Thursday Attorney Malpractice Update 12/20/07
Posted: December 20th, 2007
By: Andrew Bluestone, Esq.
Category: Attorney Malpractice, SHOWCASE CORNER, The News Beat

THIS WEEK’S LEGAL MALPRACTICE CASE

The most important case of this week is Barnett v. Schwartz, 2007 NY Slip Op. 09712, 2d Dept, December 11, 2007.  It is important for three reasons.  We’ll discuss the first today:

“But for” causation is not as difficult as had previously been believed.

Does the failure to exercise "that degree of care, skill and diligence commonly possessed and exercised by members of the legal community.” have to be “the” proximate cause of damages?  Must it be “a” proximate cause of damages? 

The Appellate Division says that it must be nether “the” or “a” proximate cause of action, but simply requires proof that “but for” the negligence of the defendant-attorney, the plaintiff-client would have prevailed in the underlying action.”

This formulation does not require a greater, more direct degree of causation, and the Appellate Division did not find a “substantive import to the variations in the formulations discussed above, holding that a plaintiff-client in a legal malpractice action need prove only that the defendant-attorney’s negligence was a proximate cause of damages.”

“But for” causation is not synonymous with sole proximate cause, and it is not required that the degree of causation in legal malpractice be any 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.  There is no case which singles out attorneys for “special treatment on causation.”

THIS WEEKS LEGAL MALPRACTICE STORY

Disgorgement of fees is this year’s flavor de jour.  More and more legal malpractice cases, especially involving very large law firms are coming from Bankruptcy Court. 

The connection between these two concepts is seen in the recent Pillsbury Winthrop Shaw Pittman disgorgement case involving $4 million.  The Chapter 11 Trustee for SonicBlue, Inc. is asking for the fees to be returned.  The firm was removed from the case in March because it failed to disclose a 2002 letter in which it promised some SonicBlue investors that they would be repaid in full even if the company went into bankruptcy.  The Trustee argued that this letter biased the firm towards a plan which actually did repay those investors.

For more on legal malpractice check out the New York Attorney Malpractice Blog.

Post a Comment   |   (0) Comments  |   Permanent Link  Go Back

Comments
There are no comments for this post.