Legal malpractice cases are unlike anything else…they all have a prior case background, and each must contain proofs of the "but for" variety.  Put another way, law of the case is almost always a consideration in legal malpractice cases.  Could plaintiff have won the underlying case?  Does dismissal of the underlying case fatally flaw a subsequent legal malpractice case?  How does the handling of the underlying case affect the subsequent legal malpractice case are all different formulations of the same question.

Justice York, of Supreme Court, New York County recently wrote on this issue in Metropolitan Plaza WP LLC v. Goetz Fitzpatrick, LLP., 2010 NY Slip OP 32389(U).  There, certain findings of the US Bankruptcy Court seem central to the legal malpractice case.  Defendants claim that the entire complaint should be dismissed pursuant to the doctrine of law of the case because "all of plaintiff’s causes of action are predicated on the erroneous assertion that the findings in the bankruptcy decision also constitute the law of the case in this action…" 

Plaintiffs responded that they "do not rely upon" the bankruptcy decision, "nor claim reliance upon it, nor is it argued that this is the law of the case." 

The Court finds "that the most reasonable interpretation to be accorded to this complaint is to conclude that plaintiffs rely heavily upon the persuasive effect of the bankruptcy decision, but not to the extent of asserting that it constitutes the law of the case in this action.  Simply put, the complaint does not say what defendants say It does.  Therefore, the court rejects defendant’s first dismissal argument."