What would happen if it were easy to sue the other side’s attorney?  Presumably, after every litigation, the losing party would sue the winning party’s attorney.  This is not a desirable goal, because it would simply lead to double/treble endless litigation.  For this reason, the rule of privity requires that except in the most extreme circumstances, you must have had a contractual relationship with the attorney you sue.

So it goes in Lombardi v Lombardi   2013 NY Slip Op 31478(U)  July 1, 2013 Supreme Court, Suffolk County  Docket Number: 12-24554  Judge: Hector D. LaSalle.  Wife sues Husband to overturn an antenuptual agreement, and sues his attorney too. 

"“In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney ‘failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession’ and that the attorney’s breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages. To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence” (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442, 835 NYS2d 534 [2007] quoting McCoy v Feinman. 99 NY2d 295,301-302,755 NYS2d 693 [2002]). The plaintiff must show that the attorney’s breach of 3 professional duty caused her actual damages in order to recover for legal malpractice; conclusory allegations of damages or injuries based upon speculation will not suffice (Holschauer v Fisher, 5 AD3d 553, 772 NYS2d 836 [2d Dept 20041). To succeed on a summary judgment motion dismissing a complaint in an action to recover damages for legal malpractice, a defendant must demonstrate that the plaintiff is unable to prove at least one of the essential elements of its legal malpractice cause of action (Gershkovich v Miller, Rosado & Algios, LLP, __- AD3d -, 945 NYS2d 567 [2d Dept 20121; Boglia v Greenberg 63 AD3d 973, 882 NYS2d 2 I5 [2d Dept 2009). Here, plaintiff seeks damages for legal malpractice as against defendant Courten. As plaintiff has failed to demonstrate that she retained defendant Courten to represent her in connection with any matter, she has failed to show that defendant Courten owed her any duty, let alone that she sustained damages as a result of a breach of that duty. Absent a duty to plaintiff, no negligence (malpractice) can be found against defendant attorney Courten. "