In many ways legal malpractice and medical malpractice are first cousins. In other ways, attorneys get a far more beneficial set of rules in how they are treated by their fellow attorneys in legal malpractice claim settings.

One example is illustrated in Dowlah v Professional Staff Congress 2024 NY Slip Op 02980 Decided on May 30, 2024 Appellate Division, First Department where plaintiff attempts to sue his union provided lawyer for legal malpractice.

“Plaintiff’s legal malpractice claim against his union-appointed attorney who represented him in arbitration is preempted by Federal labor law, as “attorneys who perform services for and on behalf of a union may not be held liable in malpractice to individual grievants where the services performed constitute part of the collective bargaining process” (Mamorella v Derkasch, 276 AD2d 152, 155 [4th Dept 2000]).

Plaintiff’s claims against his union, Professional Staff Congress (PSC-CUNY), and its legal director, arising from their selection of an allegedly biased arbitrator are barred by res judicata and collateral estoppel based on this Court’s resolution of that issue in plaintiff’s prior appeals (see Matter of Dowlah v City Univ. of N.Y., 189 AD3d 533, 534 [1st Dept 2020]; Dowlah v American Arbitration Assn., 221 AD3d 426, 426 [1st Dept 2023]). Plaintiff’s instant claims are based on the same transaction as in both earlier actions, and therefore they are barred even though they are based upon different legal theories (Dowlah, 221 AD3d at 427). “That plaintiff has pleaded different causes of action and included new parties is of no moment” since “plaintiff, the party against whom preclusion is sought, was a party in the earlier action[s]” (id.).

To the extent plaintiff’s claim against PSC-CUNY arises from its appointment of plaintiff’s allegedly negligent attorney and thus raises a distinct issue, his allegations constitute a claim that he was improperly represented by his union, which is untimely under CPLR 217(2)(a)’s four-month limitations period (see Roman v City Empls. Union Local 237, 300 AD2d 142, 142 [1st Dept 2002], lv denied 100 NY2d 501 [2003]).”