Scarola Malone & Zubatov LLP v. Ellner, 2021 NY Slip Op 31199(U), April 8, 2021 (Supreme Court New York County) began with a lawsuit for legal fees against a client who declined to pay. The Defendant then filed a counterclaim alleging legal malpractice. The counterclaims alleged that the law firm made several errors in representing the defendants in civil litigation essentially by refusing to accept a buyout or settlement of the underlying litigation. The court dismissed the legal malpractice counterclaim on the ground that Ellner was sophisticated and imposed his strategic plan for the case on the lawyers. The lawyers exercised judgment and did not commit malpractice.
Where a sophisticated client imposes a strategic decision on counsel, the client’s action absolves the attorney from liability for malpractice (Town of North Hempstead v Winston & Strawn, LLP, 28 AD3d 746 ; Stolmeier v Fields, 280 AD2d 342 ). Additionally, with regard to strategic decisions “the selection of one among several reasonable courses of action does not constitute malpractice” (Rosner v Paley, 65 NY2d 736, 738 ). “Attorneys may select among reasonable courses of action in prosecuting their clients’ cases without thereby committing malpractice … so that a purported malpractice claim that amounts only to a client’s criticism of counsel’s strategy may be dismissed” (Dweck Law Firm, LLP v Mann, 283 AD2d 292, 293 ). Hindsight arguments concerning selection of one of several reasonable courses of action do not state a viable cause of action for malpractice (Brookwood Cos., Inc. v Alston & Bird LLP, 146 AD3d 662, 667 ).