Dispositive Motions by Legal Malpractice Defendants

A motion to dismiss or for summary judgment can be a powerful vehicle for obtaining summary dismissal of claims. Nonetheless, because legal malpractice claims allege negligence, some attorneys may have a misconception that such actions are rarely dismissed pretrial. After all, it is frequently said that negligence is a classic question of fact for the jury. However, negligence is just one element of a malpractice claim and, in order to prevail, a plaintiff must prove each and every required element. Thus, if a malpractice defendant can demonstrate as a matter of law that plaintiff will be unable to prove even just one element of its claim, the defendant should succeed on a dispositive motion.

Even where a plaintiff is capable of proving all elements, a defendant still may be able to win a dispositive motion based upon one or more affirmative defenses. Where the reason for dismissal is clearly established on the face of the complaint or through indisputable documentary evidence, such as a retainer agreement, release, judgment, or written client admission, a defendant may be able to dispose of the case by pre-answer motion to dismiss. See N.Y.C.P.L.R. 3211; Fed. R. Civ. P. 12(b)(6). Where the defense is more fact-intensive, it may be necessary to build a factual record through discovery and then demonstrate on a motion for summary judgment that there is no genuine issue of material fact. See N.Y.C.P.L.R. 3212; Fed. R. Civ. P. 56.