Legal Malpractice

Retainer Agreements and Legal Malpractice

By (Andrew Lavoott Bluestone)

Retainer agreements or letters of engagement are required in New York, and there is a large body of law concerning attorney fees and the necessity of retainer agreements.  On a different dimension, the question of what work an attorney has agreed to perform, and the limits of that attorney's liability may well be determined by the scope of the retainer agreement.  May one, for example, limit representation to a single issue, and not be responsible for other issues?

in Douglas v Dashevsky ;2009 NY Slip Op 04187 ; Decided on May 26, 2009 ;Appellate Division, Second Department we see this issue illustrated.  Plaintiff retains attorney in a wrongful termination case, and alleges that he told her not to file a disability claim with the employer.  He says that his sole obligation was the wrongful termination matter. Is he responsible?
 

"To demonstrate entitlement to dismissal of a complaint pursuant to CPLR 3211(a)(1), the documentary evidence submitted must conclusively establish a defense to the asserted claims, as a matter of law (see Leon v Martinez, 84 NY2d 83, 87-88; Williams v Williams, 36 AD3d 693, 695; New York Community Bank v Snug Harbor Sq. Venture, 299 AD2d 329, 330). Here, the retainer agreements submitted by the defendant do not establish, as a matter of law, that the defendant's obligation was to advise the plaintiff solely with respect to her wrongful termination action against her employer. The one page of the disability carrier's policy along with the complaint from the action alleging wrongful termination fails to conclusively establish that the plaintiff would not otherwise have been entitled to receive benefits under the policy, had she filed a timely claim.

Further, "in reviewing a motion pursuant to CPLR 3211(a)(7) to dismiss a complaint for failure to state a cause of action, the facts as alleged in the complaint must be accepted as true, the plaintiff is accorded the benefit of every possible favorable inference, and the court's function is to determine only whether the facts as alleged fit within any cognizable legal theory" (Kupersmith [*2]v Winged Foot Golf Club, Inc., 38 AD3d 847, 848; see Leon v Martinez, 84 NY2d at 87-88; Board of Educ. of City School Dist. of City of New Rochelle v County of Westchester, 282 AD2d 561, 562). Here, the plaintiff has pleaded sufficient facts to fit within a theory of legal malpractice.

The action is not barred by the doctrine of judicial estoppel since the plaintiff's action predicated upon wrongful termination was settled and did not result in a judgment (see Kimco of New York, Inc. v Devon, 163 AD2d 573, 575). "
 

Full post as published by New York Attorney Malpractice Blog on May 29, 2009 (boomark / email).