Legal malpractice plaintiffs who are suing for representation in a divorce action are routinely placed between a rock and a hard place, when asked at the settlement of their divorce action whether they are satisfied with attorney’s representation.  They are told to say ‘yes" and often do, simply to end the torture.  This simple "yes" can negate the issue of whether they were "effectively compelled to settle" the case.

In Harvey v. Greenberg we see the ultimate negative outcome to plaintiff.  Plaintiff’s theory (as is almost aways true) is that attorney’s mistakes were not clear to the non-attorney client, and were not evident until explained by successor attorney, hence, how could client be held to a "satisfied" standard?

"According to the First Department, a "claim for legal malpractice 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., P.C., 160 AD2d 428, 429-430 [1st Dept 1990]) (emphasis added). However, the First Department also makes clear that an allocution at settlement wherein the client states that she is satisfied with the attorney’s performance constitutes documentary evidence that contradicts an allegation of legal malpractice (Katebi v. Fink, 51 AD3d 424, 425 [1st Dept 2008], citing Bernstein [holding that while a "’claim for legal malpractice 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,’ here, the complaint is contradicted by the evidentiary material submitted on the motion to dismiss"]). In Katebi, the plaintiff/client settled the matrimonial action during trial, and the plaintiff’s allocution took place on the record. The Court granted defendants’ motion to dismiss the complaint for failure to state a cause of action for legal malpractice, on the following grounds:

Plaintiff testified that she did not wish to proceed with the trial of the matrimonial action, that she decided instead to enter into the stipulation of settlement because she wanted no further connection with her husband, that she understood that by settling the action before the completion of the trial she was foregoing the right to pursue the funds allegedly dissipated by him, and that she was satisfied with the services provided by her attorney . (Id. at 425)

Similarly, in dismissing another plaintiff’s legal malpractice case, the Court in Weissman v. Kessler, 2008 WL 6920033 [Sup Ct, NY County 2008]) noted that the plaintiff "allocuted that she was satisfied with her counsel and that no one forced her to settle…. Defendants have demonstrated that the documentary evidence conclusively establishes that [plaintiff’s legal malpractice claims] should be dismissed."])."