WHEN EVERYTHING ELSE FAILS SUE THE LAWYERS

"Oral Agreement Unenforceable, Barred By Parol Evidence Rule; Firm Awarded Claim"
                     is the caption on a brief article appearing in the NYLJ on March 20, 2014 and the focal point of this article comes from a discussion of a recently decided case coming from the District Court of Nassau County in a dispute for the non payment of legal fees.

                     At issue is the non enforcement of a claimed prior oral agreement by the client to have been made to limit fees, but admittedly as superceded by a subsequent written agreement executed by the parties which made no mention of any prior agreements as the client alleged.

                    The law firm sued the former client for non-payment of legal fees in a matrimonial matter. In defending the action the former client alleged the existence of an oral agreement to cap legal fees at $6,000.00.

                     The law firm denied the same and referred to the express terms of the written retain which did not provide for a cap on legal. The client did not deny having signed the written retainer which made no mention of any prior oral agreement, but defended the claim on the basis of a prior oral agreement limiting the fees to be charged.

                     The Court relied on the application of Parole Evidence Doctrine precluding the introduction any evidence which would contradict the express terms of the written retainer because the terms of the written retainer were complete and not ambiguous , AND explicitly provided in the written retainer that "no other" agreements or terms that were effective other than what was provided for in the written retainer.

                       Caveat - read what you say you have read before you sign the document which states that is exactly what you are doing.  
- March 20, 2014

DUAL REPRESENTATION MAY CREATE CONFLICTS

Ending the month of February 2014 another article published in the NYLJ provided some insight into the continued problems which arise when dual represenation issues appear to have been compromised.

From a procedural perspective - even if factually demonstrated at a subsequent stage of the litigation to be without support, the appearance of that posture will operate as a  hurdle not capable of resolution without a trial on the issues.

A Manhattan judge has refused to dismiss a legal malpractice suit against a prominent KIngs County firm thereby mandating that the resolution of that issue had to be decided at a trial of the matter as the submissions before the motion court were not sufficient to resolve the issue in a case in which it was alleged that the law firm had a conflict of interest by representing two parties in a dispute among siblings that resulted in damages to the plaintiffs.

The Court in that case ruled  that

"a conflict of interest as a result of dual representation of clients in violation of professional responsibility rules, does not alone support a legal malpractice claim. But liability can follow when the client proves actual damages as a result of the conflict." 

 In denying the motion by the law firm to dismiss the Court found that  the  former clients could maintain a legal malpractice could proceed based on the allegations that  the law firm used their dual representation to aid and abet one client against another  and the aiding and abetting causes of action plead sufficient allegations that  the law firm  knowingly gave advice  in violation of an apparent conflict of interest.

It is said that  "no man can serve two masters." - and this continues to be  the cornerstone to this prohibition because in a dual representation situation, advising one client may result in injury to another, and in rendering advise in that circumstance would then open a lawyer up to liability

In fact even when clients are given proper notice  that a dual representation situation occurs, and the client(s) want to consent to continued represenation, the attorney may no longer be able to provide adequate representation and there may be no alternatifve other than calling for the attorney to withdraw in toto.  

In the case under discussioin the defendant's application to dismiss could not be granted,  at this procedural posture of the case,  because of the outstanding issues of fact undecided at the motion stage of the litigation.    

This posture could have been avoided.