WHEN ALL ELSE FAILS SOMETIMES LAWYERS SUE CLIENTS

Disclosure is a two way street when parties come to meet and arrive at a working relationship.

A client has a right to reasonably demand that the explicit and implicit represenations of the attorney are materially correctly stated so that an informed consent to retain the attorney or law firm is properly made. 

But what happens when a client materially makes a false statement to induce the attorney to accept the engagement of work being requested by the client?

Well a recent published case suggests a remedy exists and is published today in the New York Law Journal  (February 28, 2014 see pages 1 col 5-6 and page 8 col 1-4)    This case currently is pending in Supreme Court New York County and the headline reads
 

" Proskauer Sues Ex-Client Accusing Firm of Malpractice
After its former client sued the firm for malpractice, Proskauer Rose and four of its partners have sued the client's senior executives, claiming they solicited legal advice based on "materially false...representations" and have harmed the firm's reputation with their "meritless" claims.
The heart of the New York Law Journal’s analysis of Proskauer’s claims is found in the following paragraphs:

"Upon information and belief, OSG was in fact not conducting a search of its documents and Edelson knowingly misrepresented otherwise to Samuels. Edelson knew, and intended, that Proskauer would rely on his false representations," Proskauer said. [emphasis addied]. 
In May 2011, Proskauer provided Edelson and Itkin with a first draft of its memo, which argued that available evidence supported that the parties had not intended to make the OIN subsidiary a guarantor of OSG, according to the firm. In follow-up discussions, Edelson and Itkin did not suggest to Proskauer that the argument's premises were false, the suit said. [emphasis added].
According to Proskauer, Edelson "knowingly deceived" the firm into drafting the memo, "in an attempt to disguise OSG's enormous tax problem while the company was in the midst of a financially uncertain situation." [emphasis added]. Proskauer’s claim appears to be that its former client made "materially false and misleading representations" to it during the term of its representation.

It is then alleged that in the absence of truthful representations concerning  its ex-client’s circumstances, Proskauer was unable to provide adequate representation.

The lack of client information led to inadequate representation that ultimately harmed the ex-client’s interests. Proskauer was sued for legal malpractice, but  successfully defended the legal malpractice claims at  substantial econmic costs and damages to it's reputation.  

While the extract from this published article may be that a retainer agreement should include all material facts, i.e., true facts, provided by a client, upon which an attorney is intended to rely upon during the course of the representation the journey is a two way street calling not only for disclosure by a client, but reliance by a client on the material represntations made by the attorney or law firm inducing the execution of the retainer agreement as well.

Is it reasonable to  demand that a  client (and an attorney)  must provide all facts related to thei legal issue in order for their attorney to adequately represent and protect their interest -  and the attorney or law firm must be required to represent the skills and wherewithall necessary to perform the work required to be done as such matters are material disclosures which should be required in every agreement between an attorney and client.

　

Timing is everything.

Generally a claim for legal malpractice commences when the malfeasance is committed and an action to recover must be filed within three years of that event.

But if the attorney continues to represent the client on that matter the three year statute would not commence until the time when the attorney client relatonship ceases.   It is from that time when the three year statute would begin to run.

Sometimes the malfesance is concealed by the attorney. 

When an attorney conceals the errors of malfeasance the three year statute of limitations would not begin to run in such facts of malfeasance are disclosed.

The fact that the attorney client relationship ceased would not be a bar to the three year statute of limitations  if the material facts are concealed from the client by the attorney.  The time limitation would not run until the time of discovery of the concealment.

But what about a client who has been conconvicted of a crime and sentenced. 

If an attorney commits an error in representing an individual in a criminal cases which results in the wrongful conviction of the client the time within which to proceed to recover damages for the negligent actions is not limited to three years.

If the judgment of conviction is reversed - the malfeasance of the defense attorney is not shielded by a three year statute.  

The time to commence a claim for legal malpractice arises at the time when the
judgment of conviction is reversed. 

And that is as it should be for to do otherwise would be to perpectrate an unjust result for to an individual who was otherwise innocent "but for" the malfeasance of the attorney whose errors proximately caused an unlawful confiction.  

The road to recovery in a criminal legal malpractice action is not an easy road to travel, but a time limitation created at the time when the judgment of conviction is vacated creates a window permitting an action to proceed.





ealment would not be a bar to commencing a claim for legal malpractice until the time when the concealment becomes known.