Defending Legal Malpractice Claims

This article, a sequel to a July 21, 2010, article, will address certain important issues, such as the lawyer’s judgment rule, the applicable statute of limitations and the continuous representation tolling doctrine. Lastly, it will address a recent New York Court of Appeals case that rules out strict privity in professional liability cases. Critical to the essential elements of proving that a lawyer’s conduct falls below the competency standard and whether the error or omission in question is the “proximate cause” of the actual economic injury is the lawyer’s judgment rule. The rule recognizes human imperfection even in the legal profession and allows the lawyer to protect herself from liability if the error proceeded from a reasonable judgment call.

In Stonewall Corp. et al. v. Conestoga Title Insurance Co., et al.¹ the U.S. District Court in the Southern District of New York articulated the rule that every pleader has to take cognizance of whether he or she set forth the elements of the cause of action for legal malpractice or in interposing an answer with affirmative defenses what elements were not sufficiently stated. The court held:

A Plaintiff must establish the following elements for a claim of legal malpractice under New York State law: (1) an attorney-client relationship, (2) attorney negligence (3) that is the proximate cause of a loss, and (4) actual damages… To succeed on a motion for summary judgment in a legal malpractice action, the defendant must establish that the plaintiff cannot prove at least one of the essential elements…

To find negligence, a court must find sufficient evidence that the defendant attorney’s conduct “fell below the ordinary and reasonable skill and knowledge commonly possessed by a member of his profession”… If the pleadings and evidence indicate no more than an “error of judgment” or a “selection of one among several reasonable courses of action,” dismissal of the claims is warranted.

Common examples of circumstances for which an attorney may be held liable include “ignorance of the rules of practice, failure to comply with conditions precedent to action…neglect to prosecute or defend an action”… Allegations that amount to nothing more than a dissatisfaction with strategic choices will not support a malpractice claim as a matter of law. (Emphasis added.)