Malpractice Claims against Lawyers

To sustain a cause of action for legal malpractice, the client or former client must show that:

[1] the attorney 'failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession' and [2] that the attorney's breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages." See Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442, 835 N.Y.S.2d 534, 536 (2007)(brackets added), quoting McCoy v. Feinman, 99 N.Y.2d 295, 301-302 (2002).

The first element has been deemed satisfied where a a promissory note calling for an usurious form of interest, which rendered the note unenforceable; in the failure to include a termination provision in an agreement to occupy space in an airplane terminal; in failing to commence a law suit before it was barred by the statute of limitations; in failing to know the rules of practice; in failing to satisfy the conditions precedent to bringing suit; and in failing to prosecute an action.

The second element, that the attorney's conduct caused the client harm, may be more difficult to satisfy than at first seems. Let's suppose that the lawyer fails to file the client's law suit within the statute of limitations, and it is dismissed. That sounds like a pretty strong case, doesn't it? Not so fast: the second element requires a showing that but for the lawyer's negligence, what was an unfavorable outcome would have been a favorable outcome.

That means that the client has to have had a very strong case. For instance, in an action on a promissory note, or in a personal injury caused by a motorist who ran a red light, the facts might enable the client to establish the second element. But given the uncertainties of most forms of litigation, the difficulty of establishing the second element can be very daunting.

With respect to damages, the lawyer is liable for the losses foreseeable by a reasonable man. Even where a client settles a matter after the malpractice, the client may still sue if the settlement was effectively compelled by the counsel's mistakes.

From a former client's point of view, one positive thing about suing his former lawyer is that a legal malpractice claim is one of the relatively few claims in business litigation that will permit the plaintiff to recover for pain and mental suffering. And given the difficulties of quantifying pain and mental suffering, a claim for pain and mental suffering may significantly increase the amount in dispute.

Judiciary Law § 487

A malpractice action, by definition, involves a former client suing his former lawyer. But here are instances where someone other than the lawyer's former client may bring suit. That's because New York's Judiciary Law 487 permits recovery where a lawyer 1) engages in deceit or collusion, or 2) wilfully delays a client's suit with a view to his own gain. And significant § 487 permits treble recovery.

Where the lawyer delays a suit, it most likely be the lawyer's own former client that sues him. But in cases of deceit and collusion, it will sometimes be a litigant other than the lawyer's former client bringing suit. For example, where a lawyer advises his client on how to violate a court's injunction, another party to the litigation can sue the lawyer for deceit and colluding with the lawyer's client.

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