Kadah v Kadah 2023 NY Slip Op 32889(U) August 18, 2023 Supreme Court, New York County Docket Number: Index No. 152026/2022 Judge: Richard Latin has an excellent discussion of how privity of contract, a general requirement in legal malpractice claims, can apply both individually and when the law firm is representing a person as an entity, in this case, as administrator of an estate.
“This action stems from alleged malpractice in the handling of a legal matter relating to
plaintiff’s ownership of International Controls and Measurements Corp. (“ICM”), specifically the alleged failure to file a claim that plaintiff owned 3,160 shares of ICM stock prior to the November 1, 2016 deadline to make such a claim. It is uncontested that no timely claim was filed. However, H&K argue that they were not retained to represent Kadah individually, but rather in his role as Administrator ad litem over the company. Defendant H&K further asserts that ownership of shares in ICM could not be established despite best efforts, due to significant issues with corporate records.”
“Defendant H&K first argues that dismissal is appropriate because there was no actual
privity or a relationship that closely resembles privity. Defendant H&K asserts that it was retained for the limited purpose of assisting plaintiff in being appointed as Administrator ad litem over the company and to assist in locating records relating to ICM’s capital structure. Plaintiff disputes this and has presented sufficient documentary support to make dismissal at this stage improper. For example, an engagement letter dated July 12, 2016 from defendant H&K states clearly:
“Thank you for retaining Holland & Knight LLP (“H&K”) to represent you in connection
with the administration of your father’s estate. We will seek to have you appointed as the administrator of your father’s estate and, once you are appointed, advise you in that role. We look forward to serving your needs in this matter and to establishing a mutually satisfactory relationship.”
By clearly stating that H&K is representing “you” – in this case, plaintiff – the document can reasonably create the impression that H&K was first and foremost representing plaintiff’s interests. A subsequent retainer agreement dated July 25, 2016 furthers this impression: “Dear Andrew: Thank you for retaining Holland & Knight LLP to represent you individually as a defendant in connection with the above-referenced action …
As you know, we are also representing you in connection with the disputes involving your late father’s estate. However, we see no conflicts with respect to our representation of you in these 2 capacities.”
The clear statement that H&K was representing plaintiff and that no conflict existed with representing plaintiff in related litigation can also be reasonably interpreted as creating an attorney client relationship between H&K and plaintiff individually. In a subsequent filing dated October 28, 2016, H&K filed and signed a document representing “Andrew S. Kadah (“Andy”), individually as heir at law to decedent Hassan Bedri Kadah (“Decedent” or “Hassan”) and as Court appointed Administrator Ad Litem.” Finally, plaintiff points to a January 24, 2018 memo prepared by H&K which addresses “The validity of purported gifts Hassan Kadah made to his children in 1999 and 2001 of shares of International Controls & Measurements Corp.” and ultimately concludes that:
“Therefore, we recommend that our client, Andrew Kadah, and his similarly-situated
siblings, nieces, and nephews, not pursue this position any further, given that the legal
arguments supporting a valid gift of the 1999 and 2001 shares would almost certainly fail, and given that there is no meaningful financial advantage in pursuing this position.”
These documents create a question of fact as to whether H&K was representing plaintiff
individually and defendant’s arguments to the contrary are unpersuasive. Accordingly, defendant H&K’s request to dismiss based upon the absence of an attorney-client privilege with plaintiff individually is denied. Similarly, Defendant H&K’s assertions that the alleged malpractice fell outside of the expected role for defendant H&K has not been conclusively established at this time.”
by the documents or arguments presented.