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Six-Year Delay in Raising Attorney’s Conflict of Interest Waived the Objection​

The Second Department determined plaintiffs six-year delay in moving to disqualify an attorney for the defendants on conflict-of-interest grounds constituted a waiver of any objection to the attorney’s participation.  The court described the legal analysis as follows:

The party seeking to disqualify a law firm or an attorney bears the burden to show sufficient proof to warrant such a determination” …. “Whether to disqualify an attorney is a matter which lies within the sound discretion of the court” … . Where a party seeks to disqualify its adversary’s counsel in the context of ongoing litigation, courts consider when the challenged interests became materially adverse to determine if the party could have moved at an earlier time … . If a party moving for disqualification was aware or should have been aware of the facts underlying an alleged conflict of interest for an extended period of time before bringing the motion, that party may be found to have waived any objection to the other party’s representation… . Hele Asset, LLC v S E E Realty Assoc, 2013 NY Slip Op 03061, 2nd Dept, 5-1-13

 

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Attorney in Assigned Counsel Program Did Not Have Standing To Sue County for More Pay

An attorney who participated in Onondaga County’s Assigned Counsel Program (ACP) sued the county and the program for money damages, claiming he was entitled to more pay for the legal work he had done, and for a declaratory judgment finding that the AVP manual was a nullity because the regulations in the manual usurped the authority of judges to fix assigned-counsel compensation. The Court of Appeals determined the attorney did not have standing to bring the lawsuit. Roulan v County of Onondaga…, No 62, CtApp, 4-30- 13

 

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Conviction Reversed Because of Improper Cross-Examination by Prosecutor; Defendant Questioned About Boyfriend’s Criminal History and Her Employment History

The First Department reversed a conviction because of the prosecutor’s improper cross-examination of the defendant.  The defendant was accused of smuggling a knife to her boyfriend while he was incarcerated.  The defendant was cross-examined about her boyfriend’s gang membership and criminal history and defendant’s periods of unemployment (among other improper topics).  In addressing the cross-examination about defendant’s boyfriend’s criminal history, the First Department wrote:

The criminal history of defendant’s boyfriend was irrelevant to whether defendant “knowingly and unlawfully introduce[d] any dangerous contraband into a detention facility” … . The fact that Wright was a gang member with an extensive criminal history has no bearing on whether or not defendant knew she was introducing dangerous contraband into the facility, and could only serve to inflame the jury and prejudice defendant. As defendant correctly argues, this evidence served “no purpose but to suggest that defendant was associated with a disreputable person” … .People v Bartholomew, 2013 NY Slip Op 02699, 1st Dept, 4-23-13

PROSECUTORIAL MISCONDUCT

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Undue Influence and Constructive Fraud Causes of Action Against Attorney Should Not Have Been Dismissed

The First Department reversed Surrogate’s Court’s dismissal of undue influence and constructive fraud causes of action against an attorney who was the beneficiary of a one million dollar trust account created by the decedent.  In finding questions of fact had been raised concerning both causes of action, in part concerning whether the attorney had misrepresented his financial condition to the decedent, the First Department wrote:

Surrogate’s Court erred in dismissing the claim of undue influence as there were conflicting inferences of both undue influence and the lack thereof. For example, the evidence showed that, from September 2009 to January 2010, as decedent’s health continued to deteriorate, defendant repeatedly wrote and called decedent to request the creation of a $1 million trust account and suggested that he would suffer a financial crisis if he did not receive it, and decedent complained to plaintiff (his wife) that defendant would not stop asking him for money. … Under the circumstances presented, defendant failed to overcome the presumption of undue influence and failed to eliminate any triable issue of fact warranting dismissal of the count ….  * * *  The count of constructive fraud was also improperly dismissed. Defendant, who had a substantial net worth at the time of decedent’s death, nevertheless repeatedly represented that his savings were deteriorating and that he would suffer a financial crisis if decedent did not give him the $1 million. While decedent was aware of the salary paid to defendant over the years as counsel to decedent’s company, this alone did not amount to clear evidence to eliminate any triable issue of fact as to whether defendant had misrepresented his financial condition, and whether decedent relied upon it … .  Matter of Schneiderman, 2013 NY Slip Op 02687, 1st Dept, 4-23-13

 

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Breath Test Results Suppressed Because Defendant Not Informed Her Attorney Had Appeared in the Case Prior to the Test

In a full-fledged opinion by Justice Leventhal, the Second Department affirmed the suppression of a chemical breath-test because the police did not inform the defendant her attorney had appeared in the case before the test was administered.  As Justice Leventhal described the “right to counsel” issue and holding:

This case calls upon us to address a matter of first impression involving the right to counsel under the New York Constitution (see NY Const, art I, § 6), where the defendant consented to a chemical breath test to determine her blood alcohol content (hereinafter BAC), but, prior to the commencement of the test, the police made no effort to inform the defendant that her attorney had appeared in the matter. … [W]e hold that where, as here, the police are aware that an attorney has appeared in a case before the chemical breath test begins, they must make reasonable efforts to inform the motorist of counsel’s appearance if such notification will not substantially interfere with the timely administration of the test. Since the People failed to establish that notifying the defendant of her attorney’s appearance would, in fact, have interfered with the timely administration of the chemical breath test, we conclude that the Supreme Court properly granted that branch of her omnibus motion which was to suppress the results of that test. People v Washington, 2013 NY Slip Op 02600, 2011-07259, Ind No 2510/10, 2nd Dept, 4-17-13

SUPPRESS

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Attorney’s Failure to Investigate Client’s Premises Liability Claim Before Encouraging Settlement Raised Issue of Fact About Malpractice

In this legal malpractice action, the trial court ruled plaintiff had raised issues of fact concerning whether his attorney failed to adequately investigate the plaintiff’s premises liability claim before encouraging the plaintiff to settle.  In affirming the trial court, the First Department noted that the settlement agreement did not bar the legal malpractice action:

For a claim for legal malpractice to be successful, “a plaintiff must establish both that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession which results in actual damages to a plaintiff and that the plaintiff would have succeeded on the merits of the underlying action but for’ the attorney’s negligence” …. A client is not barred from a legal malpractice action where there is a signed “settlement of the underlying action, if it is alleged that the settlement of the action was effectively compelled by the mistakes of counsel” ….   *  *  *

In this specific case, given plaintiff’s lack of sophistication and his limited education, defendant’s statement that he never conducted any investigation, except for speaking to plaintiff for a very limited time, raises a question of fact as to whether defendant adequately informed himself about the facts of the case before he conveyed the settlement offer.  Angeles v Aronsky, 2013 NY Slip Op 02454, 8925, 100091/09, 1st Dept, 4-11-13

 

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Fraud Cause of Action in Legal Malpractice Case Sufficiently Pled

In a legal malpractice action, the Second Department determined the cause of action for fraud should not have been dismissed:

…[T]he Supreme Court erred in granting that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the causes of action alleging fraud. “To properly plead a cause of action to recover damages for fraud, the plaintiff must allege that (1) the defendant made a false representation of fact, (2) the defendant had knowledge of the falsity, (3) the misrepresentation was made in order to induce the plaintiff’s reliance, (4) there was justifiable reliance on the part of the plaintiff, and (5) the plaintiff was injured by the reliance” …. Here, the complaint alleged that the defendants committed fraud by misrepresenting that they “made a motion for a default judgment” when they “never made, filed, or drafted” such a motion, that the plaintiff relied on the misrepresentation, and that the defendants billed the plaintiff for drafting the motion. Those allegations were sufficient to state a cause of action to recover damages for fraud …. Vermont Mut Ins Co v McCabe & Mack, LLP, 2013 NY Slip Op 02392, 2012-00566, Index No 4510/10, 2nd Dept, 4-10-13

 

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Guilty Plea Forfeits All Ineffective Assistance Claims Except those Relating to Plea Bargain

The Second Department noted that a guilty plea forfeits all ineffective assistance claims except those related to the plea-bargaining:
…[T]o the extent that the defendant’s claim of ineffective assistance of counsel does not directly involve the plea-bargaining process, it was forfeited upon his plea of guilty …. ​People v Barrett, 2013 NY Slip Op 02410, 2011-04637, Ind No 1727/10, 2nd Dept 4-10-13

 

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Appeal Found “Frivilous”

In finding an appeal frivolous, the Third Department wrote:

We also are persuaded that defendant’s pursuit of this appeal is frivolous within the meaning of 22 NYCRR 130-1.1 (c) (2) and, therefore, plaintiff is entitled to an award of reasonable counsel fees incurred in responding thereto.  … [O]nce  plaintiff was  awarded  partial summary  judgment  in February 2011 and secured a judgment in its favor, defendant had several permissible options, such as appealing the underlying order and judgment or paying – in full – the amount awarded to plaintiff.  Instead, defendant continued to dispute the sum due by delaying payment, thereby compelling plaintiff to move for the turnover order and, ultimately, to expend resources responding to the instant appeal seeking $825.55.  Such conduct, in our view, warrants an award of reasonable counsel fees incurred in responding to this appeal, and this matter is remitted to Supreme Court for a determination of the amount of such fees … .  Defendant’s remaining arguments, to the extent not specifically addressed, have been considered and found to be  lacking in merit.  Valley Psychological, PC v … Geico, 514672, 3rd Dept 4-4-13

 

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