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In a dispute alleging legal malpractice, Southern District Judge Denise Cote has turned down the defendant’s motion for summary judgment. The decision in Polin v. Wisehart & Koch, 00 Civ. 9624, allowed Charles Polin’s case to continue against his former attorney, Arthur Wisehart. Polin accused Wisehart of inducing him to pursue a meritless lawsuit against his former employer. His bills for legal fees amounted to more than $126,000, of which he paid $12,000, he said. Polin wanted the fees paid to Wisehart returned in addition to other expenses he incurred in filing an allegedly meritless claim. Those expenses totalled $32,000. Wisehart countered that Polin was to blame for his defeat in the case against his former employer, Kellwood Co., and still owes at least $114,525 in unpaid legal fees. From 1993 to 2001, Wisehart represented Polin in his lawsuit against Kellwood, a marketer of brand-name apparel. Polin, who served as president of Kellwood’s women’s clothing division, lost his job in 1993. He and Wisehart discussed an exit strategy by which he could obtain a large severance package. Wisehart allegedly told his client that he had an “excellent” and “slam dunk” case of age discrimination against Kellwood. Wisehart filed a lawsuit on behalf of Polin claiming age discrimination and that he had been fraudulently induced to take the job at Kellwood. The lawyer and client agreed that Polin would pay New York-based Wisehart & Koch at least $100 an hour plus 45 percent of the gross value of any recovery. In 1998, Polin and Kellwood agreed to go to arbitration after what Cote described as “protracted and acrimonious discovery.” A year later, a three-member arbitration panel from the American Arbitration Association ruled in Kellwood’s favor. It dismissed Polin’s claims in strong terms, saying his “position is long on argument and short on facts.” It called the age discrimination claim unsupportable and frivolous. The panel sanctioned Wisehart for pursuing the unsupportable discrimination claim and concluded that he had breached his ethical duties during the arbitration. These violations included false representations regarding witness testimony, recording a telephone conference call that included Kellwood’s counsel and the head of the arbitration panel without giving notice to either person, and sending false claims about the head of the panel to the American Arbitration Association during the proceedings. The arbitrators ordered Wisehart to pay Kellwood $153,237 in damages for filing the meritless suit. A federal court later confirmed the arbitrators’ sanction. Using the arbitral ruling as ammunition, Polin filed a legal malpractice suit against Wisehart, alleging many of the conclusions reached by the panel, and saying he relied on Wisehart’s guidance in filing his lawsuit. Cote applied the standard used in New York to determine whether legal malpractice had occurred. Polin, she said, must prove that Wisehart “failed to exercise the skill commonly exercised by an ordinary member of the legal community” when he advised Polin to file the lawsuit. And he must prove that because of this advice he went through with the suit. An attorney is not made liable for malpractice by “an honest mistake,” the judge noted, but if Wisehart recommended an unreasonable course of conduct, “he may be liable.” Advising Polin to file a suit he knew or should have known was “meritless and frivolous” would make Wisehart culpable, the judge held. Whether Wisehart failed to operate according to the standards of a typical member of the bar is for a jury to determine, said Cote. Kevin Costello of Lutz, Levow & Costello in New Jersey represented Polin. Mark Anesh and Eric Crusius of Wilson, Elser, Moskowitz, Edelman & Dicker represented Wisehart & Koch. The attorneys for Wisehart could not be reached for comment.

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