Dissolved Firm Is Found Liable for Partner's Subsequent Malpractice
The malpractice case alleged Cohen botched the response to a motion to compel disclosure of documents withheld on the basis of privilege, a motion served while he still was at the Robertson firm.
Atlantic Research contends Cohen took months to respond and, hampered by the absence of the lawyers who had prepared the privilege log, handed the insurers "effectively a complete victory."
Under a "claw back" deal he proposed, he turned over almost every disputed document for the carriers to review and if they wanted to keep one and Cohen did not agree, a special discovery master would decide whether privilege applied, Atlantic Research says.
Cohen also allegedly failed to keep general counsel Steven Lowson apprised on discovery, in part because he used an incorrect email address and did not call Lowson when he got no reply.
In mid-2010, Lowson replaced Cohen with New York's Saretsky Katz Dranoff & Glass and Hackensack's Pashman Stein. They negotiated settlements totaling more than $11 million from 15 insurers.
Anderson Kill, which was paid less than $70,000 on the case, did not assert a charging lien on the recovery but the Robertson firm did, seeking more than $2 million under the contingency arrangement or, alternatively, more than $1 million for the unpaid portion of its billings on a quantum meruit theory.
In Atlantic Research Corp. v. Robertson Freilich Bruno & Cohen, the company asked for a declaratory judgment that the firm was not entitled to any additional money and asserted a malpractice claim for its transfer of the file to Cohen without doing anything more.
It asked for about $42,000 in damages for discovery sanctions imposed in the coverage litigation.
Pashman Stein's Samuel Samaro, who tried the case before Superior Court Judge Rachelle Harz, says he does not know how the jury calculated the $50,185 award. "The case demonstrates that a dissolving law firm cannot simply pass a file on to a departing partner and forget it," Samaro says. "You have to arrange for a soft landing for the file, and that did not happen here."
Kevin Bruno, another Robertson name partner, now with Blank Rome in New York, says there will likely be a motion to set aside the verdict and, if that is denied, an appeal. He is not sure whether the firm, which he says is still in dissolution, has sufficient assets to pay.