Collateral Estoppel and Attorney Liens

Client hires attorney.  Attorney successfully bails out just before trial.  There is no expert.  Medical malpractice case is dismissed because there is no expert.  Attorney asserts a lien, and then when the lien is granted, defends a legal malpractice case on the basis of the lien.  Is this fair?

Snyder v Brown Chiari, LLP   2014 NY Slip Op 02363 [116 AD3d 1116]  April 3, 2014  Appellate Division, Third Department finds for plaintiff, but only because when the lien was litigated,plaintiff was precluded from arguing malpractice.

"Defendants urge as an alternative ground for affirmance the collateral estoppel argument that they unsuccessfully asserted before Supreme Court. They premise this argument upon the fact that Supreme Court permitted their lien on plaintiff's file and the line of cases which hold that "where a client does not prevail in an action brought by counsel for the value of professional services, a subsequent action by the client for malpractice is barred by collateral estoppel" (Thruway Invs. v O'Connell & Aronowitz, 3 AD3d 674, 676 [2004] see e.g. Zito v Fischbein Badillo Wagner Harding, 80 AD3d 520, 521 [2011]). Here, at the appearance regarding the lien on the file, plaintiff was, as stated by Supreme Court in its decision, "expressly prevented by [Supreme] Court from asserting any claims relative to the actual services performed by [d]efendants, and strictly limited to a discussion of the accuracy of the amount of the disbursements made by [d]efendants on her behalf." We agree with Supreme Court's characterization of the lien dispute and, under such circumstances, further agree with Supreme Court that plaintiff did not previously have a full and fair opportunity to litigate the issue of whether defendants were negligent so as to support invoking collateral estoppel (see generally Buechel v Bain, 97 NY2d 295, 303-304 [2001], cert denied 535 US 1096 [2002]). The remaining arguments, to the extent properly before us, are academic or without merit."

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