A unique principal in malpractice cases, both medical and legal is the question of professional judgment.  In medicine, it is said that "medicine is an art and not a science" and in law, it is said that a legal malpractice action may not be based solely upon a failed strategy or question of professional judgment, upon which opinions may vary.

Many legal malpractice cases have been dismissed on the principal that the complained of acts were questions of judgment, failed or not, and not a departure from good and accepted standards.  Here in this very interesting case, the First Department affirms the decision of Justice Kornreich, in Supreme Court, New York County.  In Escape Airports (USA), Inc. v Kent, Beatty & Gordon, LLP
2010 NY Slip Op 08981;;  Decided on December 7, 2010, the Court writes:
 

"The essence of plaintiff’s claim is that it consulted defendant for advice concerning the individual contracts with airlines that were based on the template agreement defendant had drafted; defendant gave it bad advice in failing to recommend that a termination provision be added or otherwise advise plaintiff that such protection was lacking; plaintiff had no way of knowing that it had been given bad advice until after it signed the individual agreements; the airlines had an incentive to agree to a termination provision because plaintiff would not otherwise have been able to provide the contracted for lounge services; and but for this omission, plaintiff would not have incurred damages.

At this juncture, i.e., the motion to dismiss, the professional judgment rule cannot be invoked to determine whether defendant was negligent in failing to include a termination provision, because the state of the record does not allow a determination as a matter of law that [*2]defendant deliberately excluded that provision in favor of an equally protective alternative provision (see e.g. Rosner v Paley, 65 NY2d 736, 738 [1985]; Zarin v Reid & Priest, 184 AD2d 385, 386-387 [1992]). Nor can we conclude that it is or is not overly speculative to surmise that a carrier would have agreed to a termination clause in its lease equivalent to that found in plaintiff’s agreement with the airport. "