We sometimes ponder whether attorneys are held to a lesser standard in Legal Malpractice, or to put it a different way, are plaintiffs in legal malpractice forced to overcome sympathy for attorneys?  It cannot be argued that there is a fourth element in legal malpractice – the "but for" rule – that exists no where else.  But, let’s look at a recent case.

In Putnam County Temple & Jewish Ctr., Inc. v Rhinebeck Sav. Bank ; 2011 NY Slip Op 06829
Decided on September 27, 2011 ; Appellate Division, Second Department  Supreme Court dismissed the Temple’s complaint.  The Appellate Division reversed most of the dismissals.  Did Supreme Court just have it wrong, or does this reflect an institutional bias for attorneys?  You decide.
 

"The Supreme Court held that the attorneys were entitled to dismissal of the eighth cause of action to recover damages for legal malpractice insofar as asserted against them on the grounds that the applicable statutes of limitations had run, the attorneys had presented documentary evidence that conclusively disposed of the temple’s claims, and the temple failed to state a cause of action. We disagree. Based upon the allegations in the complaint and the documentary evidence presented, it cannot be determined at this juncture whether the continuous representation doctrine tolls the three-year statute of limitations for attorney malpractice under the circumstances (see Kanter v Pieri, 11 AD3d 912, 913-914). Moreover, the temple properly alleged all of the elements necessary to recover damages for legal malpractice. Accordingly, the Supreme Court erred in holding that the eighth cause of action to recover damages for legal malpractice should be dismissed insofar as asserted against the attorneys. "

"The Supreme Court further erred in holding that the seventh cause of action to recover damages for fraud should be dismissed insofar as asserted against the attorneys. Contrary to the attorneys’ contention, that cause of action was pleaded with sufficient specificity (see CPLR [*3]3016[b]; Pludeman v Northern Leasing Sys., Inc., 10 NY3d 486, 492; PDK Labs v Krape, 277 AD2d 211), and the attorneys’ documentary evidence failed to "resolve[] all factual issues as a matter of law, and conclusively dispose[] of the plaintiff’s claim" (Brunot v Eisenberger & Co., 266 AD2d 421, 421; see CPLR 3211[a][1]). However, in its current form, the sixth cause of action alleging a violation of Judiciary Law § 487 lacks the required specificity (see Mars v Grant, 36 AD3d 561; Briarpatch Ltd., L.P. v Frankfurt Garbus Klein & Selz, P.C., 13 AD3d 296, 297-298), and, under the circumstances of this case, we modify the order dated August 2, 2010, to grant that branch of the motion which was pursuant to CPLR 3211(a) to dismiss the sixth cause of action insofar as asserted against the attorneys with leave to the temple to replead the allegations in an amended complaint. "