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Legal Malpractice

: New York Attorney Malpractice Blog

Hindsight in Legal Malpractice Litigation

By (Andrew Lavoott Bluestone)

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Humans have fingers, and are willing to point with them. Looking back over events and apportioning blame is not particularly limited to legal malpractice questions, but seems to be very prevalent there. Here, in Sklover & Donath, LLC v Eber-Schmid ; 2010 NY Slip Op 02002
Decided on March 16, 2010 ; Appellate Division, First Department the justices borrow from an unidentified law review article to state that hindsight is "an unreliable test for determining the past existence of legal malpractice" (Darby & Darby v VSI Intl., 95 NY2d 308, 315 [2000] [law review source omitted]).

Attorneys represented clients in a federal criminal proceeding as well as a related civil proceeding. Relations broke down over legal fees, and eventually the attorneys moved to be relieved. A fee action with a legal malpractice counterclaim followed. The counterclaim fails for several different reasons.

"Defendants failed to allege a viable counterclaim for breach of contract, as they were unable to identify the terms of the agreement allegedly breached (767 Third Ave. LLC v Greble & Finger, LLP, 8 AD3d 75 [2004]). Nothing in the modified agreement prohibited plaintiff from requesting a lien on real property, withdrawing as counsel, or commencing an action based on unpaid legal fees.

Nor did defendants properly allege a counterclaim for legal malpractice. The steps plaintiff took in litigating these cases were among many reasonable options (see Rosner v Paley, 65 NY2d 736, 738 [1985]). The allegations that plaintiff's decisions were unreasonable are based on hindsight, As to breach of fiduciary duty, defendants' contention that plaintiff prolonged the litigation for purposes of "churning" the case to increase the legal fees is speculative and conclusory. Defendants failed to otherwise allege any facts showing that their attorney followed any inappropriate course of action. "

Full post as published by New York Attorney Malpractice Blog on March 24, 2010 (boomark / email).