Legal malpractice is an arcane and complicated body of law. It has certain doctrines and principles that do not show up in other areas of the law. Some are found in medical malpractice and some are found nowhere else. The attorney-judgment rule is one doctrine that is shared with medical malpractice. The “but for ” causation principle is unique.
In Hickey v Steven E. Kaufman, P.C. 2017 NY Slip Op 30216(U) February 1, 2017 Supreme Court, New York County Docket Number: 153640/2013 Judge: Shlomo S. Hagler writes: “The Kaufman defendants argue that the judgment-call doctrine protects them from a claim of malpractice when they exercised their professional judgment by selecting “one among several reasonable courses of action” (Rosner v Paley, 65 NY2d 736, 738 ); see Pere v St. Onge, 15 AD3d 465, 466 [2d Dept 2005]; Dweck Law Firm v Mann, 283 AD2d 292 [1st Dept 2001]). The Kaufman defendants contend that plaintiff was advised of the risks of failing to cooperate with the AG, and that the AG was unambiguously clear that his failure to cooperate expeditiously would result in his immediately having civil fraud charges brought against him. The Kaufman defendants maintain that plaintiff knowingly decided to enter into the agreement to avoid further investigation and indictment. The Kaufman defendants. rely heavily on Tantleff v Kestenbaum & Mark (131 AD3d 955 [2d Dept 2015]). However, Tantleff was before the court on a summary judgment motion, not a motion to dismiss pursuant to CPLR 3211. Therefore the standards for relief are different and the cases are not analogous. 3 Furthermore, there is no indication in Tantleff that the plaintiff had sought various protections that were initially provided in earlier drafts of an agreement but then omitted in later drafts. 4 Thus, at this stage of the litigation, it is premature to conclude that plaintiff has failed to state a cause of action based upon the judgment-call doctrine. ”
“In order to state a cause of action for legal malpractice, a plaintiff must set forth facts to support his assertion that the attorney’s negligence was a proximate cause of the loss sustained, that the attorney’s actions or inactions resulted directly in actual damages to the plaintiff and that the plaintiff would not have sustained the damages but for the attorney’s negligence (Garnett v Fox, Horan & Camerini, LLP, 82 AD3d 435, 435-436 [1st Dept 2011]; Cannistra v O’Connor, McGuinness, Conte, Doyle, Oleson & Collins, 286 AD2d 314, 315-316 [2d Dept 2001]; Lavanant v General Acc. Ins. Co. of Am., 212 AD2d 450, 451 [1st Dept 1995] ) . According to the Kaufman defendants, “the proximate cause of any purported loss was (1) Hickey’s decision to execute the Escrow Agreement and avoid criminal and/or civil indictment by the AG; (2) Majestic’s decision to withhold payment from Hickey because of the AG’s investigation; (3) Plaintiff’s review, agreement, and execution of the Escrow Agreement[; and] (4) Hickey’s informed decision as a sophisticated businessperson to forego indictment” (Kaufman defendants’ Memorandum of Law at 10) . Notably absent from the Kaufman defendants’ recitation ·is plaintiff’s position that his loss was caused by the failure of his.attorneys to “make sure” that the Escrow Agreement was clear that the escrowed funds were plaintiff’s property, and that upon termination of the Escrow Agreement, the funds were to be distributed to him, not to CRM/Majestic. Further, according to plaintiff, his attorneys never made it clear to him that there was ambiguity in the Escrow Agreement itself which would enable CRM/Majestic to collect those funds (Amended Complaint, ¶ 32-33, 41, 56-57; Plaintiff’s Affidavit, ¶4-7).