CLE lecturers almost always warn the listener not to sue for fees. They tell attorneys at the lectures that there will be an inevitable legal malpractice counterclaim. In the case of sole practitioners or small firms, a comparison of their insurance deductible with the fee claim should be made, because they may have to pay the deductible even before they have any possibility of collection.

One legal malpractice claim which comes up regularly is a law firm that takes a case for "investigation" or simply takes a case, and then drops it just before the statute of limitations expires. This seems to happen more often in medical malpractice. An expert (at least theoretically) must be on board before bringing the case (certificate of merit) and sometimes attorneys take on a case in the hope of a pre-complaint settlement, or in the hope of getting an expert. When neither happens, they give the case back to the client. Is this legal malpractice? Is a similar situation where the attorneys wait until the very last minute to work on a motion legal malpractice?

In Hinshaw & Culbertson, LLP v e-Smart Tech., Inc. ;2011 NY Slip Op 30651(U); Sup Ct, New York County; Docket Number: 113108/09; Judge: Judith J. Gische we see that the latter situation is not a good legal malpractice claim.

"Fritz and Hinshaw have successfully established – and Smart does not disagree -that Fritz and
Hinshaw were discharged as their lawyers August 1, 2008. It is also unrefuted that there was a pending motion in one of the California cases in which Smart’s opposition was due August 4, 2008. Smart’s argument, that it was negligent for Fritz and Hinshaw to wait until the last moment to work on the motion, which is why they were discharged, does not support a claim for legal malpractice. No deadline was missed. The supplemental claim, that Smart had to scramble to find new lawyers, is also unavailable. To establish a prima facie case of legal malpractice or negligence, the client must plead and prove facts tending to show that the law firm: 1) failed to exercise that degree of care, skill, and diligence commonly possessed and exercised by an ordinary member of the legal community, 2) that such negligence was the proximate cause of the actual damages sustained by the plaintiff and, 3) that “but for” the defendant’s negligence, the plaintiff would have been successful in the underlying matter (Laventure v, Galeno, 307 AD2d
255 [Ist Dept. 2003] ;Wexler v. Shea & Gould, 21 I AD2d 450, 621 NYS2d 858 [Ist Dept. 1995]. The facts do not support any of these elements and the claim for legal expenses spent to hire another attorney is not a malpractice claim. Therefore, Fritz and Hinshaw’s motion to dismiss the legal malpractice claim based upon the failure to timely prepare a response to the motion in the California action granted and that aspect of the malpractice claim is severed and dismissed."