“While defendants’ representation of plaintiff was not perfect, and was possibly unethical
(see 22 NYCRR § 1200 [Rule 1.7]), their concurrent representation of three parties with differing
interests does not, in and of itself, state a claim for either cause of action.” So writes Justice Jaffe in Picarella v Liddle & Robinson L.L.P. 2019 NY Slip Op 30440(U) February 26, 2019, Supreme Court, New York County Docket Number: 154213/2018. The story of representation, multiple representation and failure at trial is Hollywood worthy.
“On or about May 5, 2011, plaintiff became employed at HSBC Securities (USA) Inc. as Senior Vice President for Institutional Sales and Chief Operational Officer/Deputy Head of Business Development for the Americas. His immediate supervisor was non-party Eileen Hedges. Seated between plaintiff and Hedges on the trading floor for HSBC was non-party Melissa Parvis, an analyst for Institutional Sales who also reported to Hedges.
Plaintiff had observed Hedges disparaging and sexually harassing Parvis, repeatedly engaging her in sexual banter and innuendo, discussing her own sexual activities, and once, exposing her breasts to plaintiff and Parvis on the HSBC trading floor. Plaintiff unsuccessfully and repeatedly asked Hedges to stop. She then began to retaliate against him.
Plaintiff reported Hedges’s sexual harassment of Parvis to his supervisors and other members of the HSBC management team, including those in human resources, which resulted in Hedges’ s harassment of plaintiff and disparagement of him within the organization. Plaintiff then reported Hedges’ s retaliatory conduct to members of the HSBC management team.”
“In or about June 2012, concerned with HSBC’s failure to address Hedges’s conduct, the firing of Parvis, and Hedges’s conduct toward him following his initial complaints, plaintiff sought legal advice from defendant Hubbard, a partner at defendant L&R. In July 2012, plaintiff signed a retainer agreement with L&R to represent him in connection with any claims he might have against HSBC. Hubbard asked that plaintiff keep him informed of any developments concerning his employment and treatment at HSBC so that it could be determined whether he had a viable claim. ”
“At or about this same time, Hubbard asked that plaintiff introduce him to Parvis in order to represent her, and plaintiff agreed. In the fall of 2012, Parvis retained L&R to represent her in connection with her claims against HSBC, which plaintiff became aware of in October 2012.
Due to Rist’s relationship with Parvis, HSBC retaliated against him as well. He too retained
Hubbard to represent him, of which plaintiff learned in or around December 2012. ”
“Absent a specific allegation in the complaint as to how plaintiffs outcome would have been different had plaintiffs action been filed before Parvis’ s, plaintiff does not state a cause of action for legal malpractice. (See Wagner Davis P.C. v Gargano, 116 AD3d 426, 426 [1st Dept 2014]). In Wagner, an attorney’s former clients alleged that they would have prevailed on a motion seeking a preliminary injunction if it had been filed earlier, whereas the attorney argued that the delay was intended to allow a new expert to prepare a report. (Id.). In affirming the trial court’s rejection of the malpractice claim based thereon, the Court held that the former clients had “failed to establish that they would have been successful on the motion absent counsel’s delay,” and that in any event, the decision to delay filing the motion to allow for a new expert report was a nonactionable strategic decision. (Id.). Here too, not only does plaintiff fail in his complaint to allege how the outcome would have been different had his case been prosecuted first, but the complaint sets forth defendants’ reasonable strategic determination to obtain an adjudication of whether Parvis was harassed, a determination that plaintiff does not challenge beyond conclusorily stating that his case should have preceded Parvis’s. ”
“Even if defendants’ “refusal” to call Parvis was the product of a conflict of interest, the allegation remains fatally conclusory. In any event, plaintiff alleges in the complaint that Parvis’ s settlement with HSBC precluded her from talking about her claims and the terms of her settlement, thereby posing no obstacle to her testifying about the alleged retaliation against plaintiff, and HSBC stipulated to the fact of Parvis’s harassment. Consequently, any alleged conflict arising from defendants’ concurrent representation of Parvis was not the cause of her failure to testify. And even if the settlement agreement effectively precluded her from testifying for plaintiff, nowhere in his complaint does plaintiff allege that independent counsel would have been able to negotiate such a provision out of the agreement with HSBC or that Parvis was otherwise willing to testify or able to testify about HSBC’s retaliation against him. Rather, there is no factual basis within the four comers of the complaint from which it may be reasonably inferred that Parvis would have useful testimony to offer plaintiff, as HSBC did not designate plaintiff a “problem case” or reduce his responsibilities until after Parvis had been fired. All told, plaintiffs allegations reflect a disagreement with defendants’ strategic decisions, as opposed to legal malpractice. ”
“Plaintiffs complaint is overwhelmingly based on conclusory and speculative assertions
that require the drawing of too many inferences to state causes of action for legal malpractice and
a breach of fiduciary duty. (See Heritage Partners, LLC v Stroock & Stroock & Lavan LLP, 133
AD3d 428, 429 [1st Dept 2015], lv denied 27 NY3d 904  [the “gross speculation of future
events” in the plaintiffs’ allegations were insufficient to satisfy “but for” causation element
required to state malpractice claim]).
While defendants’ representation of plaintiff was not perfect, and was possibly unethical (see 22 NYCRR § 1200 [Rule 1.7]), their concurrent representation of three parties with differing interests does not, in and of itself, state a claim for either cause of action. That another member of L&R told plaintiff that he “should consider” seeking new counsel “without explanation” does not constitute an admission of a disqualifying conflict, nor does plaintiff so allege. Although plaintiff need not entirely eliminate alternative factors contributing to his loss in the complaint, he failed to allege facts sufficient to show that but for defendants’ malpractice and breach, he would not have sustained loss. (See Voluto Ventures, LLC v Jenkens & Gilchrist Parker Chapin LLP, 46 AD3d 354, 355 [1st Dept 2007] [evidence of other factors contributing to loss not considered at pleading stage, but plaintiff must allege that legal malpractice was proximate cause of damages]). ”