the parties lacked “a mutual understanding of the need for further representation on the specific subject underlying the malpractice claim” … . Even accepting that defendants concealed from plaintiff the fact that his appeal was dismissed as abandoned, their letter placed him on notice that his attorney-client relationship with them had ended… . McDonald v Edelman & Edelman, PC, 2014 NY Slip Op 04560, 1st Dept 6-19-14

 

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