When clients depend upon the expertise of an attorney, and then end up with a bad result, they can successfully plead legal malpractice. Does a client settle the personal injury case or litigate on? Depending on how the attorney advises the client, there may or may not be legal malpractice. Here is an example.

Polanco v Greenstein & Milbauer, LLP 2012 NY Slip Op 04385, Appellate Division, First Department concerns a case in which plaintiff was struck in the neck by a piece of lumber. She alleged that the defendant was negligent in urging her to settle the case without a MRI and telling her that a MRI would not lead to a more favorable result. She settled the case for $ 20,000 only to find out later that she was permanently disabled.
 

"after settling the case for $20,000, she obtained an MRI showing a disc herniation that required surgical intervention; that she remains permanently disabled; that defendant’s negligence proximately caused her to sustain damages by not gaining the fair value for her case; and that she would have been successful in the underlying action had defendants exercised due care. These allegations are sufficient to state a claim for legal malpractice (see Garnett v Fox, Horan & Camerini, LLP, 82 AD3d 435, 435 [2011]; see generally Tortura v Sullivan Papain Block McGrath & Cannavo, P.C., 21 AD3d 1082, 1083 [2005], lv denied 6 NY3d 701 [2005]). Plaintiff was not required to [*2]show a likelihood of success in the underlying action, but was "required only to plead facts from which it could reasonably be inferred that defendant’s negligence caused [her] loss" (Garnett, 82 AD3d at 436). Plaintiff plead such facts. "
 

Reading the background information or the caption of some legal malpractice cases often reveals issues about the case itself.  In Stuart v Robert L. Folks & Assoc., LLP   2013 NY Slip Op 03319
Decided on May 8, 2013   Appellate Division, Second Department , we saw that the defense counsel’s name was all alone in the appearance section of the appeal.  Plaintiff appealed from the dismissal of his case, yet his name did not appear at the top, implying that plaintiff was pro-se and did not participate in oral argument.  Sometimes that’s a great decision, other times, not so great.
 

We read on to see that the Appellate Division decided the case on a somewhat related issue.  From the decision:  "Applying these standards to the instant case, the Supreme Court properly directed the dismissal of the legal malpractice cause of action. The plaintiff alleged that the defendants negligently advised him to prosecute an underlying action despite the fact that it was time-barred. However, the documentary evidence submitted by the defendants established that they specifically advised the plaintiff about probable statute-of-limitations problems, and that they reasonably commenced the underlying action despite such concern. Moreover, the documentary evidence also established that the underlying action was dismissed solely because the plaintiff failed to appear pro se with new counsel in that action within the time specified by the court, after the court had granted the motion of Robert L. Folks & Associates, LLP, a defendant in this action, to be relieved as counsel for the plaintiff in the underlying action. "

While the decision inZaidman v Marcel Weisman, LLC  2013 NY Slip Op 03323 Decided on May 8, 2013  Appellate Division, Second Department  does not specifically set forth what Plaintiff could not prove, we believe it would have been "notice" of a defective condition, and lack of proof (in the alternative) of creation of the dangerous condition.  In other words, could plaintiff prove that the plastic wrapper was left by the distributors or not?
 

"The defendant was retained to represent the plaintiff in an action to recover damages for injuries she allegedly sustained when she slipped and fell on a plastic-wrapped package of advertising flyers left on the steps of her residence. The defendant commenced an action on behalf of the plaintiff against the owner of the residence and against a marketing distribution company which allegedly distributed the flyers. The owner of the residence defaulted, and the defendant obtained a judgment against her and in favor of the plaintiff. Depositions of a representative of the marketing distribution company were not conducted until after the expiration of the statute of limitations, at which time the representative testified that the company did not start distributing that particular advertising flyer until a date subsequent to the plaintiff’s accident, and named another company which allegedly was the distributor at the relevant time. The defendant was unable to commence an action against this other company or against the publisher of the advertising flyers, as the statute of limitations had expired, and the plaintiff commenced this action alleging legal malpractice. "

"The plaintiff failed to establish her entitlement to judgment as a matter of law on the issue of defendant’s liability for malpractice, as she failed to establish, prima facie, that she would [*2]have prevailed in the underlying action against certain persons or entities whom she identified, even had they been timely joined as additional defendants (see Greene v Sager, 78 AD3d at 779; Theresa Striano Revocable Trust v Brancato, 71 AD3d 1122). "

The short answer to the question is yes, they do; the longer answer to the question is that their rights to first amendment protection of speech is very limited, and litigation over those rights will be stringently examined, or better put, subject to strict scrutiny. In Ruotolo v Mussman & Northey
2012 NY Slip Op 30860(U), Sup Ct, NY County Docket Number: 109449/2008
Judge: Saliann Scarpulla both plaintiff’s case against the Police Department and his later legal malpractice case against the attorneys are lost.  This case was recently affirmed on appeal.

"Plaintiff Angelo Ruotolo (“Ruotolo”) is a former New York City Police Department (“NYPD”) officer. In June 2003, while still employed with the NYPD, Ruotolo commenced a civil rights action in the United States District Court for the Southern District of New York (“the civil rights action”) against the City of New York and several NYPD supervisors (collectively “the City defendants”). Non-party William Rold (“Rold”) initially represented Ruotolo in the civil rights action. In the civil rights action Ruotolo alleged that the City defendants retaliated against him for writing a report (“the Report”) about the possible health effects of environmental contamination in the 50th precinct, where Ruotolo served as a Command Safety Officer. Ruotolo alleged that after writing the Report, the City defendants arbitrarily denied him time off and overtime, reassigned him repeatedly, and disciplined him for trivial reasons. Ruotolo asserted claims that these retaliation-or.y actions violated the First Amendment and Due Process clauses of the U.S. Constitution, and various state whistle blower laws. "

"In November 2003, the City defendants moved to dismiss Ruotolo’s complaint, arguing that the Report was not protected by the First Amendment because Ruotolo prepared it in his capacity as a public employee, not as a private citizen. On August 25, 2004, Judge Stein denied the City’s motion with respect to the First Amendment and Due Process claims but granted the motion with respect to the state whistle blower claims. Then, in February 2004, the NYPD charged Ruotolo with visiting an out of borough location while on duty, subsequently placed him on modified duty and confiscated his firearms. Ruotolo eventually retired from the NYPD without a permit to carry a firearm as a civilian. Also, by mid-2004 conflicts had arisen between Ruotolo and Rold, his attorney in the civil rights action, and, in May, 2004, Rold withdrew as counsel for Ruotolo. Thereafter, M&N began representing Ruotolo in the civil rights action."

"Before the action could proceed to trial, the United States Supreme Court issued its decision in Garcetti v. Ceballus, 547 U.S. 410 (2006). In Garcetti, the Supreme Court held that the First Amendment does not “protect[] a government employee €from discipline based on speech made pursuant to the employee’s official duties.” 547 [J.S. at 41 3. Thereafter, the City defendants renewed their motion for summary judgment dismissing Ruotolo’s complaint on the grounds that the Report arose from Ruotolo’s official duties as a police officer, and thus was not protected by the First Amendment. In opposition, M&N argued that the amended complaint should in fairness be read to include Ruotolo’s conversation with the PBA attorney, which M&N contended were not pursuant to Ruotolo’s official job duties.
On July 19,2006, Judge Stein granted the City defendants’ motion for summary judgment, holding that Ruotolo prepared the Report pursuant to his official job duties and therefore had no First Amendment claim with respect to the Report. Ruotolo v. City of New York, 2006 U.S. Dist. LEXIS 49903, (S.D.N.Y. July 19,2006).’ Because Ruotolo had not pled any claim based upon the conversation with the PBA attorney in either the initial or amended complaints, Judge Stein based his dismissal of the civil rights action solely on claims arising from the Report itself. However, Judge Stein noted that even if he had considered Ruotolo’s discussion with the PBA attorney, Ruotolo’s First Amendment claim would fail because that discussion was held pursuant to Ruotolo’s official job duties, which included ‘‘answering questions about safety issues at the
precinct.” Ruotolo v. City of New Yo& 2006 U.S. Dist. LEXIS 49903, “12-13 (S.D.N.Y.
July 19, 2006)"

"Here, defendants have made a prima face showing that Ruotolo would not have prevailed on his First Amendment claim even if defendants had amended the complaint to include Ruotolo’s conversations with the PBA attorney in April, 2000. The First Amendment does not protect public employees from adverse employment decisions based on communications they make pursuant to their official duties, see Weintraub v. Bd, of Educ., 593 F.3d 196, 200-01 (2d Cir. 2010), and defendants have submitted sufficient evidence to show that Ruotolo’s conversation with the PRA attorney was made pursuant to his official duties."

"Defendants have also shown that Ruotolo would not have succeeded on a Due Process claim based on the City defendants’ deprivation of Ruotolo’s’s firearms. Where a government agency randomly and arbitrarily deprives a citizen of a protected property interest, due process is satisfied if the state provides an adequate post-deprivation remedy. Hellenic Am. Neighborhood Action Comm. v. New York City, 101 F.3d 877, 880 (2d Cir. 1996)."
 

Legal Malpractice insurance companies have two big exclusions. One is late notice of a claim and the other is acts outside the policy coverage. Late notice is a constant danger to the insured. Carriers take the position that as soon as the attorney knows there has been a mistake he is obligated to tell the carrier. Insureds take the position that if they tell the carrier as soon as they are served with a complaint, it is early enough. The cases run between the two extremes.

Here, however, inK2 Inv. Group, LLC v American Guar. & Liab. Ins. Co. ; 2012 NY Slip Op 00001 
Appellate Division, First Department we see both bad faith and exclusions. They do not work out to the carrier’s benefit.
 

"Plaintiffs are limited liability companies that made multiple loans totaling approximately $3 million to nonparty Goldan, LLC of which defendant’s insured, Jeffrey Daniels, an attorney, was a member. In the legal malpractice action underlying this action, it was alleged that as attorney for plaintiffs, Daniels undertook to record mortgages in plaintiffs’ favor to secure those loans, and to obtain title insurance, and that he failed to do so, rendering plaintiffs’ investments unsecured. Goldan became insolvent and never made any payments on the loans. The legal malpractice action alleged that as a consequence of Daniels’s negligent failure to record the mortgages or obtain title insurance, plaintiffs did not have security in the mortgaged properties, and the promissory notes evidencing the loans became uncollectible.

Plaintiffs demanded $450,000 from Daniels in full settlement of their claims. This amount was well within the $2 million aggregate and $2 million per-claim limits of the lawyers professional liability insurance policy issued to Daniels by defendant. However, defendant disclaimed its duty to defend or indemnify based upon two exclusions in the policy. One exclusion was for claims based upon or arising out of the insured’s capacity or status as an officer, director, etc., of a business enterprise. The other exclusion was for any claim arising out of the alleged acts or omissions of the insured for any business enterprise in which he had a controlling interest.

After Daniels failed to appear in the malpractice action, a default judgment was entered against him in the amounts of $2,404,378.36 in favor of plaintiff K2 and $688,716.00 in favor of plaintiff ATAS. Daniels then assigned to plaintiffs all his claims against defendant, including bad faith claims. [*2]

Having disclaimed its duty to defend its insured in an action that culminated in a default judgment, defendant "cannot challenge the liability or damages determination underlying the judgment" (Lang v Hanover Ins. Co., 3 NY3d 350, 356 [2004]). Nor can it raise defenses to plaintiffs’ claim against Daniels including the applicability of any asserted policy exclusions (Lang at 356).

"To be relieved of its duty to defend on the basis of a policy exclusion, the insurer bears the burden of demonstrating that the allegations of the complaint in the underlying claim cast the pleadings wholly within that exclusion, that the exclusion is not subject to any other reasonable interpretation, and that there is no possible factual or legal basis upon which the insurer might be eventually obligated to indemnify its insured (citations omitted)" (Utica First Ins. Co. v Star-Brite Painting & Paperhanging, 36 AD3d 794, 796 [2007]). No material issue of fact exists as to whether the allegations of plaintiffs’ legal malpractice claims are based, even in part, upon Daniel’s acts or omissions in his capacity as an officer, director, etc., of a business enterprise or any acts or omissions for a business enterprise in which he had a controlling interest, so as to bring them within either of the exclusions invoked by defendant (id). Rather, the allegations of legal malpractice were focused solely on Daniels’s negligence as plaintiffs’ counsel. "
 

We believe the legal malpractice case based upon an unsuccessful medical malpractice case is among the most difficult cases of any to litigate.  The practitioner must understand medical malpractice as well as legal malpractice, an in Vitale v Meiselman  2013 NY Slip Op 30910(U)
April 25, 2013  Sup Ct, New York County  Docket Number: 108969/12  Judge: Eileen A. Rakower there is the additional layer of New Jersey v. New York law with which to contend,

"This is an action for legal malpractice arising from defendants  Meiselman & Gordon LLP, Alvin Gordon, and Michael Meiselman’s (collectively, “Defendants”) representation of plaintiffs Felicia Vitale and Louis Vitale (collectively, “Plaintiffs”) in a medical malpractice action that was dismissed by the United States District Court of New Jersey (‘the District Court”) with prejudice.. This action was commenced on August 3, 201 1. In its initial Complaint, Plaintiffs asserted a claim for legal malpractice based on Defendants’ failure to comply with the New Jersey Affidavit of Merit statute, N.J.S.A. 2A: 53A-26 to 29. Issue was joined on or about October 1 1 , 20 1 1. Plaintiffs then moved for leave to file a supplemental summons and amended complaint by motion dated March 28,2013
to add a claim based on Defendants’ failure to name the individual parties who had rendered care and treatment services, thereby limited Plaintiffs’ recovery. That motion was granted. Defendants answered the amended complaint on or about September 1 1,2012, denying that claim.
 

Plaintiffs move for an Order granting them partial summary judgment pursuant to CPLR $3212 as to the issue of negligence/liability against Defendants for legal malpractice in causing the underlying medical malpractice action to be dismissed with prejudice due to their failure to comply with New Jersey’s Affidavit of Merit statute, N.J.S.A. 2A53A-26 to 29. Plaintiffs state that they are “not seeking summary judgment on the ultimate issue of whether Defendants committed legal malpractice,” but rather on the “’sole issue of whether the defendant was negligent, an issue that has already been determined in the underlying action.’’

As plaintiffs’ expert Fruhling asserts in his affidavit, the New Jersey Affidavit of Merit Statute requires “a plaintiff, in an action for personal injuries, wrongful death or property damage resulting from an alleged act of malpractice or negligence by a licensed person in his profession or occupation, to supply an affidavit within 60 days following the date of the filing of the answer to the complaint by the defendant.” Fruhling asserts that the statute requires the expert to opine that there is a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment,
practice or work that is the subject of the litigation fell outside acceptable professional or occupational standards or treatment practices. In Plaintiffs’ underlying medical malpractice case, Defendants submit the Affidavit of Merit of Salvatore Tedesco, M.D., a physician certified in the field of general surgery, who did not have a board certification in psychiatry and had no experience in the use of ECT and did not treat psychiatric patients in his clinical practice. Fruhling states that “an
attorney’s retention of a general surgeon to execute an Affidavit of Merit in support of a psychiatric malpractice claim was a departure from good and accepted legal malpractice.” Fruhling concludes that Defendants “failed to exercise the degree of care, skill and diligence commonly possessed and exercised by a member of the legal profession in New Jersey, and such failure led to the dismissal of Plaintiffs underlying action on the merits, with dismissal.”

Here, as the parties present conflicting expert affidavits concerning whether defendants were negligent in failing to exercise that degree of care, skill and diligence commonly exercised by an ordinary member of the legal community, Plaintiffs’ summary judgment motion is denied. Defendants’ cross motion for summary judgment as to Plaintiffs’ legal malpractice claims is also denied in light of issues of fact that exist in this case. Defendants have not established prima facie entitlement to summary judgment as to these claims. While Defendants allege that Plaintiffs have failed to demonstrate any evidence of proximate cause to support their legal malpractice action, Plaintiffs point to the affidavit of Dr. Goldstein (that had been submitted by Defendants on behalf of
Plaintiffs in the underlying action), who opines, with a reasonable degree of medical psychiatric certainty, that the treatment rendered at the Carrier Clinic departed from accepted standards of psychiatric practice and proximately caused Ms. Vitale serious and permanent injuries. Furthermore, Defendants have not established entitlement to summary judgment on Plaintiffs’ claim that they were negligent in limiting Plaintiffs’ recovery to $250,000 and by only naming Carrier Clinic as a party defendant. Defendants contend that they would have later named individual
defendants pursuant to the relation back doctrine. Plaintiffs state that Defendants have failed to demonstrate that the doctrine applied, and an amendment would have been permitted. As such, issues of fact exist with regard to this claim."

Yes, they are, and Soja v Keystone Trozze, LLC   2013 NY Slip Op 03147   Decided on May 2, 2013  Appellate Division, Third Department  is an example of their application.  In this professional malpractice (architects/house designers) plaintiff alleges that they built the house in violation of FEMA / flood elevation principals.
 

"Here, plaintiffs allege that a letter they received from Keystone in 2001 proves that Keystone failed to use the flood elevation report provided by plaintiffs’ surveyor or to consult with the local Federal Emergency Management Agency coordinator when designing the home, as Keystone was contractually obligated to do [FN1]. Plaintiffs claim that, as a result of Keystone’s allegedly faulty design plans, the first floor of their home was built almost two feet lower than applicable regulations allow, leading to increased flood insurance premiums, among other things. Plaintiffs contend that Keystone’s conduct constitutes gross negligence, abrogating the limitation of liability clause. "

""As a general rule, parties are free to enter into contracts that absolve a party from its own negligence or that limit liability to a nominal sum" (Abacus Fed. Sav. Bank v ADT Sec. Servs., Inc., 18 NY3d 675, 682-683 [2012] [citations omitted]). As a matter of public policy, however, exculpatory or limitation of liability clauses are not enforceable in the face of grossly negligent conduct (see id. at 683; Sommer v Federal Signal Corp., 79 NY2d 540, 554 [1992]; Kalisch-Jarcho, Inc. v City of New York, 58 NY2d 377, 384-385 [1983]). "This applies equally to contract clauses purporting to exonerate a party from liability and clauses limiting damages to a nominal sum" (Sommer v Federal Signal Corp., 79 NY2d at 554). "

We disagree. The parties do not dispute the legal standard to be applied in determining whether conduct amounts to "gross negligence." In this context, it is settled that "gross negligence differs in kind, not only in degree, from claims of ordinary negligence. It is conduct that evinces a reckless disregard for the rights of others or smacks of intentional wrongdoing" (Finsel v Wachala, 79 AD3d 1402, 1404 [2010] [internal quotation marks and citations omitted]; see Abacus Fed. Sav. Bank v ADT Sec. Servs., Inc., 18 NY3d at 683).

In our view, even assuming that the letter relied upon by plaintiffs may ultimately be used to prove a breach of contract or professional malpractice by Keystone, it does not raise a question of fact as to whether Keystone was grossly negligent. That is, while plaintiffs may have stated causes of action based upon breach of contract and common-law negligence, the conduct alleged does not evince the necessary reckless indifference to the rights of others that would render the limitation of liability clause unenforceable (see Colnaghi, U.S.A. v Jewelers Protection Servs., 81 NY2d 821, 824 [1993]; David Gutter Furs v Jewelers Protection Servs., 79 NY2d 1027, 1029 [1992]; Rector v Calamus Group, Inc., 17 AD3d 960, 961-962 [2005]; compare Abacus Fed. Sav. Bank v ADT Sec. Servs., 18 NY3d at 683-684; Kalisch-Jarcho, Inc. v City of New York, 58 NY2d at 385). Accordingly, Supreme Court properly granted partial summary judgment in Keystone’s favor.

ENGLAND and MIDWEST GEMS, INC., -against- . FELDMAN and FELDMAN LAW GROUP, Defendants.11 Civ. 1396 (CM) UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK; 2011 U.S. Dist. LEXIS 36382; , is as good a primer in the general and substantive laws of legal malpractice as one might read. There, Judge McMahon tells us:

"Plaintiffs’ First Cause of Action alleges a legal malpractice claim against Defendants. Defendants argue that Plaintiffs have not pleaded facts tending to show that Defendants were negligent or that Defendants caused Plaintiffs harm. Yes, they have."

"Thus, a plaintiff "must . . . establish[] that the attorney failed to exercise that degree of care, skill, and diligence commonly possessed and exercised by a member of the legal community." Stokes v. Lusker, 2009 U.S. Dist. LEXIS 23471, 2009 WL 612336, at *10 (S.D.N.Y. Mar. 4, 2009) (quoting Hatfield v. Herz, 109 F. Supp. 2d 174, 180 (S.D.N.Y. 2000)).

"To [*10] establish the elements of proximate cause and actual damages for a claim of legal malpractice, the plaintiff must show that ‘but for the attorney’s negligence, what would have been a favorable outcome was an unfavorable outcome.’" Stonewell Corp., 678 F. Supp. 2d at 209 (quoting Zarin v. Reid & Priest, 184 A.D.2d 385, 585 N.Y.S.2d 379, 381 (N.Y. App. Div. 1992)). "The failure to establish proximate cause requires dismissal of the legal malpractice action, regardless of whether it is demonstrated that the attorney was negligent." Schwartz v. Olshan Grundman Frome & Rosenzweig, 302 A.D.2d 193, 753 N.Y.S.2d 482, 486 (N.Y. App. Div. 2003).
 

Plaintiffs allege facts tending to show that Feldman’s conduct in the Underlying Lawsuit fell below the standard of care and diligence commonly possessed by other members of the bar. Moreover, Plaintiff’s allege that Feldman’s negligence was the proximate cause of Plaintiffs’ damages—specifically, the loss of certain trademark rights in the "Iceman" mark (Compl. ¶ 47), the inability to assert valid cross-claims and third-party claims against other parties (id. ¶ 40), and the payment of unnecessary legal fees (id. ¶ 47). Plaintiffs’ allegations are sufficient to plead a claim for legal malpractice in New York as they allege facts tending to show attorney negligence by Defendants and that Defendants’ negligence is the proximate cause of the damage Plaintiffs’ suffered.

Under New York law, where a claim for negligence, breach of fiduciary duty, breach of contract, or failure to disclose a conflict of interest are premised on the same facts and seek the identical relief as a claim for legal malpractice, these claims are "redundant and should be dismissed." Nordwind, 584 F.3d at 432-33 (quotation marks omitted); accord Amadasu v. Ngati, 2006 U.S. Dist. LEXIS 19654, 2006 WL 842456, at *9 (E.D.N.Y. Mar. 27, 2006) (dismissing plaintiff’s claims for breach of contract, breach of fiduciary duty, negligent misrepresentation, negligent performance, and gross negligence as duplicative). Plaintiffs’ claims for breach of contract and breach of the implied covenant of good faith and fair dealing arise from the same facts as the legal malpractice claim in and do not allege any distinct damages other than the damages suffered as a result of the legal malpractice. See Financial Services Vehicle Trust v. Saad, 72 A.D.3d 1019, 900 N.Y.S.2d 353, 354 (N.Y. App. Div. 2010); [*14] see also Joyce v. Thompson Wigdor & Gilly LLP, 2008 U.S. Dist. LEXIS 43210, 2008 WL 2329227, at *14 (S.D.N.Y. June 3, 2008) (citing Norwind v. Rowland, 2007 U.S. Dist. LEXIS 75764, 2007 WL 2962350, at *4 (S.D.N.Y. Oct. 10, 2007)) (breach of fiduciary duty and breach of contract).

Accordingly, Counts Two and Three are dismissed as duplicative of the legal malpractice claim."