Plaintiff settles a case handled by her attorney and is dissatisfied.  Dissatisfaction is normal after a settlement, goes the saying, because everyone has compromised and no one is happy.  However, what if the settlement was required because legal malpractice had changed the landscape?  What if the attorneys’ mistakes had required that the plaintiff salvage something and get whatever money could still be had?

Plaintiffs who are “effectively compelled” to settle a case may still sue the attorney.  Stein v Chiera  2015 NY Slip Op 06234   Decided on July 22, 2015  Appellate Division, Second Department is the Second Department’s latest pronouncement on this issue.

“To state a cause of action to recover damages for legal malpractice, a plaintiff must allege 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 failure was a proximate cause of actual and ascertainable damages (see AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 434-435; Randazzo v Nelson, 128 AD3d 935; Held v Seidenberg, 87 AD3d 616, 617). To establish causation, it is sufficient that the plaintiff allege that, but for the defendant attorney’s failure to exercise ordinary reasonable skill and knowledge, there would have been a more favorable outcome in the underlying proceeding (see Mackey Reed Elec., Inc. v Morrone & Assoc., P.C., 125 AD3d 822, 823). Even when the underlying proceeding has settled, a plaintiff may state a cause of action alleging legal malpractice, upon sufficiently alleging that the settlement was ” effectively compelled by the mistakes of counsel'” (Tortura v Sullivan Papain Block McGrath & Cannavo, P.C., 21 AD3d 1082, 1083, quoting Bernstein v Oppenheim & Co., 160 AD2d 428, 430; see Schiff v Sallah Law [*3]Firm, P.C., 128 AD3d 668).”

Here, as applied, there was no compulsion.  “Inasmuch as the plaintiff’s allegation against Chiera was based on the incorrect premise that Chiera’s alleged negligence caused the plaintiff’s cause of action to become time-barred, it is clear that any failure by Chiera in the prosecution of the 2005 action did not “effectively compel” the plaintiff to settle the 2006 action for less than its full value (see Schiff v Sallah Law Firm, P.C., 128 AD3d 668; Leiner v Hauser, 120 AD3d 1310, 1312; Keness v Feldman, Kramer & Monaco, P.C., 105 AD3d 812, 813).”