A recent case, reported on Lexis but not yet entered in the NYS Court Appellate Division web site discusses the interrelation of defamation and legal malpractice. In DANY DAVID, Plaintiff, – against – MICHAIL Z. HACK, WILLIAM J. O’MAHONEY and QUADRINO & SCHWARTZ, Defendants. INDEX NO. 103705/11; 103705/11; SUPREME COURT OF NEW YORK, NEW YORK COUNTY; 2011 NY Slip Op 32443U; 2011 N.Y. Misc. LEXIS 4461, Justice Mills, we see a case in which plaintiff and law firm argued over fees, and came to a resolution. In that resolution the law firm refunded $250 and required a release. Plaintiff signed the release, but now claims that it covered only a fee dispute and not any underlying legal malpractice. In addition, client has a defamation claim.
The release definitely covered "legal malpractice" but the court found underlying indicia that the refund and the agreement did not contemplate anything but a fee dispute. "It is undisputed that the law firm ceased its representation of plaintiff by December 23, 2009. Thereafter, plaintiff contested the amount due and owing for the services [*3] provided by the law firm during its prior representation of plaintiff, and such dispute was resolved with a refund to plaintiff by the law firm in the amount of $250.00. In consideration of such refund, plaintiff executed a mutual release on March 31, 2010, in favor of the law firm. The subject release specifically "RELEASES, ACQUITS AND FOREVER DISCHARGES" the law firm and its attorneys:
from any and all claims, rights, demands, liabilities, controversies, or causes of action, known or unknown, asserted or unasserted, liquidated or unliquidated, fixed or contingent, or of any nature whatsoever including without limitation, claims in contract, tort, or legal malpractice, under statutory or common law, or in equity…from the beginning of the world to the date of execution of this Agreement.
Moreover, such release also states as follow:
5. Careful Review and Understanding of Agreement
The parties to this Agreement acknowledge, [**3] represent and warrant that:
a. They have fully read this Agreement, understand its contents, and agree to its terms and conditions; and
b. They have consulted with legal counsel prior to executing this Agreement and the consequences of this Agreement have been completely explained to them by their attorneys and those terms are fully understood and voluntarily accepted by them.
Accordingly, the law firm contends that the plaintiff’s action against it are barred by the subject release.
As a general rule, a valid release that is clear and unambiguous on its face constitutes a complete bar to an action on a claim which is the subject of the release absent fraudulent inducement, fraudulent concealment, misrepresentation, mutual mistake [*4] or duress (see Littman v Magee, 54 AD3d 14, 17, 860 N.Y.S.2d 24 [2008]).
While plaintiff acknowledges signing the subject release, he contends that he was unrepresented at the time he signed it, and was under the impression that the release was limited to his fee dispute, and not a malpractice action. Plaintiff cites Rule 1.8(h)(2) in support of his position, which provides as follows:
(h) A lawyer shall not:
(2) settle a claim or potential claim for such liability with an unrepresented [**4] client or former client unless that person is advised in writing of the desirability of seeking, and is given a reasonable opportunity to seek, the advice of independent legal counsel in connection therewith.
There is no evidence presented by the law firm that the plaintiff was given a reasonable opportunity to seek, the advice of independent legal counsel in connection with the signing of the release. Additionally, plaintiff in his opposition annexes correspondence sent from the law firm to him, suggesting that he come into their office to sign the release and pick up the check in the amount of $250.00 to complete the pending fee dispute."