Whatever Happened to "Effectively Compelled" in Legal Malpractice
Once upon a time, the universally known and understood standard of whether a settlement (as against a dismissal or a verdict) of the underlying case affected the right to sue the attorney could be stated as "Was the settlement effectively compelled my mistakes of the attorney?" Now that bedrock principal seems to have been eroded, and perhaps completely washed away. First came the "allocution" cases in which plaintiff is asked whether they are satisfied with their attorneys' work. The expected "yes" doomed the case. Now, in Schloss v Steinberg , 2012 NY Slip Op 07599 Decided on November 13, 2012 Appellate Division, First Department we see the Court completely disregard the principal.
"Even if defendant's acts or omissions rose to the level of negligence, plaintiff's legal malpractice claims remain speculative. Indeed, nothing in the record shows that but for defendant's negligence, plaintiff would have been awarded a larger distribution of the marital estate or received a better settlement in the matrimonial action (see Katebi v Fink, 51 AD3d 424, 425 [1st Dept 2008]; Russo v Feder, Kaszovitz, Isaacson, Weber, Skala & Bass, 301 AD2d 63, 67 [1st Dept 2002]). Plaintiff's speculative arguments are insufficient to raise triable issues of fact (see Brooks v Lewin, 21 AD3d 731, 734-735 [1st Dept 2005], lv denied 6 NY3d 713 ).
We reject plaintiff's claim that she was not given a fair opportunity to voice objections or concerns during the allocution in the matrimonial action. During the allocution, plaintiff acknowledged on the record that she understood and agreed with the settlement terms, and understood that it was a final and binding agreement. Accordingly, plaintiff should not be heard to disavow the allocution (see e.g. Harvey v Greenberg, 82 AD3d 683 [1st Dept 2011]). "