Legal Malpractice

Guardians, Attorneys and Legal Malpractice

By (Andrew Lavoott Bluestone)

Guardians, Referees and other court appointees have a qualified immunity to suit.  At a bare minimum, permission from the court is required before bringing suit.  Here in Cangro v. Solomon Justice Edmead of Supreme Court, New York County sets forth the rules in three areas:  suing guardians, privity and an eventual requirement that permission be sought before suing either of these attorneys again.

Phyllis C. Solomon, Esq. was retained as attorney for  guardian to plaintiff in a 2001 matrimonial action.  She was tasked with the question of whether the proposed Stipulation of Settlement between plaintiff and her husband appeared to be fair to plaintiff.  Her answer was yes.

Plaintiff then sued Solomon on a number of theories, all in the nature of fraud and misrepresentation.  That law suit was dismissed, on the basis that no permission to sue was obtained before commencing an action against the guardian and its appointees,  and on appeal, plaintiff's appendix was struck.

Plaintiff then sued Solomon and her attorney in that proceeding.  The attorney, Ms. Shepps, was sued in her individual capacity, and the law firm was not named.

Justice Edmead determined that there was no privity between Solomon and Plaintiff, that the action was time barred, and that litigation against plaintiff's guardian or the guardian's agents cannot proceed without court permission. pursuant to section 1(H) of Part 36 of the Rules of the Chief Judge.

All of this ended with an order that plaintiff may not file any future actions against defendants or the respective law firms without prior permission of the administrative judge

Full post as published by New York Attorney Malpractice Blog on August 10, 2010 (boomark / email).