Legal Malpractice

Legal Malpractice and Collateral Estoppel

By (Andrew Lavoott Bluestone)

In this Court of Appeals Decision Judge Smith goes as far back as Judge Cardozo to discuss the basics in this legal malpractice case.  As a digression, Justice Benjamin Cardozo, who served both on the New York Court of Appeals and the US Supreme Court was fascinating.  "Born in New York City to Albert and Rebecca Nathan Cardozo, Benjamin was a twin, born with his sister Emily. Cardozo's ancestors were Portuguese Jews who immigrated to the colonies in the 1740s and 1750s from Portugal[1] via the Netherlands and England. The surname Cardozo (Cardoso) is of Portuguese origin. He was a cousin of the Poet Emma Lazarus.

Albert Cardozo was himself a judge on the Supreme Court of New York (the state's general trial court) until he was implicated in a judicial corruption scandal, sparked by the Erie Railway takeover wars, in 1868. The scandal led to the creation of the Association of the Bar of the City of New York and Albert's resignation from the bench. After leaving the court, he practiced law until his death in 1885.

Back to this case, Tydings v. Greenfield, Stein & Senior, LLP, the issue was this.  Plaintiff  was  a trustee to an estate, and gave up the position to a successor trustee.  More than 6 years later she was asked for an accounting.  She was then successfully sued for damages arising from the trusteeship.  In the suit, she raised  the defense of statute of limitations,  It was denied on two grounds.  Trustee appealed.

The AD ruled on only one ground.  Plaintiff then sued her law firm, and they successfully moved to dismiss.  Question:  is plaintiff collaterally estopped from raising the second ground in suing her attorney?  Answer, in this case, no.

Full post as published by New York Attorney Malpractice Blog on October 20, 2008 (boomark / email).