Legal malpractice cases are dismissed at a statistically higher rate in legal malpractice cases than in other tort or contract cases. We believe that the reason is institutional. Subconsciously, attorney-judges give greater scrutiny to legal malpractice claims than they do to other claims, and because of this, attorneys are granted a higher bar to suit.
In Menkes v Solomon & Cramer LLP 2022 NY Slip Op 01740 Decided on March 15, 2022 Appellate Division, First Department resolved an attorney v. attorney legal malpractice case against Plaintiff. “Plaintiff’s legal malpractice claim was correctly dismissed in accordance with CPLR 3211(a)(7) for failure to state a cause of action. Even accepting plaintiff’s allegations as true, the complaint contains only conclusory allegations that any negligence by defendants in not raising an affirmative claim for interest in a fee dispute between plaintiff and two attorneys was the “but for” cause of plaintiff’s alleged damages (AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 434 ; Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP, 26 NY3d 40, 50 ). Plaintiff’s contention that the motion court in the fee dispute would have awarded her predecision interest pursuant to CPLR 5001 is at best speculative (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442, 443 ; see also Manufacturer’s & Traders Trust Co. v Reliance Ins. Co., 8 NY3d 583, 589-590 ).
Nor does the fact that defendants signed a stipulation on plaintiff’s behalf, releasing the holder of the escrow account from liability, constitute malpractice. Plaintiff, an experienced personal injury attorney, executed an affirmation in which she agreed to most of the terms proffered by the escrow counsel, one of which released him from any liability once the amounts in the account were distributed. As a result, defendants’ execution of a stipulation containing largely the same language was consistent with plaintiff’s express representations and not the “but for” cause of any alleged loss. “