An overview of New York attorney malpractice

Legal remedies are potentially available to clients hurt by lawyer negligence.

Hiring a lawyer is no small thing for most. Legal advice is sought when a matter is personally or financially important to the client such as having been wrongly harmed - physically, materially or financially - needing to defend against a civil lawsuit or criminal charge, engaging in a real estate transaction, seeking assistance with probate or estate planning, embarking on a business venture, making an investment or facing any of a myriad of other legal issues.

Whatever the subject, the client has the right to expect that the attorney will uphold professional standards and advocate vigorously for the client. When a lawyer fails to do so and the client is harmed, the client may be able to bring a legal malpractice lawsuit for damages in New York state court.

Legal malpractice: examples

Some scenarios of potential liability:

  • Failing to file a lawsuit within the statute of limitations (deadline)
  • Failing to conduct adequate discovery of evidence
  • Failing to disclose an offer of settlement to the client or settling a case without the client's consent
  • Failing to serve or file proper legal documents by required deadlines
  • Failing to vigorously advocate for a client
  • Missing an appeal deadline
  • Providing inaccurate or unrealistic information or advice
  • Taking on a legal matter without the necessary knowledge or experience
  • Failing to disclose a conflict of interest
  • And many more

Legal malpractice: the attorney-client relationship

First, to support a claim of legal malpractice, there must have been an attorney-client relationship.

Legal malpractice: negligence

The client must show that the lawyer was negligent, which means that counsel failed to exercise the ordinary and reasonable skill, diligence and knowledge of a member of the profession.

Legal malpractice: causation

It is not enough to show that the lawyer was negligent. The plaintiff must also prove that the attorney's negligent representation proximately caused harm (financial or legal injury) to the client, usually meaning that he or she would have otherwise (but for the negligence) been successful in the underlying, original matter in which the former lawyer represented the client - the so-called suit within the suit - or would not have been liable for damages in that matter, depending on what the outcome was.

Legal malpractice: damages

The plaintiff can only collect damages in a legal malpractice lawsuit if he or she can show actual damages of value. If the damages claimed are too hypothetical or speculative, meaning the connection between the malpractice and the harm is not sufficiently clear, damages would not be available.

Seek an attorney experienced in legal malpractice

It is understandable that a client who believes a former attorney was incompetent or negligent may feel skittish about hiring another one, so it is important to seek out one with significant experience in lawyer malpractice. New York law legal malpractice law is complicated, so counsel who is familiar with the issues is essential. The experienced lawyer will also have relationships with legal experts to analyze the underlying claim and testify if necessary as to the likelihood of success if not for the original attorney's actions.

One of the challenges is the statute of limitations, which in legal malpractice is three years from the act of malpractice. However, calculating that deadline can be tricky and exceptions may apply.

Legal counsel can also evaluate whether additional claims may be available against a former lawyer such as breach of fiduciary duty, fraud, breach of contract, unjust enrichment, conversion and more.

The lawyers of Schwartz, Ponterio & Levenson, PLLC, represent legal malpractice clients throughout the New York City area.

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