In professional negligence cases, as in a wide swath of litigation cases, a special relationship is necessary before an entity (real estate agent, non-attorney, non-physician professional, municipality) might be liable for shortcomings.  So it is with insurance agents in STB Invs. Corp. v Sterling & Sterling, Inc. 2019 NY Slip Op 08606 Decided on December 3, 2019
Appellate Division, First Department.

“Issues of fact exist as to whether a special relationship arose between plaintiff STB Investments Corporation and its managing agent plaintiff 303 West 42nd Street Realty Co. (plaintiffs), on the one hand, and defendant insurance broker, on the other, that imposed on defendant a duty to advise plaintiffs as to insurance coverage that would have included the loss arising from plaintiffs’ demolition project (see Voss v Netherlands Ins. Co., 22 NY3d 728, 735 [2014]). Plaintiffs contend that the special relationship arose from an interaction with defendant in which they relied on defendant’s expertise as to coverage. There is evidence that plaintiffs’ property manager, who allegedly had never before purchased insurance for a demolition project, requested that defendant obtain adequate coverage for that particular risk, and that defendant agreed to do so, reviewed the demolition contract as part of its efforts, and discussed with plaintiffs the demolition contractor’s coverage in the larger context of determining the appropriate level of coverage to obtain for plaintiffs (see NWE Corp. v Atomic Risk Mgt. of N.Y., Inc., 25 AD3d 349 [1st Dept 2006]).”

OK…it happens.  It happens a lot.  Best if the mistake is caught early on.  Cornwall Warehousing, Inc. v Lerner  2019 NY Slip Op 02825 [171 AD3d 540] April 16, 2019 Appellate Division, First Department.

“Plaintiffs demonstrated a reasonable excuse for their default (CPLR 5015 [a] [1]), based on law office failure, as detailed in the affirmation of their former counsel who miscalendared the motion (CPLR 2005; People’s United Bank v Latini Tuxedo Mgt., LLC, 95 AD3d 1285, 1286 [2d Dept 2012]). Plaintiffs then moved to vacate the order entered on their default, showing that they had a meritorious defense to the underlying motion to strike their complaint pursuant to CPLR 3126 (c), since they were not in default of any disclosure order (see John Quealy Irrevocable Life Ins. Trust v AXA Equit. Life Ins. Co., 151 AD3d 592, 593 [1st Dept 2017], lv dismissed 30 NY3d 1091 [2018]; DaimlerChrysler Ins. Co. v Seck, 82 AD3d 581, 582 [1st Dept 2011]). Plaintiffs also demonstrated a potentially meritorious cause of action by providing the affidavit of their president setting forth the basis of their legal malpractice claim (see Cheri Rest. Inc. v Eoche, 144 AD3d 578, 579-580 [1st Dept 2016]).

In light of the strong public policy of this State to dispose of cases on their merits, the court improvidently exercised its discretion in denying plaintiffs’ motion to vacate the order entered on default (DaimlerChrysler Ins. Co. v Seck, 82 AD3d at 582; see Chelli v Kelly Group, P.C., 63 AD3d 632 [1st Dept 2009]).”

In an extremely detailed analysis, the Second Department illustrates the difference between NY and Delaware attorney-privilege law in Askari v McDermott, Will & Emery, LLP  2019 NY Slip Op 08547 Decided on November 27, 2019 Appellate Division, Second Department
Austin, J., J.

“The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law” (Upjohn Co. v United States, 449 US 383, 389; see Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371, 377). “Its purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice” (Upjohn Co. v United States, 449 US at 389; see Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d at 377). “The privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer’s being fully informed by the client” (Upjohn Co. v United States, 449 US at 389).

1. New York Law

Under New York law, the attorney-client privilege regarding pre-merger communications between an attorney and his or her client which are related to a business/corporate merger does not fully pass to the new or surviving company/buyer, but remains with the former shareholders of the prior company/seller (see Tekni-Plex, Inc. v Meyner & Landis, 89 NY2d at 130). In Tekni-Plex, the Court of Appeals determined that the buyer in a corporate acquisition controlled the attorney-client privilege as to some, but not all, of the pre-merger communications (see id. at 127). In that case, Tekni-Plex, Inc. (hereinafter the original Tekni-Plex) was a Delaware corporation which had 18 shareholders and a 5-member board of directors. Tom Y. C. Tang was a director as well as a shareholder (see id.). In 1986, Tang became the sole shareholder, president, chief executive officer, and sole director of the original Tekni-Plex (see id.).”

“With respect to disclosure of the law firm’s files to the new Tekni-Plex, the Court of Appeals determined that “[a]s for confidential communications between [the original] Tekni-Plex and [the law firm] generated during the law firm’s prior representation of the corporation on environmental compliance matters, authority to assert the attorney-client privilege passed to the corporation’s successor management” (id. at 130). However, the Court distinguished the communications made during the acquisition:

“New Tekni-Plex, however, does not control the attorney-client privilege with regard to discrete communications made by either [the original] Tekni-Plex or Tang individually to [the law firm] concerning the acquisition—a time when [the original] Tekni-Plex and Tang were joined in an adversarial relationship to Acquisition. Consequently, new Tekni-Plex cannot assert the privilege in order to prevent [the law firm] from disclosing the contents of such communications to Tang. Nor is new Tekni-Plex entitled to the law firm’s confidential communications concerning its representation of [the original] Tekni-Plex with regard to the acquisition” (id.).

Thus, the Court of Appeals made a clear distinction between confidential communications regarding a company’s ongoing operations and those related to its acquisition (see id. at 136). The Court noted that, during the acquisition negotiation process, the predecessor company and its shareholders were in an adversarial relationship with the successor company (see id. at 138-139). Therefore, the original Tekni-Plex continued to control the attorney-client privilege with respect to confidential communications concerning the acquisition, and was entitled to refuse to disclose such communications to the new Tekni-Plex (see id. at 138-139; Fochetta v Schlackman, 257 AD2d 546, 546 [“Given the extent of plaintiff’s ownership interest and managerial involvement in defendant corporations prior to the disputed stock surrender, the motion court properly determined that the attorney-client privilege was not properly invoked by defendants to deny plaintiff access to otherwise privileged pre-surrender materials essential to the proof of his claims”]; see also Orbit One Communications, Inc. v Numerex Corp., 255 FRD 98, 104, 106-107 [SD NY] [“Allowing Numerex to control Old Orbit One’s privilege would lead to a fundamentally unfair result. . . . Numerex cannot both pursue the rights of the buyer and simultaneously assume the attorney-client rights of the buyer’s adversary, Old Orbit One. Old Orbit One retained ownership of, and continues to control, the attorney-client privilege as to confidential communications with [the law firm which represented it throughout the acquisition negotiations] concerning the acquisition transaction” [citation omitted]).”

Judge Billings untangles a complicated web of courts, causes and conclusions in Alphas v Smith  2019 NY Slip Op 33427(U) November 15, 2019 Supreme Court, New York County Docket Number: 155790/2015.  Questions of when the representation began, who has privity, what was the scope of the representation and did other attorneys cut off the liability arc all are decided.

I. THE FOURTH AMENDED COMPLAINT
I The current complaint alleges that plaintiffs retained defendants on or about September 1, 2012, to represent plaintiffs Alphas and Alphas Company of NY and a separate corporation, Alphas Company, Inc., in several pending actions. Alphas is currently the sole shareholder of Alphas Company of NY and a 50% shareholder with his brother, Yanni Alphas, of Alphas Company, Inc. based im Boston, Massachusetts.

Plaintiffs claim they retained defendants’ legal services after being served with a complaint in an underlying action against Alphas Company of NY seeking $11,450.04 for its delinquent contributions to its employees’ union Pension Fund. A letter dated September 20, 2012, from the Pension Fund to Yanni Alphas, theniChief Executive Officer of Alphas Company of NY, notified it of the Pension Fund’s determination that it had ceased contributions to the Pension Fund, thus effecting its withdrawal from the Pension Fund for that year and incurring a liability of $983,579.74 to the Pension Fund. The withdrawal letter further notified Alphas Company of NY that this liability was payable in 44 quarterly installments, that Alphas Company of NY was entitled within 90 days to request the Pension Fund to review its d$termination, and that the final avenue of relief was arbitration. 29 U.S.C. § ·1399(b). The Pension Fund sent a copy of this letter to Smith.”

“Second, while plaintiffs stipulate that the Letter of Engagement is authenticated and admissible for the purpose of determining defendants’ motion, the letter’s execution date does not bar Alphas’s legal malpractice claim against defendants either. The execution date may commence the attorney-client relationship, but is not the single determinative factor in evaluating whether Alphas may claim legal malpractice against defendants. Later dates during the attorney-client relationship determine when his legal malpractice claim accrued: most
significantly, when the malpractice and injury occurred. Johnson ,
v. Proskauer Rose LLP, 129 A.D.3d 5~, 67 (1st Dep’t 2015); Cabrera v. Collazo, 115 A.D.3d 147, 150 (1st Dep’t 2014); Goldman v. Akin Gump Strauss Hauer & Feld LLP, 46 A.D.3d 481, 481 (1st Dep’t 2007). Plaintiffs allege that defendants’ malpractice occurred well into 2013, when Alphas undisputedly was the sole shareholder of Alphas Company of NY. Because there was an attorney-Client relationship between Alphas and defendants based on Alphas’s sole ownership of Alphas Company of NY when the alleged malpractice occurred, Alphas may pursue an individual claim regardless whether he was less than a 100% owner in 2012. Johnson v. Proskauer Rose LLP, 129 A.D.3 at 67; Cabrera v.
Collazo, 115 A.D.3d at 150; Goldman v. Akin Gump Strauss Hauer &
Feld LLP, 46 A.D.3d at 481.

For all these reasons, defendants’ documentary evidence does
not resolve the issue whether Alphas.maintained an attorney client relationship with defendants when plaintiffs’ legal malpractice accrued, as a matter of law, and Alphas at minimum raises a factual issue of such a relationship. Therefore the court denies’ defendants’ motion to dismiss Alphas’s action based on documentary evidence. C.P.L.R. § 3211(a) (1).”

We’re proud to announce that the New York Law Journal published out Outside Counsel column entitled “The Basics of Legal Malpractice” today.

We hope you enjoy.  “The term “legal malpractice” is loosely used, not only by the public but by attorneys as well. Generically, it conveys something wrong, boneheaded or contrary to the way things are usually done. It can sometimes mean that otherwise reputable work ended in a bad result.

When attorneys comment on the work of other attorneys, they often resort to an attorney malpractice scale. What they mean is that another attorney’s work fell below the standard believed to be “good and acceptable.” However, departure from good practice is just the start of the analysis.”

May plaintiff sue the former attorney after settling the underlying case?  It depends on whether plaintiff was effectively compelled to settle the underlying case or not.  This differs from a situation where the underlying case is lost.  How to tell whether the client was compelled or merely took the easy path?  Glenwayne Dev. Corp v James J. Corbett, P.C.  2019 NY Slip Op 06069 [175 AD3d 473] August 7, 2019 Appellate Division, Second Department discusses how.

“”In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney ‘failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession’ and that the attorney’s breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages” (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007], quoting McCoy v Feinman, 99 NY2d 295, 301 [2002]; see Darby & Darby v VSI Intl., 95 NY2d 308, 313 [2000]). “To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence” (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 442; see Davis v Klein, 88 NY2d 1008, 1009 [1996]). A legal malpractice cause of action “is viable, despite settlement of the underlying action, if it is alleged that settlement of the action was effectively compelled by the mistakes of counsel” (Bernstein v Oppenheim & Co., 160 AD2d 428, 430 [1990]; see Maroulis v Sari M. Friedman, P.C., 153 AD3d 1250, 1251 [2017]; Keness v Feldman, Kramer & Monaco, P.C., 105 AD3d 812, 813 [2013]; Tortura v Sullivan Papain Block McGrath & Cannavo, P.C., 21 AD3d 1082, 1083 [2005]).

In support of their motion, the defendants submitted the transcript of the court proceeding setting forth the terms of the settlement of the underlying action, which conclusively established that the plaintiff was not coerced into settling (see Schiller v Bender, Burrows & Rosenthal, LLP, 116 AD3d 756, 757 [2014]; Pacella v Whiteman Osterman & Hanna, 14 AD3d 545 [2005]; Laruccia v Forchelli, Curto, Schwartz, Mineo, Carlino & Cohn, 295 AD2d 321, 322 [2002]). The plaintiff’s allegations that it was coerced into settling the underlying action were utterly refuted by the admissions of its principals during the settlement proceeding that they had discussed the terms of the settlement with their attorneys, understood the settlement terms, and had no questions about them; that they were entering into the settlement freely, of their own volition, and without undue influence or coercion; and that they were satisfied with their legal representation (see Schiller v Bender, Burrows & Rosenthal, LLP, 116 AD3d at 757-758; Boone v Bender, 74 AD3d 1111, 1113 [2010]).

Accordingly, the defendants were entitled to dismissal of the complaint pursuant to CPLR 3211 (a) (1).”

Legal malpractice issues, and definitely attorney-client privilege issues arise in Estates.  They can come up prior to death, by virtue of the death or afterwards, but in each instance there is a question of the relationship of the estate and the attorney, and who is now the “client” in terms of rights and privileges between the client (Deceased and the Estate) and the attorney.

Matter of Thomas  2019 NY Slip Op 08293  Decided on November 15, 2019 Appellate Division, Fourth Department DeJoseph, J. is an example of the attorney-client privilege issue.

“In a prior appeal, we remitted the matter to Surrogate’s Court for further proceedings on the issue of ownership of certain stock in New York State Fence Company (NYSFC) after concluding that “[w]here, as here, an asset is not included in the inventory of the estate based upon respondent fiduciary’s assertion that he is the owner of the asset, it is respondent’s burden to show a legal and sufficient reason for withholding’ the asset from the estate” (id. at 1765). Upon remittal, the Surrogate held a nonjury trial during which respondent, in his capacity as executor, [*2]waived decedents’ attorney-client privilege, and decedents’ former counsel thereafter testified that she did not include a specific bequest with respect to Anthony’s NYSFC shares in his most recent will because Anthony had already transferred those shares to respondent. After the trial, the Surrogate concluded that respondent had in fact satisfied his burden and specifically established that the shares of NYSFC were sold and transferred to respondent prior to Anthony’s death. Petitioners appeal, and we affirm.

The primary issue on appeal is one of first impression in this Department and requires us to determine whether an executor has the authority to waive a decedent’s attorney-client privilege. The Second and Third Departments have answered that question in the affirmative, and we agree.

In Mayorga v Tate (302 AD2d 11 [2d Dept 2002]), the assignee of the executor of the decedent’s estate brought a legal malpractice action against the decedent’s attorney and sought to obtain pretrial disclosure “of the file that [the attorney] maintained in connection with” his representation of the decedent (id. at 12). The attorney refused to disclose the file, claiming that it was protected by the attorney-client privilege (id.). The trial court held that the assignee could waive the privilege and that the attorney could not invoke the privilege to avoid producing the requested discovery (id.). The Second Department affirmed, stating:

“We conclude by returning to the basic thesis that it makes no sense to prohibit an executor from waiving the attorney-client privilege of his or her decedent, where such prohibition operates to the detriment of the decedent’s estate, and to the benefit of an alleged tortfeasor against whom the estate possesses a cause of action . . . That an executor . . . may exercise authority over all the interests of the estate left by the [decedent], and yet may not incidentally have the right, in the interest of that estate, to waive the [attorney client] privilege . . . would seem too inconsistent to be maintained under any system of law . . . We therefore conclude that, under the terms of CPLR 4503, just as under the common law, an executor may waive the attorney-client privilege of his or her decedent” (id. at 18-19 [internal quotation marks omitted]).

The Third Department endorsed that same view in Matter of Johnson (7 AD3d 959, 960-961 [3d Dept 2004], lv denied 3 NY3d 606 [2004]).”