Our Outside Counsel column in today’s NYLJ is on "The Defense of Collectibility in Legal Malpractice"
Here is a portion. For the entire article, see today’s NYLJ:
The Defense of ‘Collectibility’ in Legal Malpractice
By Andrew Lavoott Bluestone
New York Law Journal
April 20, 2007
One of the many wrinkles in legal malpractice, which in some ways is a body of law unto itself, is the defense of collectibilty.
Simply put, it is the defense that even if successful, plaintiff might not have been able to collect a hypothetical judgment from the defendant. In no other field of law is plaintiff required to prove that collection can be had at the end of litigation. Pyrrhic victories are elsewhere permitted, and plaintiffs often face uncertainty of reward in other fields of law.
There is a split between departments in New York over who bears the burden of proving collectibilty or noncollectibilty. This article will describe the issue and the split.
In order to establish a prima facie case of legal malpractice, it must be shown that the defendant attorney deviated from good and accepted practice ["failed to exercise the degree of skill commonly exercised by an ordinary member of the legal community"] and that plaintiff-client sustained actual, real, measurable damages as a proximate result of the deviations by the defendant attorney.