Legal Malpractice

A Trend Gathers Steam in Legal Malpractice

By (Andrew Lavoott Bluestone)

Change in the law is sometimes revolutionary, and more often incremental.  A stunning example of incremental change is a trend in legal malpractice arising from matrimonial actions.  Often, if not universal, matrimonial actions are settled in open court stipulations, set on the record. For some historical reason, in matrimonial "allocutions" as well as in criminal plea allocutions, the Court asks the client whether client "is satisfied with the services of the attorney."  There is no apparent reasons or utility for this question.  It, however, serves to insulate the attorney from potential legal malpractice liability.

The Second Department has issued a ruling in this area, and now the First Department follows. In Weissman v Kessler , 2010 NY Slip Op 08009 ,Decided on November 9, 2010
Appellate Division, First Department the court decided that plaintiff could not successfully sue her matrimonial attorney.    "Moreover, as to all defendants, the evidence establishes that when entering into the settlement of the divorce action, plaintiff acknowledged in open court that she was satisfied with counsels' representation, and that she entered into the settlement agreement with the knowledge that her husband's real estate partnership investments had not yet been valued "(see Katebi v Fink, 51 AD3d 424 [2008])."
 

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