In the last few weeks there have been several interesting decisions involving lawyers. The Court of Appeals recently held in a case of first impression that the failure to appeal a lower court decision in a legal malpractice action does not bar the malpractice action unless the client was likely to have succeeded on the appeal.1 In late December the Appellate Division, First Department, in a 3-2 Decision held that a law firm in a personal injury matter that retained the right to seek additional contingent fees on appeal was entitled to an additional percentage of the judgment after the successful appeal, as addressed in the post-trial retainer letter. The court held the fee arrangement is between the client and attorney and an opposing party is not an “interested” party entitled to challenge the fee arrangement in the second retainer agreement.2
Elements of Action
Malpractice actions are really two actions. Plaintiff must prove not only that the attorney was negligent but that he would have prevailed in the underlying action “but for” the attorney’s negligence; the negligence was the proximate cause of the loss; and the plaintiff suffered actual and ascertainable financial damages as a result.
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