The Collateral Estoppel Trap in Legal Malpractice -Workers' Compensation Model
A basic rule of legal malpractice is that an attorney may not be granted a fee by a court or tribunal if there is legal malpractice present. Since an attorney may not obtain a fee if there has been legal malpractice, it follows, ipso facto, that if a court or a tribunal grants a fee to an attorney, then there can have been no legal malpractice. For the most part, it does not matter whether the question of legal malpractice has been raised or not. So it goes in Bob v Cohen 2013 NY Slip Op 02499
Decided on April 16, 2013 Appellate Division, First Department. In Bob the attorneys asked for a fee in the WC proceedings, and then used that fee as a defense to legal malpractice.
"On the merits, defendants were entitled to dismissal of this legal malpractice action commenced by their former client on res judicata grounds. The Workers Compensation Board's award of legal fees to defendants, imposed as a lien against the ultimate award of compensation to plaintiff (see Workers' Compensation Law § 24), precludes plaintiff's present claim that defendants represented him negligently, a claim that could have been raised in opposition to defendants' fee application (see e.g. Lusk v Weinstein, 85 AD3d 445 [1st Dept 2011], lv denied 17 NY3d 709 ; Zito v Fischbein Badillo Wagner Harding, 80 AD3d 520 [1st Dept 2011]). "