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Legal Malpractice
St. Johns University School of Law
Bluestone, Andrew Lavoott

Legal Malpractice Bluestone Spring 2016
Elements of Legal Malpractice
The existence of an attorney-client relationship creating a duty on the part of the attorney
Essential part of any malpractice cause of action
An attorney may not be held to have committed malpractice for his failure to do that which he has no duty to undertake
The existence of an a/c relationship does not require a formal retainer agreement or payment of a fee; there must be an explicit undertaking by the attorney to perform a specific task
Established by the consent of the parties
Retainer agreement 22 NYCRR 1215
*Often the most important exhibit in the defense of a legal malpractice claim*
As of 2013, in New York, a Statement of Client’s Rights (22 NYCRR 1210.1) must be posted in office where visible to clients
Scope of the representation
Rights in regard to fee disputes
Opening of a file
Other activity evidencing the relationship
The existence of the requisite relationship does not depend on the payment of a fee by the client or a retainer agreement
It must be shown that a relationship was formed and the client relied on the legal advice of the attorney
In cases which an attorney is charged with fraud or malicious action
Emerging trend to expand lawyer liability beyond the traditional a/c relationship in the legal services were intended to benefit the non-client plaintiff
To recover damages for legal malpractice, a plaintiff must prove, inter alia, the existence of an a/c relationship. An a/c relationship does not depend on the existence of a formal retainer agreement or upon payment of a fee. Hansen v. Caffry (3rd Dep’t 2001)
A court must look to the words and actions of the parties to ascertain the existence of such a relationship. Tropp v. Lumer (2nd Dep’t 2005)
A plaintiff’s unilateral belief does not confer upon him the status of client. Jane St. Co. v. Rosenberg & Estis (1st Dep’t 1993)
To establish an a/c relationship there must be an explicit undertaking to perform a specific task. Volpe v. Canfied (2nd Dep’t 1997)
Breach of the duty
After the a/c relationship has been established, the plaintiff must show that the attorney breached the duty arising from that relationship.
The attorney must in some manner have failed to exercise ordinary skill and knowledge commonly possessed by a member of the legal profession McCoy v. Feinman (1st Dep’t 2002)
The Plaintiff must prove establish the standard for care that governed the legal representations, and show that the attorney violated that standard of case (an expert witness will help determine standard of care)
Common types of breaches:
Negligence act on the attorney’s part
Breach of a contract between the attorney and client
Fraud by the attorney
Violation of a statutory or ethical duty imposed on the attorney
Most malpractice claims are grounded in negligence
Constituting the proximate cause of the client’s injury
A “but for” standard generally is applied.
“But for” the attorney’s malpractice, the client would not have suffered damages or the underlying claim would have been resolved differently
The client must establish that he would have been successful in his endeavor had the attorney not been guilty of malpractice
The “case within the case”
Speculative, used to decide if it’s a direct or indirect connection
“But for” the attorney’s malpractice, the claimant would have prevailed in the underlying action, would have received a more advantageous result or would not have sustained some actual and ascertainable damage. McCoy v. Feinman (1st Dep’t 2002)
The attorney’s malpractice must have resulted in damages to the client
Actual or direct damages are recoverable, and their usual measure is the difference between what the plaintiff’s pecuniary (of, relating to, or consisting of money) position is and what it would have been had the attorney not committed malpractice
Consequential damages, as well as disbursements and fees paid to the offending attorney, may be recovered in appropriate circumstances
It is important to remember that the plaintiff must have suffered damages in order to be successful in a malpractice claim
Thus, for instance, an attorney who has missed a SOL on a claim completely without merit may escape liability since the plaintiff will be unable to establish the requisite damages.
The plaintiff must establish the likelihood of success in the underlying matter for which he sought representation
The plaintiff must also show the nature and amount of those damages
The fact finder must determine the value of a hypothetical judgment that would been obtained had the attorney commenced the action
Plaintiff must plead and prove ascertainable damages, mere speculation about a loss from an attorney’s alleged omission is insufficient to sustain a prima facie case
Damages recoverable are limited to the amount that could or would have been collected in the underlying action
Causes of Legal Malpractice complaints
Some attorneys fail to prepare clients for the adversarial process
Some attorneys lack good “beside manners”
Some attorneys fail to establish the terms of the relationship clearly when the representation commences or they permit the a/c relationship to break down somewhere along the way
Clients who become disgruntled because of some misperception about their relationship with their attorneys are very likely to convert that feeling into a perception that their attorney has failed t

ranted for legal estate planning claims.
A parent may assert legal malpractice as an affirmative defense to the fee claim o f an attorney for a child. Venecia V. v. August V. (1st Dep’t 2013)
Whether the legal malpractice claim asserted in the complaint is viewed as having accrued prior to the filing of the bankruptcy petition, or post-petition, the claim is still property of the bankrupt estate and may not be maintained by plaintiff in his individual capacity.Such a cause of action is exercisable only by the trustee in bankruptcy.
Non-Clients will also seek to sue lawyers for breach of New York Judiciary Law §487
Requires a showing of the intent to deceive the court or any party in a litigated matter, or a chronic, extreme pattern of legal delinquency.
They are disfavored. Appellate Courts appear (but do not explicitly state) to require a higher standard of proof, and have used the word “clear” in their descriptions of the standard of JL 487 proofs, bringing to mind a “clear and convincing” standard rather than a “preponderance of the evidence” standard.
The evidentiary bar is very high, but it is a popular claim because it provides for treble damages.
Statute that permits a court to triple the amount of the actual/compensatory damages to be awarded to a prevailing plaintiff. Treble damages are a multiple of, and not an addition to, actual damages.
Attorney who attempts to or successfully deceives (Egregious act and Chronic) becomes responsible for treble damages
Up to one year in jail
$1000 fine
Court of Appeals found that if an attorney attempts to deceive the court but fails he still violates the law
Since Judiciary Law § 487 authorizes an award of damages only to ‘the party injured,’ an injury to the plaintiff resulting from the alleged deceitful conduct of the defendant attorney is an essential element of a cause of action based on a violation of that statute.” Rozen v Russ & Russ, P.C. (2nd Dep’t 2010).
New York Judiciary Law §487 claim by wife against lawyers for her ex-husband for misrepresenting facts to the court, and which caused her to incur necessary legal fees, held to withstand dismissal motion. Dupree v. Voorhees (2nd Dep’t 2009)