Legal malpractice is the child of medical malpractice.  It seems that attorneys (long, long ago) helped forge the concept of professional responsibility for poor medical care, well before the same analysis was applied to legal care.  Long ago the quality of medical care varied widely between communities, and the “locality rule” was applied, so that courts measured the work of a doctor against a standard of local medical care.  The worry for doctors was that a rural physician would have his/her work unfairly compared to that of  a “big-city” doctor.

In legal malpractice, it can be fairly said that there is one standard for all of New York.  Doviak v Finkelstein & Partners, LLP  2016 NY Slip Op 01636  Decided on March 9, 2016  Appellate Division, Second Department is an example.

“During the trial of the underlying injury action, the personal injury defendants extended settlement offers in the sums of $4 million, $8 million, $9.25 million, and $10 million, respectively, each of which the plaintiffs declined upon the defendants’ advice. On the evening after the parties had rested, and prior to summations, the personal injury defendants extended a written settlement offer in the sum of $12 million, along with a structured settlement plan which would yield greater sums if invested as proposed (hereinafter the $12 million offer).

Yatto, who represented the plaintiffs at trial, testified that he communicated the $12 million offer to the plaintiffs and handed Mrs. Doviak the written document containing the offer (hereinafter the offer document) to review but that, the following morning, Mrs. Doviak explicitly rejected the $12 million offer and handed the offer document back to him. The plaintiffs, on the other hand, testified that they were never informed of the $12 million offer and that, had they been informed of it, they would have accepted it.

The jury in the personal injury action returned a verdict in favor of the plaintiffs in the sum of approximately $3.7 million. The defendants successfully sought additur from the Supreme Court, Ulster County, which increased the verdict to the sum of approximately $6.8 million. In November 2007, after the successful additur motion, the plaintiffs discharged the defendants and engaged successor counsel. Successor counsel obtained further additur from the Appellate Division, Third Department, for a total verdict in the sum of approximately $9.3 million (see Doviak v Lowe’s Home Ctrs., Inc., 63 AD3d 1348).

The plaintiffs thereafter commenced this action against the defendants, alleging, inter alia, that the defendants committed legal malpractice by failing to communicate the $12 million offer to them. The plaintiffs also alleged a variety of other legal errors and sought, inter alia, a finding that they had discharged the defendants for cause and that, accordingly, the defendants were not entitled to recover fees in the personal injury action.”

“The plaintiffs contend that, in evaluating the proffered testimony of their proposed expert on legal malpractice (hereinafter the malpractice expert), the Supreme Court improperly applied the “locality rule.” This is the concept that the quality of a professional’s work must be measured against that of professionals from a locality of comparable size, which is often applied to expert testimony regarding medical care (see Restatement [Second] of Torts: Undertaking in Profession or Trade § 299A, Comment g). The plaintiffs are correct that, in general, this rule does not apply to the work of legal professionals. The record, however, does not demonstrate that the court applied the locality rule.”