NY: No Liability for Predecessor Counsel
Katz v. Herzfeld & Rubin, P.C., 853 N.Y.S.2d 104 (2 Dept. 2008)
NY Underlying Personal Injury Action
Student Contributor: Jason Klein
Facts: Plaintiffs retained Defendant attorneys as counsel for a personal injury action which was eventually settled. Subsequently, Plaintiffs commenced an action for legal malpractice alleging that Defendants refused to pursue a claim for loss of income, and as a result, Plaintiffs were forced to settle their personal injury action for an amount far below what they could have recovered. Defendants filed a motion to dismiss arguing that because Plaintiffs dismissed Defendants and hired new counsel five months prior to settling, the Defendants’ actions did not proximately cause the alleged damages. The trial court granted the Defendants’ motion to dismiss and Plaintiffs appealed
Issue: Did the trial court properly grant Defendants’ Motion to Dismiss in light of Plaintiff’s decision to terminate their representation five months in advance of the settlement of which they now complained?
Ruling: Yes. Successor counsel had been retained in a timely fashion and had every opportunity to protect the Plaintiff’s rights in advance of the time of their decision to enter into a settlement.
Lesson: Plaintiffs had sufficient time in which to pursue its claims with successor counsel, and therefore, could not establish that any alleged damages resulting from their decision to settle were proximately caused by the acts or omissions of their former counsel.
I agree with this holding. A Plaintiff such as this one who does not recover what they expect to can't just always blame their former attorneys. Turning a situation like this into per se negligence would result in an abundance of legal malpractice suits. i believe the court handled this situation in the right way, ensuring that the attorneys withdrawing (or being fired, it didnt say) still upheld their duty of professional responsibility. As long as attorneys take proper precautions/actions when leaving a client before their case is over, then the result of the case, especially one from which the client had adequate time to obtain subsequent counsel, there is no basis for liability.
I agree with this ruling. 5 months is more than sufficient, for the plaintiffs to pursue a claim with successor counsel when there are no statute of limitations problems. Given the length of time they were represented by the new counsel before the settlement, if there was any proximately caused damage from the failure to pursue a claim for loss income, it was the result of the subsequent counsel's negligence.
This ruling makes sense to me because it would be imprudent to allow the plaintiffs to sue a lawyer who did not cause harm to the plaintiff. I wonder why the plaintiffs in this case didnt sue the lawyers whom they subsequently hired?
Like my peers before me, I agree with this ruling. If the Defendants were not the Plaintiff's counsel at the time they settled, there is no plausible way they could have proximately caused the damages Plaintiffs are claiming, save for statute of limitations issues. If any malpractice claim exists in relation to this situation, it would concern the successor firm. Even if they simply picked up where the predecessor defendants left off, they still have five months to diligently and zealously represent the plaintiffs, including considering any areas possibly overlooked by the Defendants.
I agree with this holding in the case. By allowing a plaintiff to succeed in a like action, there could be several negative consequences. First, lawyers would be apprehensive to attend to litigation close to settlement and thus, other plaintiff would be left without representation. Second, if lawyers did take clients so close to settlement, it would open the door for more litigation.
I also agree with the holding in this case. As it is already, attorneys are subject to alot of liability. Allowing a Plaintiff to recover in a case such as this would open a floodgate of litigation as Ms. Goldberg mentioned, as well as deter attorney's from a profession that is already stricken with an enormous amount of risk.
I also agree with this ruling. This case seems to illustrate how an unhappy plaintiff may look to point the finger and place the blame on their attorney.