Big cases and little cases alike are subject to the unique legal malpractice “strategic choice” doctrine as well as a speculation analysis. Bison Capital Corporation v. Hunton & Williams, Supreme Court, New York County, Scarpulla, J. is today’s example. “Bison and its president, Edwin E. Wells, Jr. (“Wells”) entered into a contract with nonparty ATP Oil and Gas Corporation (“ATP”) wherein Bison agreed to help secure a financing source for that company, which was facing imminent bankruptcy (“Contract”).” Eventually, although ATP succeeded, it failed to pay Bison. Bison retained Hunton & Williams to represent it against ATP. After much litigation, during the appellate process communication and agreement broke down. ATP filed for bankruptcy.
“The Legal Malpractice Cause of Action An action for legal malpractice requires proof: (1) of the negligence of the attorney; (2) that the negligence was a proximate cause of the loss sustained, and (3) of actual damages. See Excelsior Capitol LLC v. K&L Gates LLP, 138 A.D.3d 492, 492 (1st Dept. 2016) (internal quotation marks and citation omitted) lv denied 28 N.Y.3d 906 (2016). The complaint must sufficiently allege that the attorney did not exercise the “ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession.” Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442 (2007). “But for” the attorney’s actions, the plaintiff would have prevailed or not suffered ascertainable damages. Id.
Allegations in support of a legal malpractice claim that are conclusory, speculative or contradicted by the documentary evidence will be dismissed, even if there was negligence. See Katz v. Essner, 136 A.D.3d 575, 576 (1st Dept. 2016). An attorney will not be found negligent for an error of judgment simply because it leads to an unsuccessful result. See Rosner v. Paley, 65 N.Y.2d 736 (1985).
Dissatisfaction with strategic choices does “not support a malpractice claim as a matter of law.” Bernstein v. Oppenheim & Co., 160 A.D.2d 428, 431 (1st Dept. 1990). Attorneys are not held to a
rule of infallibility and will not be found liable for honest mistakes of judgment “where
the proper course is open to reasonable doubt.” Id. at 430.
The burden is on the attorney to “offer a reasonable strategic explanation for the alleged negligence.” Ackerman v. Kesselman, 100 A.D.3d 577, 579 (2nd Dept. 2012)(internal quotation marks and citation omitted). It is only when there is no showing of reasonable decision-making that a “determination [of whether] a course of conduct constitutes malpractice require[ ] findings of fact.” Bernstein v. Oppenheim, 160 A.D.2d 428, 430 (1st Dept. 1990).
The overriding problem with Bison’s claims of malpractice based on defendant’s failure to produce an expert on junk bond “evergreen” fees is that, as stated by the district court and affirmed by the Second Circuit, Wells’ own October 15, 2004 letter to ATP articulated the terms of the parties’ agreement, which was that fees were owed for any transaction prior to the twelve-month period following termination of the agreement. Defendant decided in its professional judgment related to trial strategy that Wells, the drafter of the agreement and identified in paragraph three of the second amended complaint as a “financial advisor with a great deal of experience in oil and gas financing [who] had high-level contacts at financial institutions,” was able to testify sufficiently
about junk bond financing and terms of the parties’ agreement. Bison has not sufficiently alleged that despite this letter, had defendant performed differently, it would have achieved a better result. See Warshaw Burstein Cohen Schlesinger & Kuh, LLP v. Longmire, 106 A.D.3d 536, 537 (1st Dept. 2013) lv dismissed 21 N.Y.3d 1059 (2013). In any event, if there was error, it is shielded by the attorney judgment rule. See Ackerman v. Kesselman, 100 A.D.3d at 579.”