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Buchanan v. Law Offices of Sheldon E. Green, P.C., 2023 NY Slip Op 1980 (New York Appellate Division, 2nd Department 2023), appears to be a slam dunk legal malpractice case but it was dismissed. Why? Because the plaintiff failed to plausibly allege that she would have won the underlying case.

The underlying case was a wrongful death case against a drug treatment facility. The alleged legal malpractice was the alleged failure to serve the complaint in the underlying wrongful death case. However, plaintiff failed to include sufficient allegations to show that she would have won the underlying case against the treatment facility.

The key discussion in the opinion appears here:

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The Illinois statute of limitations period governing legal malpractice cases is normally two years. The plaintiff has two years from the discovery of the injury to file suit. Illinois has another provision in the statute, which often protects lawyers involved in estate planning.

5/13-214.3(d) provides that: When the injury caused by the act or omission does not occur until the death of the person for whom the professional services were rendered, the action may be commenced within 2 years after the date of the person’s death unless letters of office are issued or the person’s will is admitted to probate within that 2 year period, in which case the action must be commenced within the time for filing claims against the estate or a petition contesting the validity of the will of the deceased person, whichever is later, as provided in the Probate Act of 1975. An action may not be commenced in any event more than 6 years after the date the professional services were performed.

For this reason, in inheritance disputes lawyers will often open an estate and start the claims period running. That leaves the aggrieved party six months to file any claims against the lawyers who drafted the estate plan. Dalessandro v. Quinn-Dalessandro, 2023 IL App (1st) 211119 is one such case. The adult children of the decedent filed a claim against their step-mother within the six month period, but they did not file against the lawyers who drafted the estate planning documents that disinherited them until after the six month period had expired.  The provision in the statute is a trap for the unwary practitioner who incorrectly believes he has two years to file a malpractice lawsuit. Nope. He only has six months to file such a claim.

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The Illinois Appellate court recently affirmed a grant of summary judgment in the case captioned Requet v. Stengel, Bailey & Robertson, 2023 IL App (3d) 210203-U. The opinion is unpublished, but it is worth reading. Requet was the managing member of PVY Development, an LLC engaged in developing and selling Walgreens stores. PVY retained the law firm of Coyle, Gilman, Stengel, Bailey and Robertson. Coyle personally converted funds belonging to PVY. Coyle was eventually disbarred. Stengel, Bailey & Robertson (Law Firm) formed in 2008 when those partners separated from Coyle. Requet sued numerous defendants, including the law firm, for legal malpractice, negligence, fraud and breach of fiduciary duty. Law Firm moved for summary judgment on the ground that there was no attorney client relationship between Requet and Coyle. Therefore, Law Firm owed no duty to Requet.

Requet argued based on Pelham v. Griesheimer, 92 IL 2d 13 (1982) that even though he was not a client of the law firm, it owed him a duty. To bring himself within the Pelham line of cases, Requet was required to show that the primary purpose of the attorney client relationship between Coyle and PVY was to benefit Requet. The Appellate Court agreed that Requet had not made that showing and affirmed the grant of summary judgment.

The reasoning:

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One of the persistent and more difficult challenges in legal malpractice cases is proving that the client would have won the underlying case but for the negligence of the lawyer. This is known as but/for causation or proximate causation. In this case the plaintiff was a superintendent of a school district. She was terminated from that position. She sued her lawyer for legal malpractice. She was unable to state a claim because she could not establish that the lawyer’s legal work was the cause of the termination. The court explains:

Here, even if the defendant had been negligent in his representation of the plaintiff in connection with the underlying matters, viewing the complaint in the light most favorable to the plaintiff (see Leon v Martinez, 84 NY2d at 87-88), it failed to plead specific factual allegations demonstrating that, but for the defendant’s alleged negligence, there would have been a more favorable outcome in the underlying matters or that the plaintiff would not have incurred any damages (see York v Frank, 209 AD3d 804, 807; Katsoris v Bodnar & Milone, LLP, 186 AD3d at 1506; Benishai v Epstein, 116 AD3d 726, 728). The plaintiff’s general contentions that but for the defendant’s negligence, she “would have litigated her claims against the Board, or in the alternative, procured a settlement agreement with better terms of compensation and otherwise far more beneficial” are speculative and, as such, cannot serve as a basis for a legal malpractice claim (see Jean-Paul v Rosenblatt,208 AD3d at 653; Katsoris v Bodnar & Milone, LLP, 186 AD3d at 1506).

Williams v. Silverstone, 2023 NY Slip Op 1917, New York Appellate Division, 2nd Department (2023).

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In Mid-City Electrical Corporation v. Peckar & Abramson, 2023 NY Slip Op 1085, the New York Appellate Division, Second Department affirmed the dismissal of legal malpractice claims against company attorneys.

First, the court ruled that the owners of Mid-City were not clients of Peckar & Abramson because they were not mentioned as clients in the engagement letter.

Second, the court held that Mid-City’s claim for legal malpractice did not state a claim because Mid-City was unable to allege that the outcome would have been different had the lawyers acted correctly. The lawyers allegedly failed to file an appeal from an adverse regulatory determination that Mid-City was not a disadvantaged business enterprise. The legal malpractice claim was dismissed because Mid-City did not allege that it would have won the appeal had the appeal been filed. Because there was no reason to believe the outcome would be different, there is no allegation of proximate causation and the case was dismissed. Proximate causation often rises up to defeat legal malpractice claims where the lawyer may have been negligent.

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One of the more obscure rules in the world of legal malpractice is that legal malpractice claims cannot be assigned. The lawyer-client relationship is one of “privity.” It is a direct relationship between the client and the lawyer. Sometimes in litigation, one party requests that the other party assign to it a legal malpractice claim against the other party’s lawyer. This is exactly what occurred in Thompson v. Harrie, No. 22-1058 (8th Circuit February 3, 2023). In this case, the claim against the lawyer was assigned by the defendant in the underlying lawsuit. Thompson had no attorney-client relationship with Harrie or the other defendants. Instead, the legal malpractice was assigned to her as part of a settlement. Courts frown on this behavior because it can leave the lawyer vulnerable to a claim from a party the lawyer never represented. In the underlying case Thompson sued Helgeson to recover for damages sustained in an automobile accident. Thompson won a judgment against Helgeson’s estate but decided not to collect. Instead, she obtained an assignment of any claim Helgeson could have made against his own attorney.

The court describes the procedural history of the case in this way:

In January 2018, Thompson sued the law firm and Nodak in South Dakota state court, alleging claims for the unauthorized practice of law, fraud and deceit, civil conspiracy, and barratry/abuse of process. The law firm removed the case to federal court, and the district court dismissed the entire suit for failure to state a claim. Following the dismissal, Thompson agreed with Helgeson’s estate that she would not execute the judgment if Helgeson’s estate assigned its potential claims against the law firm and Nodak to her. This agreement, which was reduced to writing, expressly included claims of malpractice, and directed that Thompson was entitled to all proceeds recovered from the assigned claims.

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In Julio Chicas v. Christopher J. Cassar, et al, No. 2023 NY Slip Op 00202, Appellate Division of the Supreme Court of New York, Second Department, the plaintiff sued for malpractice claiming that the lawyer defendants failed to sue a tortfeasor. The case was dismissed at the trial level, but the plaintiff successfully appealed. The reasoning:

Here, the defendants failed to establish, prima facie, that the plaintiff had no actual or ascertainable damages. “The defendant must affirmatively demonstrate the absence of one of the elements of legal malpractice” (EDJ Realty, Inc. v Siegel, 202 AD3d 1059, 1060). The complaint alleged that the damages included the failure to pursue SUM benefits, as well as the failure to pursue recovery against the alleged tortfeasor. Since it was alleged herein, inter alia, that the defendants’ legal malpractice prevented the plaintiff from obtaining a judgment against the alleged tortfeasor, the defendants had the burden of affirmatively demonstrating that the plaintiff would not have prevailed against the alleged tortfeasor or that the alleged tortfeasor did not have personal assets such that his motorist insurance policy limit that was recovered in the amount of $50,000, was the maximum judgment that could have been obtained from him (see id. at 1060). The defendants failed to do so. Accordingly, the Supreme Court should have denied that branch of the defendants’ motion which was for summary judgment dismissing the complaint.

Comment: the court is saying there may have been a possible recovery against the tortfeasor who was not pursued. This may or may not be true. The litigation is in its early stages and we cannot predict whether or not the plaintiff can prove this claim. (If the possible tortfeasor was bankrupt or insolvent, there is no possible recovery.).

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In Bei Yang v. Pagan Law Firm, PC, 2022 NY Slip Op 31007(U) Supreme Court, New York County, the plaintiff hired the lawyer for a medical malpractice case. That case settled for $1.3 million. Plaintiff then sued the lawyer for legal malpractice. Plaintiff alleged that the lawyer coerced him into accepting the settlement. The court dismissed the legal malpractice action because the plaintiff could not prove he would have recovered more than $1.3 million had he gone to trial.

The reasoning:

“Plaintiff’s own expert does not dispute Mr. Zuller’s opinion that the action would be risky to try and that a trial may have resulted in a defense verdict or a verdict lower than the settlement amount. In his affirmation, Mr. Bower states:

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In Kozal v. Snyder, 978 N.W.2d 174, the Nebraska Supreme Court held that an attorney did not commit legal malpractice because the purported error was a close call and the law was unsettled. in the underlying case, the attorney represented clients who wished to renew liquor licenses. The Nebraska Supreme Court held that the case he filed was insufficient because he failed to name as parties and serve the citizens who objected to the renewal of the liquor licenses.

Kozal then filed a claim against the lawyer, but the Nebraska Supreme Court affirmed the dismissal of that legal malpractice case as well. The court’s reasoning:

When Snyder filed the appeal underlying Kozal I, in which he did not name the citizen objectors as parties, the issue of naming citizen objectors in appeals from decisions of the NLCC was an unsettled issue of law. Additionally, Snyder did not have a duty to inform his clients regarding the unsettled area of law. We therefore find that the district court did not err when it concluded that, as a matter of law, appellees did not breach the applicable standard of care.

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We are often asked to evaluate potential malpractice claims. Here is what we need to know before we can take your case:

(a) What happened? How did things go bad? Why do you believe your lawyer was responsible? In your opinion what was the mistake of the lawyer?

(b) When did it happen? This is really important because the statute of limitations is usually two years from whenever you sustained damages from the alleged malpractice. The statute of limitations is complicated and can require extensive analysis. There are often no clear answers to this question.

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