Legal Malpractice

Legal Malpractice and Fraud: The Relationship

By (Andrew Lavoott Bluestone)

Fraud is often alleged in legal malpractice cases, for one of several reasons.  One common reason is for a longer statute of limitations, 6 years rather than 3.  For as long as there has been a different statute of limitations in fraud and tort, this tension has existed.  After the NY legislature enacted CPLR 214(6) in reaction to a Court of Appeals decision in Santulli v. Englert, 78 NY2d 700 (1992), the tension escalated.  CPLR 214(6) determined that there was a 3 year statute whether the theory of liability is described in tort or fraud, so long as it is for professional work done by non-medical professionals.

A second reason is that the behavior feels more like fraud than malpractice, and the temptation is to plead and describe it as a misrepresentation type of wrong rather than a departure type of wrong.  However, the fraud must be more than a mere variant of the malpractice, and it must be more than the hiding of malpractice.

Here, in Reichenbaum v Cilmi ;2009 NY Slip Op 05954 ;Decided on July 21, 2009 ;Appellate Division, Second Department we see one description of the issue:
 

"The factual allegations in support of the cause of action to recover damages for fraud fail to meet the heightened pleading requirement of CPLR 3016(b) (see Kline v Taukpoint Realty Corp., 302 AD2d 433) and, in any event, the "mere failure to disclose malpractice does not give rise to a cause of action alleging fraud or deceit separate from the underlying malpractice cause of action" (Ferdinand v Crecca & Blair, 5 AD3d 538, 539). "
 

Full post as published by New York Attorney Malpractice Blog on July 28, 2009 (boomark / email).