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).
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