This is an opinion of the New York Supreme Court, Appellate Division. The facts were simple. The attorney missed the applicable statute of limitations and the client’s claim was barred. In such cases, the lawyer is liable for legal malpractice if the client can prove that, but for the attorney’s error, he would have won the underlying case.
Here, the lawyer’s estate raised an unusual defense. The attorney defendant passed away before the statute of limitations on the client’s claim ran. The lawyer’s estate is really making this argument: the lawyer passed away while the client’s claim was still viable, therefore, the client could have chosen another lawyer and filed the claim in timely fashion.
The Court correctly rejected the claim:
“Plaintiff is entitled to the inference that Tanzman died as a result of a chronic, terminal illness that he knew, or should have known, presented the immediate risk that his ability to represent his clients’ interests might be impaired (see Yuko Ito v Suzuki, 57 AD3d 205, 207 [1st Dept 2008]). Here, defendants offered no evidence to elaborate on the cause or circumstances surrounding Tanzman’s death. The submitted certificate of death for Tanzman merely states that Tanzman passed away on October 24, 2010 at Memorial Sloan-Kettering Cancer Center. The record suggests that plaintiff had cancer, and that his death may have been foreseeable, but the nature and duration of his illness cannot be determined from the death certificate and defendants’ other submissions”
In other words, if the attorney died a sudden and unexpected death (think of a heart attack or an accident) the attorney’s estate might be able to raise that as a defense. Then the estate would be correct that the attorney’s failure to file did not cause an injury to the client. Here, where the lawyer had cancer, it was the lawyer’s duty to notify the client that there could be a problem and to obtain successor counsel, if needed. Lawyers have fiduciary duties to the clients – those duties are created to protect clients. Here, the Court is correctly holding that the lawyer who is terminally ill has a duty to tell his clients so they can make other plans.
In sum, this is a thoughtful opinion that considers the issue in some depth and provides guidance for the future.
Edward X. Clinton, Jr.