Legal malpractice
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Legal malpractice is the term for negligence by an attorney that causes harm to his or her client. In order to rise to an actionable level of negligence, the injured party must show that the attorney's acts were not merely the result of poor strategy, but that they were the result of errors that no reasonable attorney would make. Furthermore, legal malpractice requires a showing of an injury that would not have happened unless the attorney had not been negligent. If the injury might have occurred despite different actions by the attorney, no cause of action will be permitted.
A common basis for a legal malpractice claim arises where an attorney misses a deadline for a filing a paper with the court, and this error is dispositive of the case.
There exists a community of lawyers within the larger legal community whose entire practice consists of representing plaintiffs in legal malpractice cases.
The Basic Elements of a Legal Malpractice Case
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.
The Harsh Rule of the Statute of Limitations in Legal Malpractice Cases
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.
