Without specifically saying so, a Hiscock & Barclay blog opines that collectability is the burden of plaintiff in the Second Department. However, there is a recent conflicting case in the First Department, Lindenman v. Kreitzer, 7 AD3d 30 [1st Dept 2004], see: 7/11/05 “Collectability in Attorney Malpractice” on this site.

The most common causes of attorney malpractice litigation:

1.Poor communication with the client
Always at the base of a professional malpractice lawsuit
2.Statute of Limitations problems
3.Suing a client over the bill.
Often precipitates a malpractice lawsuit
4.Notice of Claim problems
Includes municipal, agency, Court of Claims, private notice requirements, and other condition precedent situations
5.Calendar control problems
Marking off calendar, non-appearance at conferences, defaults, abandonment of motions
6.Failure to supply necessary documents
Affidavit of merits, Admissible evidence affidavit for Summary Judgment, Doctor’s affidavit for threshold cases, affidavit of a reasonable excuse and a meritorious cause of action;
7.Discovery Failures
Preclusion, dismissal for willful, contumacious behavior, failure to get necessary information for use at trial, failure to serve expert responses
8.Conflicts of interest
Matrimonial, commercial situations
9.Escrow and fee violations
Non-refundable fees, holding back escrows, failure to remit
10.Settlements and Stipulations without authority
Attorney’s agreement will bind client even against client’s wishes

What are the elements of Professional Malpractice?

Malpractice is a professional’s failure to use minimally adequate levels of care, skill or diligence in the performance of the professional’s duties, causing harm to another. In New York, attorney malpractice is defined as a “deviation from good and accepted legal practice, where the client has been proximately damaged by that deviation, but for which, there would have been a different, better or more positive outcome.”

The first element of a relationship between the client and the professional was previously discussed. The second element, deviation, is shown by evidence, not necessarily expert, which shows that the acts of the professional fell so below the good and accepted practice of law in New York, that a jury would be permitted to find that the acts below standard.

Expert testimony is necessary when the deviation is subtle; an example could be the failure to supply an affidavit of merits to restore a case marked off calendar, the failure to respond to a CPLR 3216 notice, or failures in response to a motion for summary judgment. Expert testimony is not always necessary however. None is needed to demonstrate the deviation in failing to file within the statute of limitations. Bad outcome do not necessarily equal a deviation. Furthermore, questions of judgment of strategic choice cannot serve as the basis of malpractice. An attorney is permitted the reasonable choice of strategy, if supported by acceptable reasoning. The strategic choice must be reasonable both objectively and subjectively. The difference between strategic choice and mistake are subtle, and create the most difficult cases.

The third element of proximate cause encompasses both the typical analysis that arises in all negligence litigation and the additional element of “but for.” The plaintiff must demonstrate not only that the deviation was a substantial cause of the poor outcome, but must additionally show that “but for” the deviation there would have been a different, better or more positive outcome. An example of this potential difficulty arises in an automobile accident. No matter how many deviations are shown, it may be that the maximum insurance for the other driver limits the recovery. If that is true, it will be impossible to show that “but for” the deviation, more than the policy limit was available and could have been recovered from the defendant.

Presented by the Law offices of Andrew Lavoott Bluestone
233 Broadway, 27th Floor, New York, NY 10279
[ph] 212.791.5600