May plaintiff sue the former attorney after settling the underlying case? It depends on whether plaintiff was effectively compelled to settle the underlying case or not. This differs from a situation where the underlying case is lost. How to tell whether the client was compelled or merely took the easy path? Glenwayne Dev. Corp v James J. Corbett, P.C. 2019 NY Slip Op 06069 [175 AD3d 473] August 7, 2019 Appellate Division, Second Department discusses how.
“”In an action to recover damages for legal malpractice, a plaintiff must demonstrate 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 breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages” (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 , quoting McCoy v Feinman, 99 NY2d 295, 301 ; see Darby & Darby v VSI Intl., 95 NY2d 308, 313 ). “To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence” (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 442; see Davis v Klein, 88 NY2d 1008, 1009 ). A legal malpractice cause of action “is viable, despite settlement of the underlying action, if it is alleged that settlement of the action was effectively compelled by the mistakes of counsel” (Bernstein v Oppenheim & Co., 160 AD2d 428, 430 ; see Maroulis v Sari M. Friedman, P.C., 153 AD3d 1250, 1251 ; Keness v Feldman, Kramer & Monaco, P.C., 105 AD3d 812, 813 ; Tortura v Sullivan Papain Block McGrath & Cannavo, P.C., 21 AD3d 1082, 1083 ).
In support of their motion, the defendants submitted the transcript of the court proceeding setting forth the terms of the settlement of the underlying action, which conclusively established that the plaintiff was not coerced into settling (see Schiller v Bender, Burrows & Rosenthal, LLP, 116 AD3d 756, 757 ; Pacella v Whiteman Osterman & Hanna, 14 AD3d 545 ; Laruccia v Forchelli, Curto, Schwartz, Mineo, Carlino & Cohn, 295 AD2d 321, 322 ). The plaintiff’s allegations that it was coerced into settling the underlying action were utterly refuted by the admissions of its principals during the settlement proceeding that they had discussed the terms of the settlement with their attorneys, understood the settlement terms, and had no questions about them; that they were entering into the settlement freely, of their own volition, and without undue influence or coercion; and that they were satisfied with their legal representation (see Schiller v Bender, Burrows & Rosenthal, LLP, 116 AD3d at 757-758; Boone v Bender, 74 AD3d 1111, 1113 ).
Accordingly, the defendants were entitled to dismissal of the complaint pursuant to CPLR 3211 (a) (1).”