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Carefully Drafted Engagement Letter Defeats Legal Malpractice Claim

In Flusser v. Bikel, 2019 NY Slip Op 32847(U), the plaintiff was involved in a contentious divorce. She discharged one firm and then hired the Defendant law firm (Bikel v. Mandarano) to represent her. At the conclusion of the divorce case, Plaintiff filed a legal malpractice claim against the Defendant law firm. In her complaint Plaintiff alleged that the Defendants had failed to sue prior counsel for alleged malpractice by those lawyers during the divorce case.

The Defendants responded that they had entered into an engagement agreement with Plaintiff under which Defendants representation would be limited to two areas:  “(i) “the prosecution or defense of a divorce action;” and (ii) “the prosecution or defense of a Family Court proceeding concerning custody, visitation and support proceedings, including the attempt to negotiate a resolution of the matter.'”

The trial court dismissed the legal malpractice action on the ground that the Defendants were not retained to investigate or prosecute a legal malpractice claim: The reasoning:

In the instant case, the retainer agreement enumerated the specific legal services that the defendant law firm would provide, and did not include a duty to provide any representation or advice with respect to the former attorney’s claim against plaintiff for unpaid legal fees or with respect to plaintiff’s potential claim against her former attorney for alleged legal malpractice. See, AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 435 (2007); Keld v Giddins Claman, LLP, 170 AD3d 589, 589 (1st Dep’t 2019).[2]

Thus, there is no basis for plaintiff to assert a claim against defendants for legal malpractice based on the firm’s purported failure to `thoroughly investigate’ and/or preserve a potential claim against plaintiff’s former attorney, or to advise plaintiff with regard to a matter wholly outside the scope of the firm’s agreed upon representation.

Other portions of the malpractice claim were dismissed because Plaintiff failed to allege how she was damaged or how the Defendants breached the standard of care.

The Amended Complaint also fails to state a claim for legal malpractice against defendants based on their alleged failure to seek interim counsel fees in the matrimonial action, since it is unrefuted that any claim for legal fees would have been governed by, and limited to, the circumstances set forth in Article XIII of the Separation Agreement. See, Klein v Klein, 246 AD2d 195 (1st Dep’t 1998).

Finally, the Amended Complaint fails to state a claim for legal malpractice based on defendants’ purported failure to obtain the case file from plaintiff’s former attorneys, as plaintiff has failed to allege that she sustained any resulting damages. Russo v Feder, Kaszovitz, Isaacson, Weber, Skala & Bass, supra at 67.

Comment: this case is an example of why an attorney should draft an engagement letter that explains what the lawyer will do and, where necessary, limits the scope of the representation. Limiting the scope of the legal representation can defeat an unanticipated legal malpractice claim.

If you have a question about a legal malpractice claim, do not hesitate to contact me.

Ed Clinton, Jr

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