Published on:

The lawyer asserts that he was never served with a copy of the justice’s order

This is an action for a declaratory judgment of an insurance company that is obligated to defend and indemnify the complainant lawyer under the lawyer’s professional liability insurance policy. The complainant is an attorney whose practice is concentrated primarily in criminal defense. A man was indicted and charged with various counts of sodomy in the first degree and related crimes arising from forcible sex crimes conduct with his daughter. The complainant lawyer was retained to represent the man on the said charges.

Against the complainant lawyer’s advice, the man waived his right on the indictment and proceeded to trial. At trial, the victim gave detailed testimony of sexual abuse by her father. The court also called a physician who testified concerning her examination of the victim’s genital area. The doctor magnifies the genital area and prepares certain photographs or slides. The doctor also testified as to her findings which reveal that the victim had suffered penetrating trauma to the anus and the vagina.

Additionally, the court called a clinical psychologist who testified about child sexual abuse accommodation syndrome. According to the psychologist, children who are abused frequently do not disclose the violence until adolescence. The purpose of the testimony was to explain why the victim failed to report the abuse for a number of years.

Consequently, the man was convicted of all charges. He was sentenced on three of the molestation charges to consecutive indeterminate terms of 12 1/2 to 25 years, with the sentences on other charges to run concurrently.

The man, represented by other counsel, appealed to the appellate division on the ground of ineffective assistance of counsel. The appellate division reduced the sentences on the sodomy charges to the maximum legal sentence of 8 1/3 to 25 years, and otherwise affirmed the decision of conviction. Later, the court of appeals denied leave to appeal from the order of the appellate division affirming the decision of conviction.

Afterward, while the appeal was pending, the man moved to vacate the decision on the ground of ineffective assistance of counsel. In support of the motion, the man’s counsel presented facts outside the trial record, including the availability of favorable expert testimony that might have discredited the case. Subsequently, the court denied the motion to vacate the decision.

The man then filed a petition alleging deprivation of his right to the effective assistance of counsel. The court then granted the man’s petition on the grounds of ineffective assistance of counsel.

The man further commenced a legal malpractice action against various opponents. He then obtained a professional liability insurance policy. The policy provides coverage for acts or omissions that occur during the policy period, and those that occurred prior to the policy period.

The man also commenced the present action, seeking a declaratory judgment that the insurance company is obligated to defend and indemnify his former lawyer in the underlying malpractice action.

By order, the justice denied the man’s motion action for partial decision on the issue of the man’s malpractice liability. The court reasoned that the man had no opportunity in federal court to litigate the quality of his legal services and the issues of ineffective assistance and attorney malpractice were not identical.

The insurance company also moves to request for a decision declaring that it has no obligation to defend or indemnify the lawyer in the underlying malpractice action. The insurance company requests a further declaration that it has no duty to pay any of the benefits of the policy to the man.

The lawyer cross-moves the request that the insurer is obligated to defend and indemnify him. He argues that the man did not have a claim for legal malpractice, when the court dismissed the criminal charges against him. He further argues that he had no basis to believe that he had breached a professional duty until the malpractice complaint was served.

The man also cross-moves the request declaring that the insurer is obligated to indemnify the lawyer. The man argues that the lawyer’s notice to the insurance company was timely. Alternatively, the man argues that a late notice defense may not be asserted against the injured party. The court understands the man’s motion as requesting a declaration that his notice to the insurance company was timely.

The complainant lawyer argues that the case is unique because the malpractice claim arises from representation in the case. He also suggests that because of the client’s heavy burden of proof in a legal malpractice action, the attorney need not notify his insurer of a potential claim until the attorney is served with a summons and a legal malpractice complaint.

The opponent asserts that when the lawyer signed his federal court affidavit, he was aware of the specific, detailed allegations concerning the deficiencies in his representation. Thus, the opponent argues that the lawyer reasonably should have given notice of a potential claim at the time.

The lawyer asserts that he was never served with a copy of the justice’s order and, although he learned informally that the federal habeas motion had been granted, he was not aware of the court’s specific findings. The lawyer further asserts that he was informed by an assistant district attorney that the victim intended to retry the man, if their appeal to the second circuit was not successful. The lawyer may not have known the details of the judge’s ruling, or its likelihood of being affirmed by the court of appeals. However, he was clearly on notice that his representation had been held inadequate according to the federal constitutional standard. Nevertheless, the lawyer argues his failure to give notice to the insurer was reasonable because a federal determination of ineffective assistance is not equal to a potential malpractice claim.

Since the lawyer was aware that his representation was found to have fallen short of the federal standard, he does not have a reasonable excuse for failing to give notice of a potential malpractice claim. The insurance company’s motion for decision is granted to the extent of declaring that it has no obligation to defend or indemnify the lawyer with respect to the underlying malpractice action. The lawyer’s cross-motion requesting a declaration that the insurer is obligated to defend and indemnify him is denied.

The man asserts that the lawyer’s notice to his liability carrier constitutes notice on behalf of the man. Where an injured party does not provide his own notice to the insurer, but instead relies on the insured’s notice, the injured party’s rights are derivative of the insured’s. Nevertheless, the dissent was of the view that the injured party may rely upon notice by the insured. Thus, for the purpose of the request, the court will assume without deciding that the lawyer’s notice was effective on behalf of the man and consider whether, from the man’s perspective, the notice was reasonable.

Since the man offers no excuse for his failure to ascertain the identity of his lawyer’s insurer, the insurance company’s motion for decision without trial declaring that it has no obligation to indemnify the lawyer or pay any benefits of the policy to the man is granted. The man’s motion requesting for the declaration that he acted reasonably diligently with respect to the insurance company policy is denied.

There are people who have disgraceful characteristic that can commit violence towards their own child. If you want to pursue a case against these individuals, you can seek assistance from the Nassau County Domestic Violence Lawyer or Nassau County Criminal Lawyer. You can also consult with the Nassau County Family Attorney at Stephen Bilkis and Associates for your other legal options.

Posted in:
Published on:

Comments are closed.

Contact Information