Wiley Rein and Blackwater Legal Malpractice Case Ends

Law.Com reports that the Wiley Rein legal malpractice case has been dismissed. This was a case with major players: "The Wiley team that defended Blackwater in the underlying case consisted of Fred Fielding, now White House counsel; Barbara Van Gelder, now a partner at Morgan, Lewis & Bockius; Scott McCaleb, still a partner at Wiley; and Margaret Ryan, now a judge for the U.S. Court of Appeals for the Armed Forces. Blackwater's malpractice suit named Ryan as a separate defendant because, according to the complaint, she led the defense team."

Blackwater is a major player in the Iraq war, and this case involved a wrongful death in Fallujah.  Images of Blackwater contract employees being dragged behind trucks through the streets was a strong and sickening sight.

"Blackwater sued the Washington law firm in January, alleging that Wiley lawyers neglected critical case law and statutes while defending it in a 2005 wrongful death case brought on behalf of four Blackwater guards brutally killed in Fallujah, Iraq, in 2004. "

In the malpractice complaint, Blackwater argued the wrongful death suit would have been dismissed if it were heard in federal court, where the defense could have relied on similar cases where claims against battlefield contractors were thrown out. But the 2005 case was kept in Wake County Superior Court in North Carolina, despite a motion filed by the Wiley team to get it moved to the U.S. District Court for the Eastern District of North Carolina. The malpractice complaint alleged the motion failed predominantly because the Wiley lawyers didn't invoke the federal officer removal statute, which gives federal jurisdiction to claims involving federal officers.

Wiley's motion to dismiss the malpractice suit argued that Blackwater could not have been considered a "federal officer" in the underlying case because the guards who were murdered did not contract directly with the U.S. government, were not providing security for U.S. military personnel, and were not overseen by the U.S. military.
In her five-page order, Retchin said Blackwater's claim that it was entitled to remove the wrongful death case to federal court under the federal officer removal statute where "dismissal was the only appropriate remedy" were "legal conclusion[s] couched as factual allegation[s]."

"I would not have signed it" defeats Legal Malpractice Case

A frequent defense in legal malpractice is that while a mistake has been made, plaintiff is not hury anyway.  Here is one example of that defense in a New Jersey Case.  THE MAKE UP BAR, Inc.Plaintiff-Appellant, vs. COOPER, LEVENSON, APRIL, NIEDELMAN & WAGENHEIM, P.A., and ROBERT E. SALAD, ESQ.,

A hair stylist is hired by plaintiff, and plaintiff asks its attorney to prepare a "no-hire" agreement.  Instead, a "no-solicitation" agreement is prepared.  Is there a difference?

"Severino, a hairdresser, claims that she retained attorney Salad to draft a "no-hire" agreement for execution by Scerati, a hairdresser whom she had agreed to employ for a short period until his own salon, Blink Spa, was opened. Instead, she claims Salad drafted a "non-solicitation" agreement, which proved effectively unenforceable when, in an injunctive action filed by The Make-up Bar against Scerati in the Chancery Division after four of The Make-up Bar's employees had found employment at Scerati's salon, each certified that he or she had not been solicited by Scerati. Scerati corroborated the employees' position in his own certification, and he stated additionally that he would not have signed a no-hire agreement if it had been presented to him. The action filed against Scerati was dismissed without prejudice with Severino's consent.

In its complaint, plaintiff simply alleged that it "suffered damages" and "substantial business losses" as a result of defendants' failure to draft an appropriate agreement that would enjoin Scerati from hiring plaintiff's employees for a certain period of time. In support of its claim, plaintiff provided a single-page submission of handwritten calculations that purported to identify the revenue generated by the four employees during 2001 and 2002. Plaintiff's only expert, attorney Barry E. Levine, provided a report completely devoid of any assessment of damages. Levine testified that he was unaware of the attrition rate of beauty salon employees and that he had performed no investigation into the matter, formal or otherwise. Further, neither Severino nor Levine, as lay and expert witnesses, produced evidence of the specific business diverted to the other salon by its hiring of plaintiff's four former employees. Plaintiff failed to identify which customers, if any, followed the employees to the other salon and which customers continued to patronize it. Moreover, plaintiff did not commission any analysis or comparison of profits generated or clients lost before and after the employees left plaintiff salon. In opposition to defendants' motion, plaintiff merely set forth that it was damaged in the amount noted in Severino's handwritten exhibit.
Plaintiff filed its complaint for legal malpractice on February 13, 2004. Following the reversal of the first summary judgment and remand to the trial court, defendants renewed their motion for summary judgment after additional discovery. As in its first motion for summary judgment, defendants conceded for purposes of the motion that they failed to prepare the agreement that Severino requested. In support of their motion, Scerati certified that he would not have signed a more restrictive agreement. "

Texas and Disclosure of Legal Malpractice Insurance

This article from the Southeast Texas Record amplifies the current debate there over mandatory disclosure of legal malpractice coverage.  "There's a movement in Austin to change this. Last week, a state Supreme Court task force voted down a measure to require Texas lawyers who don't carry malpractice insurance to tell potential clients beforehand. Supporters plan to keep trying; next month they'll take their idea to the Texas Bar's Board of Directors."

"Predictably, lawyers are crying foul. In a lawyer poll--80,000 are licensed to practice law in Texas--70 percent opposed the idea, using arguments that wreak of irony if not hilarity.

Some lawyers contend letting clients know they are insured will prompt clients to--get this--sue them. "It's.. like painting a target on your back," complained Plano attorney Charles Awalt, as quoted in the Austin American-Statesman. Then there's the cost. Paying a few hundred to a few thousand dollars per year in premiums, many solo practitioners say they cannot afford to insure themselves and stay in business. "