Legal Malpractice Law Review : Professional Responsibility Case Summaries & Commentary : Bennett J. Wasserman : LegalMalpractice.com : Lawyer Malpractice & Legal Ethics

DiTondo v. Meagher, 24 Misc. 3d 720, 883 N.Y.S.2d 690 (Sup 2009).

NY: Underlying negligence action, choice of law

Student Contributor: Nicole Milone

Facts: Joseph DiTondo (“DiTondo”) was injured while unloading a chain link fence he delivered to a National Rent-A-Fence facility in North Carolina. DiTondo hired Frederick J. Meagher, Jr of Meagher & Meagher Law Firm  to represent him in the underlying negligence action. The injury took place in North Carolina, where there is a contributory negligence bar to negligence actions. However, DiTondo lives in New York and Rent-A-Fence has its principal place of business in California, and both states practice comparative negligence law. Meagher brought the action in federal district court in New York. Rent-A-Fence submitted a motion for summary judgment, which went unopposed. Chief Judge Scullin struck Meagher’s opposition papers because they failed to comply with federal rules. The summary judgment motion argued that North Carolina’s law of contributory negligence should apply in this case, which would bar DiTondo’s recovery. The judge determined that North Carolina has the most contacts with this litigation, being the site of the injury and the location of a Rent-A-Fence facility, and applied North Carolina law. However, the judge denied Rent-A-Fence’s motion for summary judgment, finding they did not meet the high standards applied in North Carolina to contributory negligence cases on summary judgment. Before the case went to trial, Meagher filed a motion to withdraw as DiTondo’s counsel, which the judge granted provided he located another attorney willing to take the case.

Issue: Whether a lawyer’s failure to properly research and argue the choice of law in a federal diversity case constitutes legal malpractice?

Ruling: Yes. Meagher failed to meet the proper standard of care in representing his client. If not for his error, DiTondo would have prevailed in the underlying case. Meagher should have argued that applying the New York choice of law rule, or the Neumeier rule, North Carolina was not the proper choice of law. The judge found that North Carolina law applies because it was the site of the accident as well as the location of a Rent-A-Fence facility. However, Meagher should have pointed out that Rent-A-Fence has its principal place of business in California, which means it is domiciled in California. If Meagher had presented this version of the facts to the judge in the underlying case, he would not have applied North Carolina law. North Carolina has no interest in applying its law to these facts because both parties are not domiciled in the state.

Lesson: A lawyer is responsible for zealously advocating on behalf of their client. Failure to do the proper research and argue the relevant law will result in a malpractice action against the attorney. 

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Boyson v. Archer & Greiner, P.C., 308 N.J. Super. 287 (App. Div. 1998)

NJ Underlying Products Liability Action

Student Contributor: Natalie Resto

Facts: The Defendant law firm was hired by the client to represent it as a defendant in a products liability action. The case was ultimately settled, and the client subsequently brought a malpractice action against the law firm to recover damages and defense costs. The client alleged that the law firm had negligently failed to provide notice to the client’s liability carrier which would have paid for the defense and provided indemnity for damages.
The law firm moved for summary judgment claiming that there was no coverage under the client’s comprehensive general liability policy under New Jersey law, and therefore, they were not negligent in failing to notify the carrier of the claim against the client. The client, however, alleged that Pennsylvania law governed the dispute, and that under Pennsylvania law, the insurance policy would have provided coverage to them in the underlying action despite a products hazard exclusion.

Issue: Did the law firm commit malpractice by failing to pursue a defense from the client’s liability carrier?

Ruling: The Appellate Division held that since the underlying action involved an injury that took place in Pennsylvania to a resident of Pennsylvania, New Jersey choice-of-law principles would require application of Pennsylvania law in deciding whether the law firm proceeded competently in defending the action.

Lesson: In a legal malpractice case, the choice of law to be applied is the law that would have governed in the underlying action.

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