If attorney has violated a disciplinary rule…

If an attorney has been determined to have violated a disciplinary rule, the client may seek to have the attorney’s fees forfeited. In Baugher v Cullen and Dykman, LLP, 173 AD3d 959 [2d Dept 2019], court held:

“ An attorney who violates a disciplinary rule may be discharged for cause and is not entitled to fees for any services rendered ” (Jay Deitz & Assoc. of Nassau County, Ltd. v. Breslow & Walker, LLP, 153 A.D.3d 503, 506, 59 N.Y.S.3d 443; seeMatter of Montgomery, 272 N.Y. 323, 326, 6 N.E.2d 40; Saint Annes Dev. Co. v. Batista, 165 A.D.3d 997, 998, 85 N.Y.S.3d 145; Doviak v. Finkelstein & Partners, LLP, 90 A.D.3d 696, 699, 934 N.Y.S.2d 467; Quinn v. Walsh, 18 A.D.3d 638, 795 N.Y.S.2d 647; Brill v. Friends World Coll., 133 A.D.2d 729, 520 N.Y.S.2d 160). A cause of action for forfeiture of legal fees based on an attorney’s discharge for cause due to ethical violations may be maintained independent of a cause of action alleging legal malpractice or breach of fiduciary duty, and does not require proof or allegations of damages (seeJay Deitz & Assoc. of Nassau County, Ltd. v. Breslow & Walker, LLP, 153 A.D.3d at 506, 59 N.Y.S.3d 443; Ulico Cas. Co. v. Wilson, Elser, Moskowitz, Edelman & Dicker, 56 A.D.3d 1, 865 N.Y.S.2d 14).

R. A. Klass
Your Court Street Lawyer

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Plaintiff claimed attorney malpracticed with regard to a settlement

In Freeman v Brecher, 2017 NY Slip Op 07949 [1st Dept Nov. 14, 2017], the plaintiff claimed that the attorney malpracticed with regard to a settlement. In affirming the dismissal of the case, the appellate court held that,

“ Plaintiff’s claim for legal malpractice in connection with an underlying settlement fails to state a cause of action in the absence of allegations that the “settlement … was effectively compelled by the mistakes of [defendant] counsel” (Bernstein v. Oppenheim & Co., 160 A.D.2d 428, 430, 554 N.Y.S.2d 487 [1st Dept.1990] ) or the result of fraud or coercion (see Beattie v. Brown & Wood, 243 A.D.2d 395, 663 N.Y.S.2d 199 [1st Dept.1997] ). Plaintiff’s equivocal denial of knowledge of the terms of the settlement is flatly contradicted by the clear terms of the settlement agreement (see Bishop v. Maurer, 33 A.D.3d 497, 499, 823 N.Y.S.2d 366 [1st Dept.2006], affd. 9 N.Y.3d 910, 844 N.Y.S.2d 165, 875 N.E.2d 883 [2007] ). Additionally, plaintiff’s speculative and conclusory allegations of proximately caused damages cannot serve as a basis for a legal malpractice claim (see Pellegrino v. File, 291 A.D.2d 60, 63, 738 N.Y.S.2d 320 [1st Dept.2002], lv. denied 98 N.Y.2d 606, 746 N.Y.S.2d 456, 774 N.E.2d 221 [2002] ). Plaintiff’s cause of action for breach of fiduciary duty arising from the same conduct was correctly dismissed as duplicative of the legal malpractice claim (see Garnett v. Fox, Horan & Camerini, LLP, 82 A.D.3d 435, 436, 918 N.Y.S.2d 79 [1st Dept.2011]; InKine Pharm. Co. v. Coleman, 305 A.D.2d 151, 152, 759 N.Y.S.2d 62 [1st Dept.2003] ). ”

 

– R. A. Klass
Your Court Street Lawyer

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Employee breach of good faith and loyalty

Appellate Division Second Department case law is clear that “an employee owes a duty of good faith and loyalty to an employer in the performance of the employee’s duties.”  Is. Sports Physical Therapy v. Burns, 84 AD3d 878, 878 [2d Dept 2011].

While there is duty of good faith and loyalty owed to an employer, “an employee may create a competing business prior to leaving her or his employer without breaching any fiduciary duty unless she or he makes improper use of the employer’s time, facilities or proprietary secrets in doing so.” Is. Sports Physical Therapy v. Burns, 84 AD3d 878, 878 (2d Dept 2011) (citing Schneider Leasing Plus v. Stallone, 172 A.D.2d 739, 741, 569 N.Y.S.2d 126).

A common example of a breach of a duty of good faith and loyalty is when an employee solicits his or her employer’s customers or otherwise compete during the course of his or her employment with the employer by the use of the employer’s time, facilities or proprietary information.  30 FPS Productions, Inc. v. Livolsi, 68 AD3d 1101, 1102 [2d Dept 2009]; A & L Scientific Corp. v. Latmore, 265 AD2d 355, 355 [2d Dept 1999}; Schneider Leasing Plus, Inc. v. Stallone, 172 AD2d 739 [2d Dept 1991].

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Service to the New York Bar Association: Klass awarded

Emily Franchina poses with Richard Klass for a photo as he is awarded plaque for his service as Chair, New York State Bar Association, General Practice Section 2014-2015.

For Service to the New York State Bar Association

Emily Franchina, Esq. presents Richard Klass, Esq. with an award for his service as Chair, New York State Bar Association, General Practice Section 2014-2015.
 

Pay the Worker on the Day He (or She) Works

Rosie the Riveter with slogan " We Can Do It. " Woman with red and white polka dot kerchief on head, blue work shirt, fist raised, showing muscle, in front of yellow background.

This guiding principle is so important that it is laid out in several passages throughout the Bible. It is incumbent upon an employer to pay the wages of its employees on a timely basis. If the employer does not pay its employees, New York State law provides employees with significant remedies, including an entitlement to monetary penalties against the employer over and above the unpaid wages and the recovery of attorney’s fees.

Some teachers in a private religious school were not paid their salaries for several months. The school’s administration claimed that, due to the nonpayment of tuition by a large number of the parent body, the school could not pay these teachers. In the meantime, however, the school continued to pay some of its teachers, business-as-usual. One of the teachers who was not paid her salary hired Richard A. Klass, Your Court Street Lawyer, to help recover her unpaid wages.

100% liquidated damages under NY’s labor law

An action was brought on behalf of the teacher against the private religious school for the unpaid wages. The complaint also sought the additional amount of liquidated damages that may be awarded to an employee for wages owed by an employer on an unpaid wage claim. The entitlement to this additional element of damages (“equal to 100% of the total amount of the wages found to be due”) and reasonable attorney’s fees are provided for in New York State Labor Law Section 198(1-a). Specifically, Labor Law Section 198(1-a) provides, in relevant part:

In any action instituted in the courts upon a wage claim by an employee or the commissioner in which the employee prevails, the court shall allow such employee to recover the full amount of any underpayment, all reasonable attorney’s fees, prejudgment interest as required under the civil practice law and rules, and, unless the employer proves a good faith basis to believe that its underpayment of wages was in compliance with the law, an additional amount as liquidated damages equal to one hundred percent of the total amount of the wages found to be due.

Under the above statute, an employer must be able to prove that it had a “good faith basis” to believe that its failure to pay its employees was in compliance with the law in order to avoid an award of liquidated damages. In this case, it was urged that the school had no valid basis for not paying its teachers.

Religious school can be sued in secular court

The religious school argued that the Establishment Clause of the United States Constitution (separation of church and state) barred the government’s excessive entanglement in religion—in essence, stating that this dispute belonged in a rabbinical court. In response to this argument, it was urged that this case was not about religion; it was squarely and fundamentally about the breach of an employment contract.

Courts can apply ‘neutral principles of law’ to dispute

Respecting the place of religion in American society, courts will generally decline to involve themselves in disputes involving religious institutions except under limited circumstances. New York State’s highest court, the Court of Appeals, in Congregation Yetev Lev D’Satmar, Inc. v. Kahan, held that where the matter to be decided does not involve questions of discipline and doctrine but is a temporal matter, a court may inquire and consider the same in the light of the civil contractual rights and obligations of the parties. The Court of Appeals stated, “Civil disputes involving religious parties or institutions may be adjudicated without offending the First Amendment as long as neutral principles of law are the basis for their resolution (see First Presbyterian Church of Schenectady v. United Presbyterian Church in the United States of America). The “neutral principles of law” approach requires the court to apply objective, well-established principles of secular law to the issues.”
In Saffra v. Rockwood Park Jewish Center, Inc., the court held that issues surrounding a rabbi’s employment agreement with a synagogue were not an ecclesiastical matter but rather a matter dealing with a “mundane” contract to be construed by a court. New York law recognizes that “a religious corporation is liable on its contracts the same as any other corporation and, generally, questions concerning the contractual liability of a religious corporation are controlled by the principles governing the contractual powers and liability of corporations generally.” See, 92 N.Y. Jur.2d Religious Organizations, Section 16. Accordingly, the fact that the school was a religious school would be irrelevant to its liability for breaching its contractual obligations to its teachers for unpaid wages.
There were no religious issues or doctrines presented in this case; the action was brought solely to enforce the teacher’s contract rights to recover her unpaid wages for the period of time that she had already performed under her teaching contract. Faced with the arguments put forth by the teacher, the school relented and paid over $23,000 of back wages owed to the teacher, along with all of her legal fees and expenses.
by Richard A. Klass, Esq.

———–
copyr. 2014 Richard A. Klass, Esq.
The firm’s website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation in Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-ml to RichKlass@courtstreetlaw.com with any questions.
Prior results do not guarantee a similar outcome.

Credits: Photo of Richard Klass by Robert Matson, copyr. Richard A. Klass, 2011.
Marketing services by The Innovation Works, Inc. www.TheInnovationWorks.com.

Image on page one: We can do it!, ca. 1942 – ca. 1943; Creator(s): Office for Emergency Management. War Production Board.

Seminar Announcement: “Nuts and Bolts of Collection Law”

In early November, Richard Klass will help present a seminar entitled The Nuts and Bolts of Collection Law.  This seminar, presented by the National Business Institute, will take place at the Hyatt Place Garden City, in Garden City, New York.  Information follows.
Nuts and Bolts of Collection Law Date: Wednesday, November 09, 2011Time: 9:00 am-4:30 pmLocation:
Hyatt Place Garden City 5 North Avenue Garden City, NYFacility Phone: 516-222-6277NBI Product ID#: 57049ER
For more information and to register, click this link:
http://www.nbi-sems.com/SemTeleDetails.aspx/R-57049ER%7C?ctname=SPKEM
Program DescriptionEnsure Your Clients Get Paid Winning a judgment against a bad debt doesn’t necessarily mean cash in hand. Do you have a firm grasp of the procedures for legally collecting that debt? Are your recovery actions in compliance with the strict guidelines governing collection? Don’t rush in unprepared. Maximize your chances for recovery with the practical steps provided in this strategic seminar. Enroll today!
  • Avoid collection activities that violate the FDCPA and/or state laws.
  • Learn best practices for discovering debtor assets both pre- and post-judgment.
  • Recognize what provisional and final remedies are available to creditors to collect what is owed.
  • Walk through the procedural steps for executing wage garnishments, judgment liens, attachments and other methods of collection.
  • Know the creditor’s rights when collecting debt and when the debtor files for bankruptcy.
 
Who Should Attend This basic-to-intermediate level seminar is primarily designed for attorneys and other legal professionals. Those who may also benefit from the collection techniques provided include: collection and loan officers, accounts receivable personnel, credit managers, bankers and controllers.Course Content
  1. The Fair Debt Collection Practices Act (FDCPA) and State Collection Laws
  2. Ethical Issues in Collection
  3. How to Find Debtors and Their Assets
  4. Obtaining a Judgment: A Procedural Guide
  5. Collecting a Judgment: A Procedural Guide
  6. Creditors’ Rights When a Debtor Files Bankruptcy
Continuing Education Credits:
Continuing Legal Education CLE 7.20 – NJ CLE 7.00 – NY*
Continuing Professional Education for Accountants
CPE for Accountants: 7.00Institute of Certified Bankers
ICB: 6.75** denotes specialty creditsAgendaTHE FAIR DEBT COLLECTION PRACTICES ACT (FDCPA) AND STATE COLLECTION LAWS
9:00 – 9:45, Richard A. Klass
Scope of the FDCPA Understanding the Actions Permitted or Restricted by the Act Demand Letters: Pitfalls to Avoid Liability and Defenses State Collection Laws and Their Application/Preemption
ETHICAL ISSUES IN COLLECTION
9:45 – 10:45, Richard A. Klass Communication With Clients and Other Parties Disclosure Issues Aggressive Collection Practices Unauthorized Practice of Law Reporting Professional Misconduct
HOW TO FIND DEBTORS AND THEIR ASSETS
11:00 – 12:00, Michael Cardello III Prejudgment Discovery Methods Personal vs. Business Assets Replevin/Self-Help Repossession Considerations
OBTAINING A JUDGMENT: A PROCEDURAL GUIDE
1:00 – 2:00, Michael Cardello III Filing the Lawsuit Service of Process Affirmative Defenses and Counterclaims Judgments (Default, Summary, etc.)
COLLECTING A JUDGMENT: A PROCEDURAL GUIDE
2:15 – 3:15, Kenneth H. Wurman Post-Judgment Discovery Judgment Liens Wage and Bank Account Garnishment Attachments Writ of Execution/Seize and Sale by Sheriff Charging Orders Debtor Slow-Pay Motions Turnover/Receivership Exemptions by Debtors Dealing With Fraudulent Transfers
CREDITORS’ RIGHTS WHEN A DEBTOR FILES BANKRUPTCY
3:15 – 4:30, Michael D. BrofmanSpeakersRICHARD A. KLASS is an attorney in the Brooklyn office of Your Court Street Lawyer. Mr. Klass is an arbitrator for the small claims part of the civil court of the City of New York, County of Kings. He practices in the areas of collections, bankruptcy, debtor and creditor, commercial litigation, legal malpractice, medical malpractice, personal injury, real estate condominium law, family law, divorce, child custody and private placement adoption law, wills, probate, trusts and estates. Mr. Klass has written numerous articles and has lectured frequently for the Brooklyn Bar Association and New York County Lawyers Association, as well as other professional groups and organizations. Mr. Klass is a member of The American Association for Justice, the New York State Bar Association, the New York County Lawyers Association (chair, The Mentoring Program, Group Mentoring Program) and the Brooklyn Volunteer Lawyers Project (Pro Bono Counsel). He earned his B.A. degree from Hofstra University and his J.D. degree from New York Law School.MICHAEL D. BROFMAN is a member in the New Hyde Park law firm of Weiss & Zarett P.C., where he practices in the areas of bankruptcy law, debtor/creditor rights, non-judicial workouts and commercial litigation. He has lectured for the Nassau County and New York State bar associations on topics relating to his areas of practice, and is a frequent lecturer for National Business Institute on bankruptcy and secured creditor topics. He is a member of the Nassau County (member, Bankruptcy and Bank sections) and the New York State (member, Committee on Bankruptcy Law and General Practice Section) bar associations, the American Bankruptcy Institute and the Volunteer Lawyer’s Project Pro Bono Bankruptcy Panel. Mr. Brofman earned his B.A. degree from the State University of New York at Binghamton and his J.D. degree from Fordham University.MICHAEL CARDELLO III is a partner in the Litigation Department of Moritt Hock & Hamroff LLP, concentrating in business and commercial litigation. Mr. Cardello represents large and small businesses, financial institutions and individuals in federal and state courts. He has a wide range of experience that includes trials and appellate work in the areas of corporate disputes, shareholder derivative actions, dissolutions, construction disputes, equipment and vehicle leasing disputes and other complex commercial and business disputes. Mr. Cardello earned his B.A. degree in marketing, his M.B.A. degree in finance and his J.D. degree from Hofstra University. While in law school, he was associate editor of the Hofstra Law Review. Mr. Cardello is the current vice-chairman of the Commercial Litigation Committee of the Nassau County Bar Association and also is a member of the Alternative Dispute Resolution and Securities Committee of the Nassau County Bar Association. He lectures on discovery, trial practice, equipment and vehicle leasing issues and e-discovery.KENNETH H. WURMAN is a partner in the law firm of Naidich Wurman Birnbaum & Maday, LLP, where his practice areas, for more than 30 years, include collections and real estate. Mr. Wurman is a lecturer for National Business Institute on collection matters. He earned his B.S. degree from the State University of New York at Albany and his J.D. degree from New England School of Law. Mr. Wurman is a member of the Nassau County and New York State bar associations.
For more information and to register, click this link:
http://www.nbi-sems.com/SemTeleDetails.aspx/R-57049ER%7C?ctname=SPKEM
———–copyr. 2011 Richard A. Klass, Esq.The firm’s website: www.CourtStreetLaw.com Richard A. Klass, Esq., maintains a law firm engaged in civil litigation at 16 Court Street, 28th Floor, Brooklyn Heights, New York.He may be reached at (718) COURT-ST or e-ml to RichKlass@courtstreetlaw.com with any questions.Prior results do not guarantee a similar outcome.

R. A. Klass Your Court Street Lawyer

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