Anecdotally, we often receive calls in which the potential client tells us that the target attorneys “forced” them into settling. It seems that the proper question to the potential client is probably whether the “force” was of a “gun to the head” variety, or merely overbearing talk. Bei Yang v Pagan Law Firm, P.C. 2022 NY Slip Op 22130 Decided on April 25, 2022 Supreme Court, New York County Kraus, J. seems to be of the overbearing talk variety.
“In this action and in her pleadings, Plaintiff originally alleged many aspects of Defendants’ representation in the prosecution of the personal injury case constituted malpractice. In opposition to Defendants’ motion, Plaintiff has essentially narrowed her allegations to a single claim, that defendants forced her to settle the case by pressuring her, threatening to withdraw as her attorneys if the case did not settle and demanding that she front $30,000.00 in trial costs in [*4]order to move ahead with the trial. Plaintiff asserts these actions essentially forced her to accept the settlement, because she was unable to find new counsel so late in the litigation, and she felt it was clear Defendants did not want to proceed to trial.
Defendants have failed to submit affidavits on the motion denying these claims of coercion. Defendants submit an expert affirmation from Michael Zuller Esq., that incorrectly alleges that there is no claim or allegation that Plaintiff was coerced into accepting the settlement offer. Mr. Zuller opines that Defendants did not depart from the applicable standard of care in prosecuting the underlying action, and that Plaintiff can not show the “but for” proximate causation element in establishing actual non-speculative damages. Mr. Zuller further opines that the underlying action would have been risky to try and cites a significant percentage of medical malpractice trial result in a defense verdict.
Plaintiff’s unopposed allegations regarding the coerced settlement, including the threat by defendants to withdraw from representation and the demand that plaintiff front trial costs in contravention of the parties’ retainer agreement do indeed suggest ethical breaches on the part of defendants.
However, the violation of a disciplinary rule or ethical obligations does not, without more, generate a cause of action for legal malpractice (Guiles v Sismer 35 AD3d 1054, 1056; Weintraub v Phillips, Nizer, Benjamin, Krim & Ballon 172 AD2d 254). To succeed on her legal malpractice claim, Plaintiff would be required to prove that Defendants were negligent in their legal representation, that their negligence was a proximate cause of her loss and that she sustained actual and ascertainable damages (see Ehlinger v Ruberti, Girvin & Ferlazzo, 304 AD2d 925, 926 ).
Plaintiff’s own expert does not dispute Mr. Zuller’s opinion that the action would be risky to try and that a trial may have resulted in a defense verdict or a verdict lower than the settlement amount. In his affirmation, Mr. Bower states:
As such, the issue is not whether the settlement was adequate or reasonable, a fair amount or not, but simply whether the client’s assent was properly obtained. Whether accepting the offer was wise or foolish, and whether the settlement amount is fair or not, is entirely besides the point. In this case, the client’s consent was not voluntarily or freely given. Her assent was only obtained “under the gun.”
Predictably, the defense contends that the settlement amount herein was very favorable to the plaintiff, perhaps more than would be recovered at trial, and certainly more than if the trial went badly. All of that may be true, but all of that is totally irrelevant, nonetheless. The wisdom of the client’s choice is not the legal test that matters herein. All that matters is whether the consent to settle was freely given. If freely given, the settlement is valid and binding, regardless of the amount. If not freely given, the settlement was improperly obtained, regardless of the amount. (Emphasis added).
While the issue of whether plaintiff would have received a greater amount of money if she went to trial may be “irrelevant” to ethical considerations, it is not irrelevant to the pending malpractice claim. The concession of Plaintiff’s own expert that it is possible that Plaintiff would not have recovered more money or even that Plaintiff may have recovered less money if she proceeded to trial, underscores that Plaintiff will be unable at trial to establish that but for the settlement a trial would have resulted in a verdict in excess of 1.3 million dollars. [See eg Gallet, Dreyer & Berkey, LLP v. Basile, 141 AD3d 405 (2016)(holding summary judgment dismissing [*5]the legal malpractice claim appropriately granted where the asserted damages are vague, unclear, or speculative); Bellinson Law, LLC v Iannucci, 102 AD3d 563 (1st Dept 2013)].
While plaintiff cites to cases where a legal malpractice claim was held viable despite a settlement in the underlying action [Cohen v. Lipsig, 92 A.D.2nd 536 (Second Dept., 1983); Lattimore v. Bergman, 224 A.D.2nd 497 (Second Dept., 1996); Mazzei v. Pokorny, Schrenzel & Pokorny, 125 AD2d 374], these cases are distinguishable as none relate to a claim where the attorneys pressured a client to enter into a settlement, rather the cases cited involve circumstances where the settlement was required due to an error committed by counsel in representation in the underlying action.
Thus even if the ethical breach alleged constituted malpractice, the inability of plaintiff to establish actual and ascertainable damages requires dismissal of the action.”