Legal Malpractice

Breach of Contract, Legal Malpractice and Prisoners

By (Andrew Lavoott Bluestone)

Prisoners are frequent consumers of legal services, yet lack many of the abilities to enforce, cajole, or otherwise make sure post-trial, post-plea or appellate work is performed, and performed on time.  Many are the complaints that attorneys were paid, and the work was not done for years, if done at all.  Compounding the problem for the prisoner-plaintiffs is the principal that a criminal defendants may not sue their criminal defense attorneys for legal malpractice.

In Reidy v Martin 2010 NY Slip Op 07734 ;Decided on October 26, 2010 ;Appellate Division, Second Department  we see one successful plaintiff who has sued his attorney for failing to do post-plea work.  Note that the defendants is pro-se.
 

"Contrary to the Supreme Court's conclusion, the plaintiff stated a cause of action to recover damages for breach of contract against his former attorney, Richard B. Herman, and it was not duplicative of the legal malpractice cause of action, which the Supreme Court dismissed for failure to state a cause of action. The plaintiff alleged that he paid Herman the sum of $65,000 to make motions to vacate pleas he previously entered in state and federal court, and that Herman failed to do so. A cause of action to recover damages for breach of contract may be maintained against an attorney where there is a promise to perform and no subsequent performance, and such is not duplicative of a legal malpractice cause of action (see Ruffolo v Garbarini & Scher, 239 AD2d 8, 9-10; Kaplan v Sachs, 224 AD2d 666, 667; Saveca v Reilly, 111 AD2d 493, 494-495; see also Vogel v Lyman, 246 AD2d 422, 423; see generally Colucci v O'Brien, 204 AD2d 257; cf. Ferdinand v Crecca & Blair, 5 AD3d 538, 539). Accordingly, the Supreme Court should have denied that branch of Herman's motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging breach of contract insofar as asserted against him."
 

Full post as published by New York Attorney Malpractice Blog on November 02, 2010 (boomark / email).