The Successor Attorney Problem in Legal Malpractice
Attorneys move around, and law firms morph. What happens when one attorney is sued for legal malpractice which is said to have taken place at two law firms? One answer is that both firms may be sued in the main action if plaintiff chooses, another choice is the third party action. Here, in Tanger v Ferrer ; 2011 NY Slip Op 01954 ; Decided on March 17, 2011 ; Appellate Division, First Department we see how the procedural aspects might play out. Questions of successive tortfeasors and the one direction in which liability might flow are not unique to legal malpractice, and seem to flow in the opposite direction as time...later might be liable to earlier, but not earlier to later.
"In this legal malpractice action, plaintiff alleges that defendant Alfred Ferrer III, when serving as a lawyer for him and his wife, negligently prepared three settlement tenders. Ferrer was employed by third-party defendant DLA Piper US LLP f/k/a Piper & Marbury LLP when he prepared the first two tenders, and by defendant Eaton & Van Winkle, LLP (EV) when he prepared the third tender. Ferrer and EV instituted a third-party action for, among other things, contribution against DLA Piper. DLA Piper moved to dismiss the third-party complaint against it, arguing, in pertinent part, that EV, as a successive tortfeasor, had no right to contribution from it, as prior tortfeasor. We agree.
Where, as here, "the injuries caused by the original and successive tortfeasor are capable [*2]of being separated from or divided between one another, the successive tortfeasor, being liable only for the injuries that tortfeasor caused, has no right of contribution from the original tortfeasor" (Cohen v New York City Health & Hosps. Corp., 293 AD2d 702, 703 )."