Frequently Asked Questions about Legal Malpractice
Including articles and books written by Richard Klass
Legal Malpractice: 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….
In the recent decision of Dombrowski v. Bulson, 2012 NY Slip Op. 04203 [May 31, 2012], the New York State Court of Appeals dealt with an open issue in the area of legal malpractice, namely: whether a former client may recover nonpecuniary damages in a law suit brought against his attorney for legal malpractice arising from the client’s alleged wrongful incarceration….
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….
(From Law Currents, Spring 2008)
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….
There is a special statute designed to punish attorneys who commit fraud upon the court, other parties or their clients, Judiciary Law Section 487….
What Is the “Likely to Succeed” Standard in Legal Malpractice Cases that the New York State Court of Appeals Adopted?
The New York State Court of Appeals decided an issue of first impression in New York State concerning an issue that arises in legal malpractice cases. In Grace v. Law, [October 21, 2014], the Court had to decide whether a client’s failure to pursue an appeal in the original, underlying lawsuit (which failed) bars him from pursuing a legal malpractice case against the attorney who lost the case….
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….
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….
(From Law Currents, Winter 2011)
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….
Quick Reference Guide to Attorney’s Liens and Legal Fee Enforcement:
What to do if your client stops paying you
by Richard A. Klass, Esq.
Quick Reference Guide to Attorney’s Liens and Legal Fee Enforcement is intended to provide attorneys with information relating to the attachment and enforcement of retaining liens and charging liens; methods of enforcement of these attorney’s liens; steps to be taken to pursue legal action for the recovery of legal fees; and risk management and ethical issues relating to the enforcement of attorney’s liens and actions.
Retention and Withdrawal of Counsel: a guide for attorneys
By Richard A. Klass, Esq.
This booklet is adapted from a continuing legal education (“CLE”) course of the same name taught by Richard A. Klass.
“There are many important considerations when a lawyer is being retained by a client and when the lawyer may be withdrawing from representation of the client.”