Legal Malpractice

Reject a Client and Avoid Legal Malpractice

By (Andrew Lavoott Bluestone)

This case sheds a light on how personal injury firms get, evaluate and reject clients.  Likely unknown to the public, PI and Med Mal firms often "take" a case by having a Blumberg retainer signed which might have the language "for investigation" or "for medical records" or some other modifier.  The attorneys then spend some time getting records, reviewing accident reports, and then, often just days prior to the statute of limitations running whether they will, in fact, take the case.  In the Med Mal world, whether the firm obtains an expert will be the deciding factor.  An expert is "required" for the Certificate of Merit. 

Here, in Depouli v Barasch McGarry Salzman & Penson;;2011 NY Slip Op 30163(U); January 24, 2011; Supreme Court, New York County; Docket Number: 150123/10; Judge: Eileen A. Rakower the attorneys recruited clients through a Bar Association "Information" Session, signed plaintiff up, waited until the  88th day or so, and then sent a rejection letter.  A notice of claim was due several days later.

"Plaintiff, along with other potential plaintiffs, met with Michael Barasch from BMS&P, and was  informed that BMS&P was prepared to represent him. By letter, dated June 10, 2008, sent via Federal Express, BMS&P informed plaintiff that: after careful review and analysis of the facts and circumstances surrounding the March 15,2008 crane collapse, we have decided not to pursue a claim against the City of New York. We certainly welcome the opportunity to represent your interests against the construction companies that operated the crane, as well as other responsible parties 

 The letter concludes with the following:
AGAIN, PLEASE UNDERSTAND THAT WE WILL NOT BE
FILING A NOTICE OF CLAIM AGAINST THE CITY OF NEW
YORK FOR YOU IN THIS MATTER. OTHER ATTORNEYS
MAY HAVE A DIFFERENT OPINION AND WE ENCOURAGE
YOU TO GET A SECOND OPINION IF YOU ARE DESIROUS
OF PROCEEDING WITH A CLAIM AGAINST THE CITY.
PLEASE NOTE THAT YOU MUST FILE A NOTICE OF CLAIM
ON OR BEFORE JUNE 13,2008. IF YOU FAIL TO DO SO, YOU
WILL BE JEOPARDIZING YOUR RIGHTS AGAINST THE
CITY. FOR YOUR CONVENIENCE, WE ARE ENCLOSING A
BLANK NOTICE OF CLAIM WHICH YOU CAN COMPLETE
AND FILE ON YOUR OWN. PLEASE DO SO NO LATER THAN
JUNE 13, 2008. YOU CAN FILE IT EITHER IN PERSON
(WHICH WE RECOMMEND) OR BY MAILING IT BY THIS
FRIDAY, JUNE 13TH, CERTIFIED MAIL RETURN Receipt
REQUEST[sic] TO EITHER:
The New York City Comptroller OR Michael Cardozzo, Esq., Corporation
1 Centre Street, Room 629
New York, NY 10007
Counsel
100 Church Street
New York, NY 10007

Appended to the letter is a notice of claim form wherein the following sections have been filled in by BMS&P: Section (2) 'The nature of the claim,' Section (3) 'The time, when, the place where, and ~e manner in which the claim arose,' and Section (4) 'The items of damage or injuries claimed . . -' Left blank is Section (1) 'The name and post-office address of each claimant and of claimant's attorney,' and there is a blank space provided in Section 4 for plaintiff to fill in his name. Also
included with the letter is a Verification Form, that requires a signature and notarization.
 

On June 28, 2008, plaintiff signed a retainer agreement with BMS&P. In a letter, dated July 25,2008, BMS&P requested that plaintiff forward any receipts, paid bills, and the names and addresses of any doctors that he saw after the accident. By letter, dated November 14, 2008, BMS&P informed plaintiff that, after 'careful consideration,' it would not be representing him at all.

"As to the first allegation, BMS&P's choice to not pursue claims against the City, but rather to  recover solely from the construction companies, does not support a claim for malpractice. 'Selection of one among several reasonable courses of action does not constitute malpractice.' (Rosner v. Paley, 65 NY2d 736,73 8[ 1985]).'Neither an error in judgment, nor in choosing a reasonable course of action constitutes malpractice.' (Hand v. Silberman, 15 AD3d 167[ 1 st Dept. 2005)

Further, the June 10, 2008 letter conclusively establishes a defense to the malpractice claim. BMS&P explicitly states several times that a notice of claim must be filed by June 13, 2008. BMS&P not only appended a notice of claim and a verification form to the letter, but it also filled out the notice of claim for plaintiff,  save for fie blank spaces left for plaintiffs name, his counsel's name, and their respective addresses. Additionally, BMS&P lists the addresses that plaintiff may send
the notice to, as well as informing plaintiff of the form of mailing required. Also, BMS&P  recommends plaintiff drop off the notice of claim in person. Plaintiff does not claim he received this letter after June 13,2008.

Full post as published by New York Attorney Malpractice Blog on February 04, 2011 (boomark / email).