Is the client satisfied with the settlement is different from whether the client is “satisfied with the representation” which, in the past few years has taken on a totemic power to kill legal malpractice cases.  Clients, when/if asked at the settlement allocution whether they are satisfied with their attorney’s representation and required to answer.  If they answer yes, a legal malpractice case based upon mistakes by the attorney is severely compromised.  We think this perverse.  Would a surgery patient, coming out of anesthesia, and asked whether they are satisfied be precluded from a medical malpractice case ?  Probably not.

Rosenberg Feldman Smith, LLP v Ninety Five  Madison Co., L.P.  2019 NY Slip Op   30582(U)  March 7, 2019  Supreme Court, New York County  Docket Number: 653953/2018
Judge: Andrew Borrok finds that there was no such question asked.  Nevertheless, it averts to the Katebi-Greenberg line of matrimonial-legal malpractice cases.

“In this legal malpractice action, the plaintiffs/counterclaim defendants Rosenberg Feldman
Smith, LLP (RFS), Richard Feldman, and Stephen Rosenberg move to dismiss the counterclaims
asserted against them by defendant/counterclaim plaintiff Ninety-Five Madison Company, L.P.
(NFMC). The underlying action concerns legal fees sought by RPS in connection with its
representation ofNFMC on seven separate matters from 2017-2018 totaling $189,328.86. The
counterclaims brought by NFMC against RPS, Feldman, and Rosenberg all relate to RFS’s
representation of NFMC in one particular case, Vitra, Inc. v Ninety-Five Madison Co., L.P.,
Index No. 652342/2017 (the Vitra Action). ”

‘On December 7, 2017, the approximately 30 paragraph settlement agreement was read into the
record in front of New York State Supreme Court Justice Saliann Scarpulla. Pursuant to the
terms of the settlement agreement, among other things, the parties agreed that all disputes
relating to the enforcement and interpretation of the settlement would be referred to arbitration,
and the parties waived the rights to put on evidence or conduct any discovery at such proceeding
(Feldman aff, exhibit Q at 15, lines 22-16; at 16, lines 9-15). After reading the settlement
agreement into the record, the Court discussed the settlement agreement with Ms. Sklar:
THE COURT: Please state and spell your full name for the record.
THE WITNESS: Rita A. Sklar, S-K-L-A-R.
THE COURT: Do you want to allocute or I?
MR. FELDMAN: You can, Your Honor.
THE COURT: Ms. Sklar, you were in the courtroom this whole morning. In fact,
you’ve been in the courtroom for the last couple of days. You’ve heard the terms of the stipulation of settlement between the parties of this dispute. Do you
understand the stipulation?
THE WITNESS: Yes.
THE COURT: Do you have any questions about the stipulation?
THE WITNESS: No.
THE COURT: Do you agree to the stipulation of settlement voluntarily?
THE WITNESS: Yes.
THE COURT: Has anyone coerced or forced you into agreeing to the settlement?
THE WITNESS: No.
THE COURT: Did you take any medication today or anything else that would
impair your ability to enter into this stipulation?
THE WITNESS: No.
THE COURT: Do you feel comfortable and confident communicating in the
English language or would you like me to have a translator come and translate the
settlement?
THE WITNESS: No.
THE COURT: You’re good with English?
THE WITNESS: Yes.
THE COURT: Good. Thank you very much.
(Feldman aff, exhibit Q at 17, lines 7-26; at 18 lines 1-26; at 19, lines 1-2). NFMC alleges that
the stipulation read in court was materially different from the one that Ms. Sklar agreed to and
that she only agreed to its terms on the record because she was not informed by RPS that the
terms had changed (Counterclaim, iii! 21-27). ”

“The counterclaims raised by NFMC state a claim for legal malpractice. RPS argues that NFMC
has failed to demonstrate that any of the alleged acts of malpractice proximately caused any
damages to NFMC, i.e., that “but for” the alleged acts, NFMC would have achieved a more
favorable outcome. The Court does not agree. NFMC alleges that RFS’s failure to conduct
discovery, failure to pursue counterclaims, failure to adequately inform Ms. Sklar regarding the
settlement, putting NFMC in a position where it had to settle, agreeing to settlement terms not
approved by NFMC, and waiving critical rights in arbitration including the right to appeal resulted in a highly unfavorable settlement and unsuccessful arbitration proceedings and caused
NFMC to incur significant monetary damages (Counterclaim, iii! 59, 60-71 ).
RPS further argues that Ms. Sklar’ s allocution in open court stating that she understood and
agreed to the stipulation of settlement precludes an action for legal malpractice based on any
alleged deficiencies in the settlement agreement or alleged failure to inform Ms. Sklar of any
material changes to its terms. Simply put, the cases cited by RPS do not mandate this conclusion
at this stage of the proceeding. Significantly, Ms. Sklar was not asked whether she was satisfied
with her representation in the matter or whether she had an opportunity to discuss the proposed
settlement and whether her attorneys satisfactorily answered all of her questions regarding the
proposed settlement. See Knox v. Aronson, Mayesfsky & Sloan, LLP, 168 AD3d 70, 75-76 [1st
Dept 2018]; Harvey v Greenberg, 82 AD3d 683, 683 [1st Dept 2011]; Katebi v Fink, 51 AD3d
424, 425 [1st Dept 2008]). “