It seems as if the Appellate Division scratched its head on this claim of legal malpractice. It seemed not sure how to calculate the claimed departure from good practice. In Kaplan v Conway & Conway 2019 NY Slip Op 04477 Decided on June 6, 2019 Appellate Division, First Department it questioned the foundation of the legal malpractice case.
“The motion court properly granted defendants’ motion to dismiss. The complaint alleged that defendants committed legal malpractice by failing to timely advocate for a “formal closure” of a “sham” internal investigation instigated by plaintiffs’ employer, or to secure “more favorable language” in the FINRA U-5 Forms that were filed upon plaintiffs’ voluntary resignation. As a result of defendants’ alleged negligence, plaintiffs claim that they were subject to a FINRA investigation and “reputational damage.” Given the vague, speculative, and conclusory nature of these allegations, plaintiffs failed to allege facts that “fit into any cognizable legal theory” (see Nonnon v City of New York, 9 NY3d 825, 827 , quoting Leon v Martinez, 84 NY2d 83, 87-88  [internal quotation marks omitted]).
Moreover, emails submitted by defendants show that the law firm did advocate for plaintiffs’ employer to include language on the U-5 Forms indicating that any allegations against plaintiffs were unsubstantiated, and plaintiffs’ employer refused, calling such language a “non-starter.” Defendants also drafted a “Broker Comment,” which would have provided plaintiffs’ rebuttal to the negative information included on their U-5 Forms, but, according to defendants, plaintiffs would not discuss or approve the comment. It is undisputed that, prior to their voluntary resignation, plaintiffs were on administrative leave and already suffering damages in the form of loss of business and reputational damage. Accordingly, plaintiffs have no cause of action to recover damages for legal malpractice as they cannot demonstrate that defendants were negligent in their representation, or that such negligence proximately caused the alleged damages (see Rudolf v Shayne, supra; Weil v Fashion Boutique, supra).”