Legal Malpractice

Going Fishing for Legal Malpractice

By (Andrew Lavoott Bluestone)

How does one prove legal malpractice, and what documents are necessary to support a successful legal malpractice case?  A colliery to that question is how do you get those documents, and when is a request too broad, and when does a demand go to far?  An illustration of a request which went too far is found in Aaron v Pattison, Sampson, Ginsberg & Griffin, P.C. ;2010 NY Slip Op 00342 ;Decided on January 14, 2010 ;Appellate Division, Third Department .
 

Aaron asked for: "documents showing Katzman's time entries and billings related to other client matters; documents showing Katzman's employment contracts, partnership agreements and income; evidence of loans to Katzman by PSGG; evidence of any malpractice suits against Katzman; claims against Katzman made to the Committee on Professional Standards; documents showing Katzman's absences from work, including vacation, personal and sick time; and documents pertaining to Katzman's reviews, disciplinary actions, internal grievances, demotions and promotions. "

Instead of getting such documents, he ended up paying attorney fees to the other side.  "As Aaron has failed to demonstrate that these materials are in any way material and necessary to proving a claim of legal malpractice (see AmBase Corp. v Davis Polk & Wardwell, [*3]8 NY3d 428, 434 [2007]) or to defending against PSGG's claims for counsel fees, the motion to compel must be denied (see CPLR 3101 [a]). Furthermore, under the same rationale, we find that Supreme Court did not abuse its discretion in granting the protective order (see CPLR 3103 [a]). Nor do we find an abuse of discretion in the award of counsel fees and costs on the motion (see 22 NYCRR 130-1.1 [a]). As set forth in the court's amended order, Aaron's motion to compel the production of the patently immaterial and unnecessary information detailed above was nothing more than a "fishing expedition" made for the "illegitimate purpose" of "uncovering facts supporting insufficient, conclusory allegations."

Full post as published by New York Attorney Malpractice Blog on January 18, 2010 (boomark / email).