Attorneys across the country practice their profession with a mind to avoid a potential malpractice claim against them. However, the tort of legal malpractice is largely misunderstood. Too often, one attorney will decry another's conduct as being malpractice without understanding what actually constitutes actionable malpractice. Others—wrongfully—criticize the legal system as favoring attorneys by making the tort nearly impossible to prove. Again, this arises from a complete misunderstanding of what a cause of legal malpractice is, and what it is not.

Cause of Action

Legal malpractice is a specialized form of the tort of negligence. Chase Sci. Research v. NIA Group, 96 N.Y.2d 20, 25 (2001). It should be noted that a claim of legal malpractice can arise from breach of contract; such a claim requires that the attorney failed to provide a result specified in an agreement. O'Shea v. Brennan, No. 02 Civ. 3396, 2004 U.S. Dist. LEXIS 8919, *7, 2004 WL 1118109 (S.D.N.Y. 2004). Regardless of how the claim is couched, New York's Legislature has seen fit to set the statute of limitations for all non-medical malpractice claims at three years regardless of whether the claim is based upon negligence or breach of contract. NYCPLR 214(6). This is the same limitations period for negligence. NYCPLR 214(5).

The elements of legal malpractice generally parallel the elements of negligence. Negligence requires proof of (1) a duty or obligation recognized by law, requiring the party to conform to a certain standard of conduct; (2) a breach by the party of that specific duty; (3) a reasonably close causal connection between the conduct and the resulting injury, commonly referred to as proximate cause; and (4) actual damage or loss to another. Nicholson v. Erie Ry. Co., 41 N.Y. 525 (1870); Gottesman v. Graham Apts, 47 Misc.3d 1213(A) (N.Y. Civ. Ct. 2015). The elements of legal malpractice are (1) an attorney-client relationship or a relationship sufficiently approaching privity; (2) conduct that falls below the acceptable standards of practice for the legal profession; (3) proximate cause; and (4) actual and ascertainable damages. Schneider v. Finmann, 15 N.Y.3d 306, 309 (2010); Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442 (2007).

While merely a specified form of negligence, it is a mistake to compare legal malpractice to the most common negligence tort brought throughout the state: the personal-injury action. This is because legal malpractice is an injury to property as it involves loss of—or damage to—a legal right. County of Chautauqua v. Int'l Ins. Co., 724 F. Supp. 1112, 1114-1115 (W.D.N.Y. 1989); Cleveland v. Farber, 46 A.D.2d 733 (4th Dept. 1974). Legal rights are considered personal property in New York. N.Y. Gen. Const. Law §39. This distinction is important because it affects both causation and damages, as discussed below.

The Duty Element: Privity

Courts in New York have a strict privity requirement when it comes to legal malpractice. Volpe v. Canfield, 237 A.D.2d 282, 283 (2d Dept. 1997); Spivey v. Pulley, 138 A.D.2d 563 (2d Dept. 1988). This element sets legal malpractice claims apart from other negligence cases, such as those involving negligent motorists, and has been seen as an unfair burden on legal malpractice claimants. A. Bluestone, “Are the Courts Punishing Legal Malpractice Plaintiffs?” NYLJ, April 9, 2015.