What must plaintiff prove in order to be successful in a legal malpractice case?  SOFIA FRANKEL, Plaintiff, – against – BRIAN F. McDONOUGH and DRINKER BIDDLE & REATH LLP, Defendants.10 Civ. 6106 (DAB)UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK; 2011 U.S. Dist. LEXIS 123992;October 24, 2011 shows us that plaintiff must clear a very high bar.  Here, plaintiff was a stock broker who was the subject of a FINRA arbitration which ended in a multi-million dollar award against her and the brokerage.  She claims that her attorneys, who represented both her and the brokerage, could have had her dismissed personally and failed.

"It is well-established that in order to state a claim for legal malpractice under New York law, a Plaintiff must allege [*11] "(1) the negligence of an attorney; (2) the negligence was the proximate cause of the loss sustained; and (3) proof of actual damages." Rondout Landing at the Strand, Inc. v. Hudson Land Development Corp., 361 F.Supp.2d 218, 223 (S.D.N.Y. 2005).2 "In order to plead causation adequately in a legal malpractice claim, the plaintiff must show that but for the attorney’s negligence, ‘what would have been a favorable outcome was an unfavorable outcome. The test is whether a proper defense would have altered the result of the prior action.’" Flutie Bros. v. Hayes, No. 04 Civ. 4187 (DAB), 2006 WL 1379594 at *4 (S.D.N.Y. 2006) (quoting D’Jamoos v. Griffith, No. 00 Civ. 1361, at *5 (E.D.N.Y. 2001)). See also Pellegrino v. File, 738 N.Y.S. 2d 320, 323 (1st Dep’t) (citations omitted), lv denied, 98 N.Y.2d 606 (2002). "This causation requirement, a high bar to attorney malpractice liability, seeks to insure a tight causal relationship exists between the claimed injuries and the alleged malpractice, and demands a nexus between loss and injury. Flutie Bros., 2006 WL 1379594 at *4 (citation and internal quotation marks omitted). The "’but for’ [causation] prong requires the trier of fact in effect [*12] [to] decide a lawsuit within a lawsuit, because it demands a hypothetical re-examination of the events at issue absent the alleged malpractice." Littman Krooks Roth Ball, P.C. v. New Jersey Sports Prod., Inc., No. 00 Civ. 9419, 2001 WL 963949, at *3 (S.D.N.Y. Aug. 22, 2001) (citing N.A. Kerson Co. v. Shayne, Dachs, Weiss, Kolbrenner, Levy, et al., 397 N.Y.S.2d 142, 143 (2d Dep’t 1977)"

"The Court finds that Plaintiff has not sufficiently alleged negligent conduct by Defendants. Plaintiff primarily alleges that Defendants committed malpractice by failing to challenge the arbitrators’ entry of a joint and several award against Plaintiff and Lehman Brothers. However, as the New York Supreme Court and the Appellate Division have accurately observed, the Statement of Claim brought by the Underlying Claimants sought recovery from Lehman Brothers only as a result of Plaintiff’s own misdeeds. Further, though the Damages section of the Statement of Claim did not specifically seek joint and several damages against Plaintiff and Lehman Brothers, it nevertheless [*13] expressly sought to impose several liability on Plaintiff for the entire amount of Underlying Claimants’ out-of-pocket damages, all of which arose from her misconduct. (See Compl. Ex. A at 43 (seeking an award against Plaintiff and Goldman Sachs, jointly and severally, for the entire $7.7 million Underlying Claimants claimed as out-of-pocket losses, and against Lehman Brothers for only the last $2.2 million in out-of-pocket losses).) Consistent with even that portion of the Statement of Claim which Plaintiff now identifies as defective, therefore. Plaintiff could have been held severally liable for the entire amount which was awarded jointly and severally against her and against Lehman Brothers, as well as that which was awarded jointly and severally against her and Goldman Sachs. Since the joint and several award Plaintiff challenges could in any case have been awarded against her severally, or jointly with Goldman Sachs, wholly consistent with the ad damnum clause, Plaintiff’s allegation that Defendants were deficient in allowing the entry of an award against her jointly and severally with Lehman Brothers fails to state a claim for attorney negligence."