Fundamentals Are Everything in Legal Malpractice

Glens Falls:    In this case two fundamental mistakes plague the attorney.  The first got him into the legal malpractice case, and the second kept him from getting out.  A relatively straightforward employment agreement granted the manager the right to a "hearing" of sorts.  The attorney participated in a termination that did away with the "hearing."  When the attorney was sued, he failed to offer the affidavit of an expert and so his summary judgment was denied.  Both are fundamental issues that should not be the least bit controversial.

Jack Hall Plumbing & Heating, Inc. v Duffy  2012 NY Slip Op 07249 [100 AD3d 1082]  November 1, 2012  Appellate Division, Third Department tells us that "Plaintiff, a corporation owned by John Hall Sr. and his two sons, entered into an employment agreement with its chief operating officer, Russell Scudder. The agreement provided that, prior to its expiration, plaintiff could terminate Scudder for cause by presenting written charges setting forth the basis for the termination and then giving Scudder an opportunity to respond to the charges in writing and to request that plaintiff's president review his response. To carry out the termination, the president was then required to obtain the consent of the board of directors and to comply with any guidelines set forth in plaintiff's bylaws.[FN*]

Soon after entering into the agreement, the relationship between the Halls and Scudder [*2]deteriorated to the point that Hall became concerned that he and his sons were in danger of losing the business due to Scudder's mismanagement. Accordingly, Hall sought legal advice from defendant H. Wayne Judge concerning how to terminate Scudder in compliance with the employment agreement and in view of the urgency caused by the perceived danger to the business. After their meeting, Judge drafted a letter for Hall to give to Scudder. The letter outlined the reasons for Scudder's termination and informed him that it was effective immediately. Hall and his sons then unanimously voted to terminate Scudder without giving Scudder notice and an opportunity to respond, after which Hall gave Scudder the letter drafted by Judge. Scudder responded by commencing an action against plaintiff for breach of the employment agreement. Although plaintiff, represented by Judge, prevailed at the trial of that action, we reversed and found that plaintiff failed to comply with the unambiguous terms of the employment agreement by terminating Scudder without any notice or opportunity to respond (Scudder v Jack Hall Plumbing & Heating, 302 AD2d 848 [2003]). Plaintiff then commenced this action alleging that defendants committed legal malpractice by negligently advising plaintiff in connection with Scudder's termination. After joinder of issue and discovery, defendants moved for summary judgment dismissing plaintiff's complaint. Finding that plaintiff's opposing papers were inadequate to raise an issue of fact, Supreme Court granted the motion."

"Plaintiff contends on appeal that defendants failed to meet their initial burden of presenting evidence in admissible form establishing that they had exercised the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession in discharging their obligations to plaintiff (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]; Geraci v Munnelly, 85 AD3d 1361, 1362 [2011]; Adamski v Lama, 56 AD3d 1071, 1072 [2008]). This issue of the adequacy of the professional services provided here requires a professional or expert opinion to define the standard of professional care and skill owed to plaintiff and to establish whether the attorney's conduct complied with that standard (see Tabner v Drake, 9 AD3d 606, 610 [2004]; Ehlinger v Ruberti, Girvin & Ferlazzo, 304 AD2d 925, 926 [2003]; Greene v Payne, Wood & Littlejohn, 197 AD2d 664, 666 [1993]). Plaintiff argues that the affirmation by Judge submitted in support of defendants' motion for summary judgment fails to establish his prima facie compliance with the standard of care. We must agree."

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