The Legal Malpractice Blog, New York

Proximate Cause and Attorney Malpractice

2011-06-01T14:58:00.000-04:00

Proximate Cause and Attorney Malpractice

There is a legal concept in personal injury law called "proximate cause." The big question in holding someone liable for the injuries of another is: "Was the defendant’s action the proximate cause of the injury sustained by the plaintiff?" In other words, was it the defendant’s fault or not.

In analyzing that question, various States have created other legal concepts, such as contributory negligence, comparative negligence, and strict liability. These concepts help tailor the causation element to the facts of the case. For instance, were the actions of the plaintiff a contributing factor to the injury sustained by him - by his failure to wear a seat-belt, did the plaintiff cause his own injuries, even if the defendant’s car hit his car.

In Barnett v. Schwartz, the Appellate Division – Second Department had to grapple with an issue concerning causation. Specifically, in a legal malpractice case, must the plaintiff prove that the defendant-attorney’s negligence was the sole proximate cause of the damages sustained by him?

In the case, the defendants argued that the trial court erred when it charged the jury that the plaintiffs needed to prove only that the defendants’ negligence was a proximate cause (i.e., a "substantial" cause) of damages. The defendants claimed that the trial court should have instead charged the jury that the plaintiffs needed to prove that "but for" such negligence they would not have sustained damages. The defendants argued that the "less rigorous standard" of causation charged by the court warranted reversal and a new trial.

The elements to be proved in a legal malpractice action have been subjected to various formulations. In the opinion, the court noted:

Thus, while it is clear that a plaintiff-client must prove negligence (i.e., that the defendant-attorney failed to exercise that degree of care, skill, and diligence commonly possessed and exercised by members of the legal community), some cases hold that the negligence must be "the" proximate cause of damages (Britt v Legal Aid Soc., 95 NY2d 443, 446; see e.g. Kleeman vRheingold, 81 NY2d 270; Caruso, Caruso & Branda, P.C. v Hirsch, 41 AD3d 407; Cohen v Wallace & Minchenberg, 39 AD3d 691; Cummings v Donovan, 36 AD3d 648; Kotzian v McCarthy, 36 AD3d 863), while others hold that it must be "a" proximate cause of damages (Bauza v Livington,40 AD3d 791, 793; see e.g. Moran v McCarthy, Safrath &Carbone, P.C., 31 AD3d 725; Terio v Spodek, 25 AD3d 781; Pistilli v Gandin, 10 AD3d 353). There are also cases from this court requiring the damages to be a "direct result" of the negligence (Caruso, Caruso & Branda, P.C. v Hirsch, 41 AD3d 407, 409; Kotzian v McCarthy, 36 AD3d 863; Moran v McCarthy, Safrath &Carbone, P.C., 31 AD3d 725). In the main, the cases from the Court of Appeals, including the most recent, do not expressly require that the negligence be either "the" or "a" proximate cause of damages, but require proof that, "but for" the negligence of the defendant-attorney, the plaintiff-client would have prevailed in the underlying action (in a classic lawsuit-within-a-lawsuit scenario) or would not have incurred damages (in an action alleging negligent advice, etc.) (see e.g., Leder v Spiegel, 9 NY3d 836; Rudolf v Shayne, Dachs, Stanisci, Corker &Sauer, 8 NY3d 438; AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428; Davis v Klein, 88 NY2d 1008; Carmel v Lunney, 70 NY2d 169). The defendants here, while not expressly describing the difference between proximate and "but for" causation, argue that the latter requires a greater, more direct degree of causation. However, we find no substantive import to the variations in the formulations discussed above, and hold that a plaintiff-client in a legal malpractice action need prove only that the defendant-attorney’s negligence was a proximate cause of damages.

Neither party cited, and research did not reveal, any case from the Court of Appeals or any other court expressly holding that "but for" causation was synonymous with sole proximate cause, or that it requires a degree of causation in legal malpractice cases greater than proximate cause, i.e., greater than that which must be typically proved as against any other professional or lay defendant in a negligence action. Further, there was no case discussing or identifying any basis for singling out attorneys for special treatment on the issue of causation.

As mentioned in the decision, The Pattern Jury Instruction on legal malpractice, which focuses upon the lawsuit-within-a-lawsuit scenario, does not expressly use either the phrase "but for" or "proximate cause" in its formulation (NY Pattern Jury Instruction 2:152). However, the comments to the instruction, while noting the "but for" formulation, provide that a defendant-attorney’s negligence need only be "a" proximate cause of damages and refer the reader to the general Pattern Jury Instruction on proximate cause (NY PJI 2:152, p 872, 880; NY PJI 2:70). As stated: "Moreover, our reading of the case law does not reveal that a heightened standard for causation is actually being applied in legal malpractice cases. Rather, all results can be explained by application of general principles of proximate cause."

The Second Department decision in Barnett v. Schwartz gave an instructive lesson concerning proximate cause in a legal malpractice case:

For example, in the lawsuit-within-a-lawsuit scenario, the plaintiff-client must prove that but for the defendant-attorney’s negligence they would have prevailed in the underlying action. Stated otherwise, if the plaintiff-client cannot prove that it would have prevailed in the underlying action, the defendant-attorney’s negligence was not a proximate cause of any damages arising from the loss of the same. Further, there are several decisions from this court requiring the plaintiff-client to prove both that the defendant-attorney’s negligence was "a" proximate cause of damages, and that "but for" such negligence it would have prevailed in the underlying action or would not have incurred damages (see e.g. Moran v McCarthy, Safrath & Carbone, P.C., 31 AD3d 725; Terio v Spodek,25 AD3d 781). Clearly, these decisions do not provide for two different measures of causation in the same standard. Indeed, it would appear that the "but for" language, which grew out of the lawsuit-within-a-lawsuit scenario (see Carmel v Lunney, 70 NY2d 169; N. A. Kerson Co. v Shayne, Dachs, Weiss, Kolbrenner, Levy & Levine, 45 NY2d 730), is merely a recognition of the factual particularities of proving proximate cause and damages in such an action. When applied in a case involving negligent legal advice (i.e., a case where there is no underlying cause of action to lose), it would appear that the "but for" formulation is merely a recognition of the factual complexities that may attend proving proximate cause when the legal advice was merely one of a myriad of factors that contributed to the plaintiff-client’s ultimate decision or course of action (see e.g. AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428).

Finally, we note, a conclusion that the "but for" formulation of causation requires proof that the negligence of the defendant-attorney was the sole proximate cause of damages is contrary to the holding of the Court of Appeals that the contributory negligence of the plaintiff-client may be pleaded as an affirmative defense (see Arnav Indus. Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner, 96 NY2d 300; see also Boudreau v Ivanov, 154 AD2d 638).

In determining that the legal malpractice case should continue and not be dismissed, the Second Department simply stated:

"In sum, regardless of the formulation employed, a plaintiff in a legal malpractice action need prove only that the defendant-attorney’s negligence was a proximate cause of damages."

License Information

Proximate Cause and Attorney Malpractice by Richard A. Klass, Esq. is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 United States License. For permissions beyond the scope of this license, please contact Mr. Klass (email: RichKlass@CourtStreetLaw.com). Insert the words "reprint permission request" in the subject line of the email.

Publishing Guidelines

Permission is granted to publish this article electronically in free-only publications, like a website or ezine (print and non-free publications require permission) as long as the resource box is included without any modifications. All links must be active. A courtesy copy is requested on publication (email: RichKlass@CourtStreetLaw.com).

Article Title:
Proximate Cause and Attorney Malpractice

Article URL:
http://courtstreetlaw.com/articles/legal-malpractice-articles/proximate-cause-and-attorney-malpractice.html

Author Name:
Richard A. Klass, Esq.

Contact Email Address:
RichKlass@CourtStreetLaw.com

Author's Firm's Website:www.CourtStreetLaw.com

Word Count:1,251 words

[This resource box must be included in any publications.]

* * *

Resource Box

About the Author:
Richard A. Klass, Esq. maintains a law firm engaged in civil litigation at 16 Court Street, 29th Floor, Brooklyn Heights, New York. He may be reached by phone at (718) COURT-ST [(718) 268-7878)] or RichKlass@courtstreetlaw.com with any questions. Prior results do not guarantee a similar outcome.

Read the original article in context at:http://courtstreetlaw.com/articles/legal-malpractice-articles/proximate-cause-and-attorney-malpractice.html
Additional articles by Mr. Klass may be found at: http://courtstreetlaw.com/articles/index.html.
Back issues from Mr. Klass' quarterly newsletter, Law CURRENTS are available at http://courtstreetlaw.com/newsletters/index.html.
Articles from Law CURRENTS may be available for reprint. Please see individual articles for license information.

* * *

Contact me if you have questions.

Sincerely yours,
Richard A. Klass, Esq.
Your Court Street Lawyer
-----------
copyr. 2011 Richard A. Klass, Esq.
The firm's website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation at 16 Court Street, 29th Floor, Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-mail to richklass@courtstreetlaw.com with any questions.
Prior results do not guarantee a similar outcome.

Striking the Affirmative Defense of Statute of Limitations in a Legal Malpractice Action

2011-05-01T15:13:00.000-04:00

When a former client sues his attorney for legal malpractice, the defendant-attorney/law firm will almost invariably put forward, as part of its defense of the law suit, the Affirmative Defense of Statute of Limitations. In New York State, the period in which an attorney may be sued (whether for a tort [civil wrong] or breach of contract) is generally three (3) years from the date of malpractice. If the client does not sue the attorney/law firm within the applicable Statute of Limitations period, then the case is “time barred” and may be dismissed as having been filed too late.

When the defendant attorney alleges in his Answer to the law suit that the action is barred by the Statute of Limitations, it is essential to deal with the issue as soon as practicably possible. One effective way is to make a motion to the trial judge to “strike” (or dismiss) the Affirmative Defense from the Answer. Civil Practice Law and Rules [CPLR] Section 3211(b) provides that a party may move to strike an affirmative defense.

Affirmative Defense – Statute of Limitations:

In a recent case, the defendant law firm asserted the Affirmative Defense that the legal malpractice action was barred by the applicable statute of limitations. In response, Richard A. Klass, Your Court Street Lawyer, brought a motion to dismiss the Affirmative Defense. The motion requested that this affirmative defense be stricken, since it was alleged that the plaintiff-injured person brought the action within the applicable three-year statute of limitations period, as specified in CPLR 214(6).

CPLR 214(6) provides that “an action to recover damages for malpractice, other than medical, dental or podiatric malpractice, regardless of whether the underlying theory is based in contract or tort” must be commenced within 3 years.

The cause of action for malpractice accrues at the time of the act, error or omission. See, Julian v. Carrol, 270 AD2d 457 [2d Dept. 2000]; Goicoechea v. Law Offices of Stephen Kihl, 234 AD2d 507 [2d Dept. 1996]; Shumsky v. Eisenstein, 96 NY2d 164 [2001].

In the recent case, the allegation of legal malpractice against the defendant law firm was that there was a ‘blown’ statute of limitations because the law firm did not timely sue the potentially liable party. In that situation, the New York State Court of Appeals (New York’s highest court) has held that a cause of action for legal malpractice accrues against the attorney when the statute of limitations expires on the underlying action for which the attorney was retained. See, Shumsky v. Eisenstein, supra. In Burgess v. Long Island Railroad Authority, 79 NY2d 777 [1991], the Court of Appeals held:

A person has one year from the date a claim accrues to commence an action against a public authority such as LIRR (Public Authorities Law §1276(2). The complaint must contain an allegation that at least 30 days have elapsed since the authority was presented with a demand or claim and that the authority has neglected or refused to adjust or pay the claim. This “stay” of 30 days is not counted as part of the limitations period and the plaintiff therefore may serve a complaint at any time up to one year and 30 days after the claim has accrued.

In the case, the plaintiff’s incident was alleged to have occurred on June 4, 2003. According to Public Authorities Law §1276, an action would have to have been brought against the LIRR within one year and thirty days after the incident. The defendant law firm was alleged to have failed to timely do so and the time in which to do so passed on their ‘watch.’

The Continuous Representation Toll:

The accrual of the three-year statute of limitations is ‘tolled’ during the period of the lawyer’s continuous representation in the same matter out of which the malpractice arose under the theory that the client should not be expected to question the lawyer’s advice while he is still representing the client. See, Lamellen v. Kupplungbau GmbH v. Lerner, 166 AD2d 505 [2d Dept. 1990]; Shumsky v. Eisenstein, supra. Under the continuous representation doctrine, there must be clear indicia of an ongoing, continuous, developing, and dependent relationship between the client and the lawyer. See, Kanter v. Pieri, 11 AD3d 912 [4 Dept. 2004]; Lamellen v. Kupplungbau GmbH v. Lerner, supra; Clark v. Jacobsen, 202 AD2d 466 [2 Dept. 1994].

In the case, the defendant law firm was alleged to have continuously represented the injured plaintiff up until August 2007, as represented by the proceedings brought on his behalf and the correspondence between the parties. Accordingly, the Statute of Limitations in which to sue the defendant law firm for legal malpractice for having missed the opportunity to have sued the proper party for the incident that resulted in the client’s injury started ticking when the law firm no longer represented him.

License Information

Striking the Affirmative Defense of Statute of Limitations in a Legal Malpractice Action by Richard A. Klass, Esq. is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 United States License. For permissions beyond the scope of this license, please contact Mr. Klass (email: RichKlass@CourtStreetLaw.com). Insert the words "reprint permission request" in the subject line of the email.

Publishing Guidelines

Permission is granted to publish this article electronically in free-only publications, like a website or ezine (print and non-free publications require permission) as long as the resource box is included without any modifications. All links must be active. A courtesy copy is requested on publication (email: RichKlass@CourtStreetLaw.com).

Article Title:Striking the Affirmative Defense of Statute of Limitations in a Legal Malpractice Action

Article URL:http://courtstreetlaw.com/articles/legal-malpractice-articles/Affirmative_Defense-legal-malpractice.html

Author Name:Richard A. Klass, Esq.

Contact Email Address:RichKlass@CourtStreetLaw.com

Author's Firm's Website:www.CourtStreetLaw.com

Word Count:826 words

[This resource box must be included in any publications.]

* * *

Resource Box

About the Author:
Richard A. Klass, Esq. maintains a law firm engaged in civil litigation at 16 Court Street, 29th Floor, Brooklyn Heights, New York. He may be reached by phone at (718) COURT-ST [(718) 268-7878)] or RichKlass@courtstreetlaw.com with any questions. Prior results do not guarantee a similar outcome.

Read the original article in context at:
http://courtstreetlaw.com/articles/legal-malpractice-articles/Affirmative_Defense-legal-malpractice.html
Additional articles by Mr. Klass may be found at: http://courtstreetlaw.com/articles/index.html.
Back issues from Mr. Klass' quarterly newsletter, Law CURRENTS are available at http://courtstreetlaw.com/newsletters/index.html.
Articles from Law CURRENTS may be available for reprint. Please see individual articles for license information.

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The Harsh Rule of the Statute of Limitations in Legal Malpractice Cases

2011-04-01T15:09:00.000-04:00

The term “statute of limitations” refers to the period of time in which a plaintiff may bring a lawsuit against a defendant for a claim. Different types of cases are governed by different statute of limitations period (for instance, six years for contract actions in New York, three years for tort actions in New York). The effect of the statute of limitations is that a plaintiff bringing a lawsuit after that period of time has expired is barred from bringing it, and the lawsuit will be dismissed as untimely.

In New York, the statute of limitations for legal malpractice cases is three years from the date of malpractice. This means that a plaintiff-client bringing a lawsuit for legal malpractice against a defendant-attorney must file the lawsuit within three years of the date of legal malpractice by the defendant-attorney; if not, then the lawsuit may be dismissed as untimely. There are some “tolls” of the statute of limitations, which may extend the period of time in which a lawsuit may be filed (e.g. continued representation of the client by the attorney post-malpractice).

In a case decided by New York’s Appellate Division, Second Department, Frost Line Refrigeration, Inc. v. Gastwirth, Mirsky & Stein LLP, 806 NYS2d 436 (2006), the court held that the three-year statute of limitations period for the legal malpractice case started running from the date that the plaintiff-client signed a Consent to Change Attorney form with the defendant-client. By signing that form (which indicates that a client no longer wants the attorney to act as its counsel), the attorney-client relationship terminated and the clock began ticking on the potential legal malpractice claim. As the lawsuit was filed after the three-year period, the plaintiff-client was time-barred from commencing the legal malpractice case and it was dismissed.

Therefore, it is very important to be vigilant in pursuing all potential legal remedies as soon as possible in order to preserve any rights, including the right to file a legal malpractice case; otherwise, it may be too late to file a legal malpractice case.

License Information

The Harsh Rule of the Statute of Limitations in Legal Malpractice Cases by Richard A. Klass, Esq. is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 United States License. For permissions beyond the scope of this license, please contact Mr. Klass (email: RichKlass@CourtStreetLaw.com). Insert the words "reprint permission request" in the subject line of the email.

Publishing Guidelines

Permission is granted to publish this article electronically in free-only publications, like a website or ezine (print and non-free publications require permission) as long as the resource box is included without any modifications. All links must be active. A courtesy copy is requested on publication (email: RichKlass@CourtStreetLaw.com).

Article Title:The Harsh Rule of the Statute of Limitations in Legal Malpractice Cases

Article URL:http://courtstreetlaw.com/articles/legal-malpractice-articles/statute-of-limitations-legal-malpractice.html

Author Name:Richard A. Klass, Esq.

Contact Email Address:RichKlass@CourtStreetLaw.com

Author's Firm's Website:www.CourtStreetLaw.com

Word Count:341 words

[This resource box must be included in any publications.]

* * *

Resource Box

About the Author:
Richard A. Klass, Esq. maintains a law firm engaged in civil litigation at 16 Court Street, 29th Floor, Brooklyn Heights, New York. He may be reached by phone at (718) COURT-ST [(718) 268-7878)] or RichKlass@courtstreetlaw.com with any questions. Prior results do not guarantee a similar outcome.

Read the original article in context at:
http://courtstreetlaw.com/articles/legal-malpractice-articles/statute-of-limitations-legal-malpractice.html
Additional articles by Mr. Klass may be found at: http://courtstreetlaw.com/articles/index.html.
Back issues from Mr. Klass' quarterly newsletter, Law CURRENTS are available at http://courtstreetlaw.com/newsletters/index.html.

Articles from Law CURRENTS may be available for reprint. Please see individual articles for license information.

* * *

The Basic Elements of a Legal Malpractice Case

2011-03-01T15:03:00.000-05:00

In every type of lawsuit, a plaintiff (commonly known as the person bringing the case) must make certain allegations of fact against a defendant (the party being sued) and tie those allegations of fact to violations of specific laws or rules. Those violations could be based upon a particular statute or rule or section of law, or common law generally (some times the two overlap as well). If the plaintiff cannot prove that the defendant committed an “actionable” wrong, then the lawsuit will be dismissed by the court – either because there is a failure of proof or because the allegations of proof do not amount to a violation of law as interpreted by the court.

When a plaintiff brings an action against a lawyer for legal malpractice, the plaintiff must prove several basic “elements” of the cause of action for legal malpractice in order to prevail. Generally, the first requirement is that the party suing for legal malpractice show that he was the former client of the defendant, who is a lawyer. (It is important to point out that there are some cases which expand the definition of a client or extend liability to non-clients of the lawyer for purposes of legal malpractice claims).

A plaintiff in a legal malpractice case (the client of an attorney) must prove that:

a) the defendant-attorney failed to exercise the care, skill, and diligence commonly possessed and exercised by a member of the legal profession;

b) the defendant-attorney’s negligence was a proximate cause of the loss sustained by the plaintiff-client;

c) the plaintiff-client incurred actual damages as a result of the defendant-attorney’s actions or inaction; and

d) “but for” the defendant-attorney’s negligence, the plaintiff-client would have prevailed in the underlying action or would not have sustained any damages.

See, Opinion of the New York State Court of Appeals in Arnav Industries Inc. v. Brown, Raysman, Millstein, Felder & Steiner, 96 NY2d 300.

For a defendant-attorney in a legal malpractice case to succeed on a motion for summary judgment seeking to dismiss the cause of action for legal malpractice, evidence must be presented to the court on the motion which establishes that the plaintiff-client is unable to prove at least one of the essential elements of the legal malpractice case.

See, Opinion of the Appellate Division in Crawford v. McBride, 303 AD2d 442.

License Information

The Basic Elements of a Legal Malpractice Case by Richard A. Klass, Esq. is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 United States License. For permissions beyond the scope of this license, please contact Mr. Klass (email: RichKlass@CourtStreetLaw.com). Insert the words "reprint permission request" in the subject line of the email.

Publishing Guidelines

Permission is granted to publish this article electronically in free-only publications, like a website or ezine (print and non-free publications require permission) as long as the resource box is included without any modifications. All links must be active. A courtesy copy is requested on publication (email: RichKlass@CourtStreetLaw.com).

Article Title:The Basic Elements of a Legal Malpractice Case

Article URL:http://courtstreetlaw.com/articles/legal-malpractice-articles/basic-elements-legal-malpractice-case.html

Author Name:Richard A. Klass, Esq.

Contact Email Address:RichKlass@CourtStreetLaw.com

Author's Firm's Website:www.CourtStreetLaw.com

Word Count:388 words

[This resource box must be included in any publications.]

* * *

Resource Box

About the Author:Richard A. Klass, Esq. maintains a law firm engaged in civil litigation at 16 Court Street, 29th Floor, Brooklyn Heights, New York. He may be reached by phone at (718) COURT-ST [(718) 268-7878)] or RichKlass@courtstreetlaw.com with any questions. Prior results do not guarantee a similar outcome.

Read the original article in context at:http://courtstreetlaw.com/articles/legal-malpractice-articles/basic-elements-legal-malpractice-case.html
Additional articles by Mr. Klass may be found at: http://courtstreetlaw.com/articles/index.html.
Back issues from Mr. Klass' quarterly newsletter, Law CURRENTS are available at http://courtstreetlaw.com/newsletters/index.html.

Articles from Law CURRENTS may be available for reprint. Please see individual articles for license information.

The Wrong Side of the Tracks Costs Law Firm $800,000

2011-02-01T15:00:00.006-05:00

The Long Island Railroad (LIRR) leased one of its old rail yards in Queens to a recycling company. One of the recycling company’s employees was working the late shift on a rainy evening in 2003. That rainy night, he was assigned the task of welding on a portion of the metal fence surrounding the yard with an acetylene torch. He got up on a ladder, climbed up several rungs, and started to weld. At that point, the injured worker got a shock from the welding equipment. The ladder then shifted in the mud and he fell to the ground, suffering severe injuries. Since that incident, he was unable to work, having become disabled, and having had several surgeries to his back and knee.

The injured worker hired a law firm to bring a personal injury claim against the owner of the yard under New York’s Labor Law Section 240 known as the “Scaffolding Law.” That law firm brought a petition to file notices of claim against the MTA (Metropolitan Transportation Authority) and the LIRR. The Supreme Court Justice dismissed the petition, indicating in his decision that, as to the MTA, the reason for the late notice of claim was not meritorious and, as to the LIRR, no notice of claim was needed and that the law firm merely needed to timely commence a lawsuit under New York’s Public Authority Law. Needless to say, the time within which the injured worker needed to commence the lawsuit against the LIRR had already passed by the time of that decision. The injured worker retained Richard A. Klass, Your Court Street Lawyer to sue the personal injury law firm for legal malpractice.

Time-barred by the Statute of Limitations:

The concept of a “Statute of Limitations” is that people are afforded a certain amount of time to take action concerning a legal claim they may have; if that period of time passes without taking action, then the ability to pursue the legal claim has been waived. Most people are familiar, for instance, that in New York State the statute of limitations period within which to file most personal injury cases is three years from the date of accident. In this particular case, though, the Statute of Limitations period within which to sue the potentially liable parties was shorter (to a period of one year and thirty days) because the personal injury claim was against the LIRR, a governmental authority under a special statute.

Once the judge had dismissed the injured worker’s lawsuit, thus leaving him without recourse to recover monetary damages for his injuries, the law firm was exposed to the legal malpractice claim brought against it because it was alleged to have “blown” the statute of limitations by neglecting to timely file the lawsuit against the LIRR.

In legal malpractice cases, the statute of limitations in which to sue an attorney is three years from the date of malpractice under New York’s CPLR Section 214(6). Since many times in litigation, attorneys who have committed malpractice continue representing their clients for months or years afterward, there is also a concept of “continuous representation.” This means that the statute of limitations “clock” does not start to tick until the attorney has stopped representing the client in the matter.

Proving the underlying case under Labor Law Section 240:

A legal malpractice case is a very difficult type of litigation for one particular reason: Assuming that the lawyer ‘screwed up’ as much as possible, doing everything as wrong as could be done or failing to do any of the right things, it still might not matter — the ultimate question for purposes of liability for legal malpractice will be whether there was any merit to the underlying case that the lawyer was hired to handle. Rephrased: Would the client have won “but for” his lawyer?!

New York’s Scaffolding Law provides that owners of real estate, such as the LIRR, are “strictly liable” for injuries suffered by workers who fall from a ladder or scaffold under almost all circumstances, with limited exceptions, such as if there was a lack of adequate safety devices. This basically means that the landowner is responsible to pay for all of the worker’s damages for his injuries, including medical bills, lost wages, and pain and suffering. An exception to holding the landowner strictly liable under the Scaffolding Law is where the injured worker is found to have been the “sole proximate cause” of his injuries. In this case, the law firm being sued for legal malpractice argued that, in the event the LIRR had been sued, the injured worker would not have prevailed anyway because this exception to the Scaffolding Law would have applied because he knew not to weld in the rain. In response, the injured worker claimed that his employer at the yard instructed him to weld in the rain and that he was not going to be insubordinate.

Separate and apart from the Scaffolding Law issue, the law firm argued that there was no proof of exactly where the fall occurred to establish that it happened on the LIRR’s property. In response, a surveyor was retained to survey the area surrounding the old rail (now recycling) yard, and Deeds dating back to the 1800s were obtained. These documents were produced to establish the legal ownership of the location where the fall took place. This was a necessary element of the case in order to prove that the LIRR would have been liable for injuries to workers on its property under the Scaffolding Law.

The legal malpractice case came up for a pre-trial conference. Attorneys Richard A. Klass and Stefano A. Filippazzo appeared at the conference on behalf of the injured worker. The law firm being sued for legal malpractice finally settled with the injured worker for $800,000 to settle the action and pay for his injuries and extensive medical lien.

Contact me if you have questions.

Sincerely yours,
Richard A. Klass, Esq.
Your Court Street Lawyer

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Art credits: page one, Hjørring - Hirtshals Line in Northern Denmark. Photograph by Tomasz Sienicki, 2003.

copyr. 2011 Richard A. Klass, Esq.
The firm's website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation at 16 Court Street, 29th Floor, Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-mail to richklass@courtstreetlaw.com with any questions.
Prior results do not guarantee a similar outcome.

How the “Continuous Representation” Doctrine Helps Injured Clients

2011-01-14T15:19:00.001-05:00

In legal matters, there is an attorney-client relationship from the moment that the attorney is consulted by the client until the matter concludes. If, during the term of this relationship, the attorney was negligent or commits malpractice in the matter, the client may have a claim against the attorney for legal malpractice. Sometimes, the malpractice is committed at the early stages of litigation and not at the conclusion; for instance, an action may have started in Year 1, malpractice was committed in Year 2, and the action concludes in Year 6. The question then becomes whether or not the client may pursue a claim against the attorney for the malpractice committed in Year 2, when the statute of limitations period may have already passed.

CPLR 214(6) provides that “an action to recover damages for malpractice, other than medical, dental or podiatric malpractice, regardless of whether the underlying theory is based in contract or tort” must be commenced within 3 years.

The cause of action for malpractice accrues at the time of the act, error or omission. See, Julian v. Carrol, 270 AD2d 457 [2d Dept. 2000]; Goicoechea v. Law Offices of Stephen Kihl, 234 AD2d 507 [2d Dept. 1996]; Shumsky v. Eisenstein, 96 NY2d 164 [2001].

In order to protect clients The Court of Appeals has held that a cause of action for legal malpractice accrues against the attorney when the statute of limitations expires on the underlying action for which the attorney was retained. See, Shumsky v. Eisenstein, supra.

The Continuous Representation Toll

The accrual of the three-year statute of limitations is tolled during the period of the lawyer’s continuous representation in the same matter out of which the malpractice arose under the theory that the client should not be expected to question the lawyer’s advice while he is still representing the client. See, Lamellen v. Kupplungbau GmbH v. Lerner, 166 AD2d 505 [2d Dept. 1990]; Shumsky v. Eisenstein, supra. Under the continuous representation doctrine, there must be clear indicia of an ongoing, continuous, developing, and dependent relationship between the client and the lawyer. See, Kanter v. Pieri, 11 AD3d 912 [4 Dept. 2004]; Lamellen v. Kupplungbau GmbH v. Lerner, supra; Clark v. Jacobsen, 202 AD2d 466 [2 Dept. 1994].

Contact me if you have questions.

Sincerely yours,
Richard A. Klass, Esq.
Your Court Street Lawyer

Art credits: [art critic] Diego Martelli in Castiglioncello by Giovanni Fattori, 1865-1867.

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copyr. 2008 and 2011 Richard A. Klass, Esq.
The firm's website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation at 16 Court Street, 29th Floor, Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-mail to richklass@courtstreetlaw.com with any questions.
Prior results do not guarantee a similar outcome.

Did your attorney commit legal malpractice?

2010-12-14T19:56:00.003-05:00

In recent years, the number of lawyers across the country has grown tremendously. As the sophistication of practice in various specialty areas has become more prevalent, the opportunity for an attorney to commit malpractice has increased.

The two most essential elements of a legal malpractice case are:
a) The client can prove that the lawyer committed malpractice, negligence, breach of contract, or breach of fiduciary duty; and
b) That “but for” the malpractice, negligence or breach of contract/duty of the lawyer, the client would have prevailed in the underlying litigation or transaction.

Basically, the client must show that the lawyer caused the client’s damages.

Types of legal malpractice cases include:

Negligence
Similar to a medical malpractice case, the attorney’s conduct is judged as to whether it met the “standard of care” expected of other attorneys in the area, or whether that conduct deviated from the norm.

Breach of contract
When an attorney is retained by a client, there are implicit and explicit agreements as to the scope of the work to be performed, the manner in which it is to be done, and obligations of the parties. Generally, there will be a retainer agreement setting forth all of the obligations of the parties. Breach of the contract for legal representation may be proved to have occurred.

Fraud
Fraud involves the intentional misrepresentation of material facts which adversely affects the client.

Theft
Conversion of moneys or property of a client may take a few forms. For instance, a lawyer may overbill for services not performed, or retain funds from a settlement that do not belong to the attorney.

Breach of fiduciary duty
Sometimes, the attorney will be acting in a fiduciary capacity, such as by power-of-attorney, and has certain responsibilities of ensuring that the attorney puts the client’s interests ahead of all others.

Contact me if you have questions.

Sincerely yours,

Richard A. Klass, Esq.

Your Court Street Lawyer

http://courtstreetlaw.com/