Legal Malpractice

Judges Engaging in Legal Malpractice Litigation

By (Andrew Lavoott Bluestone)

What happens when Judges hire attorneys to litigate election law matters?  The same thing that happens when ordinary people litigate.  Some litigations end in legal malpractice cases.  That is true of Simpson v Alter ; 2010 NY Slip Op 08089 ; Decided on November 9, 2010 ;Appellate Division, Second Department.   

In this follow up to the election battle between the Hon. ShawnDya L. Simpson and the Hon. Diana Johnson Judge Simpson sues her election law attorney Bernard Simpson after he had represented Simpson and the Johnson.  Did he impart confidential client information from one to the other?

More in this case will follow, ad the Court affirmed the lower court's denial of a dismissal motion based upon collateral estoppel.

"The Supreme Court properly denied that branch of the appellants' motion which was to dismiss the complaint insofar as asserted against them pursuant to CPLR 3211(a)(5) based upon the doctrine of collateral estoppel. The doctrine of collateral estoppel bars relitigation of an issue which has necessarily been decided in a prior action and is determinative of the issues raised in the present action, provided that there was a full and fair opportunity to contest the decision now alleged to be controlling (see Tydings v Greenfield, Stein & Senior, LLP, 11 NY3d 195, 199; Buechel v Bain, 97 NY2d 295, 303-304, cert denied sub nom. Buechel v Bain, 535 US 1096; Mahler v Campagna, 60 AD3d 1009, 1011). Preclusive effect may only be given to issues that were "actually litigated, squarely addressed and specifically decided" (Ross v Medical Liab. Mut. Ins. Co., 75 NY2d 825; see Motors Ins. Corp. v Mautone, 41 AD3d 800, 801). Here, the appellants failed to establish that the issue of whether the appellant Bernard M. Alter (hereinafter Alter) breached his duty to the plaintiff by divulging confidential information which she allegedly imparted to him when he was her attorney in 2003 was actually litigated, squarely addressed, and specifically decided in a prior 2007 proceeding pursuant to Election Law article 16, in which Alter represented candidate Diana Johnson in her challenge to the plaintiff's residency. "

Full post as published by New York Attorney Malpractice Blog on November 16, 2010 (boomark / email).