Legal Malpractice

Is This Another Version of "Settlement Satisfaction" in Legal Malpractice?

By (Andrew Lavoott Bluestone)

Boone v Bender ;2010 NY Slip Op 05497 ;Decided on June 22, 2010 ;Appellate Division, Second Department is a matrimonial legal malpractice case.  The Appellate Division decision does not shed much light on the allegations in the complaint. 
 

Often, matrimonial legal malpractice cases rest on failures in investigation of the other spouses' finances, in failures to seek pendente lite relief, in the failure to obtain maintenance, and in one variety of capitulation concerning equitable distribution.  We cannot really tell how this case proceeded.

Notable, however, is the Second Department's reliance on plaintiff's statement of satisfaction with her attorney at the settlement.  This is a newly emerging trend in legal malpractice.  In the settlement of some types of cases, matrimonial especially, the court asks whether the client was satisfied with its attorney's work.  The client is in a bind, as the attorney usually advises the client to say "yes."  Clients universally believe that if they don't answer, or say "no" then there will be no settlement.  This is a trap.

"The open-court stipulation of settlement established that the plaintiff was satisfied with the defendants' representation of her, that she had discussed the terms of the settlement with the defendants, that she understood that she would have the right to a trial if she did not wish to enter into the stipulation, that she had not been threatened or forced into entering into the stipulation, that she was entering into the stipulation voluntarily and of her own free will, that she had not taken any medications that would hamper her ability to understand the court proceedings, and that she had no additional questions for the defendants. "The fact that the plaintiff subsequently was unhappy with the settlement obtained by the defendant does not rise to the level of legal malpractice" (Holschauer v Fisher, 5 AD3d 553, 554). "

Full post as published by New York Attorney Malpractice Blog on July 01, 2010 (boomark / email).