Legal Malpractice

"I would not have signed it" defeats Legal Malpractice Case

By (Andrew Lavoott Bluestone)

A frequent defense in legal malpractice is that while a mistake has been made, plaintiff is not hury anyway.  Here is one example of that defense in a New Jersey Case.  THE MAKE UP BAR, Inc.
Plaintiff-Appellant, vs. COOPER, LEVENSON, APRIL, NIEDELMAN & WAGENHEIM, P.A., and ROBERT E. SALAD, ESQ.,

A hair stylist is hired by plaintiff, and plaintiff asks its attorney to prepare a "no-hire" agreement.  Instead, a "no-solicitation" agreement is prepared.  Is there a difference?

"Severino, a hairdresser, claims that she retained attorney Salad to draft a "no-hire" agreement for execution by Scerati, a hairdresser whom she had agreed to employ for a short period until his own salon, Blink Spa, was opened. Instead, she claims Salad drafted a "non-solicitation" agreement, which proved effectively unenforceable when, in an injunctive action filed by The Make-up Bar against Scerati in the Chancery Division after four of The Make-up Bar's employees had found employment at Scerati's salon, each certified that he or she had not been solicited by Scerati. Scerati corroborated the employees' position in his own certification, and he stated additionally that he would not have signed a no-hire agreement if it had been presented to him. The action filed against Scerati was dismissed without prejudice with Severino's consent.

In its complaint, plaintiff simply alleged that it "suffered damages" and "substantial business losses" as a result of defendants' failure to draft an appropriate agreement that would enjoin Scerati from hiring plaintiff's employees for a certain period of time. In support of its claim, plaintiff provided a single-page submission of handwritten calculations that purported to identify the revenue generated by the four employees during 2001 and 2002. Plaintiff's only expert, attorney Barry E. Levine, provided a report completely devoid of any assessment of damages. Levine testified that he was unaware of the attrition rate of beauty salon employees and that he had performed no investigation into the matter, formal or otherwise. Further, neither Severino nor Levine, as lay and expert witnesses, produced evidence of the specific business diverted to the other salon by its hiring of plaintiff's four former employees. Plaintiff failed to identify which customers, if any, followed the employees to the other salon and which customers continued to patronize it. Moreover, plaintiff did not commission any analysis or comparison of profits generated or clients lost before and after the employees left plaintiff salon. In opposition to defendants' motion, plaintiff merely set forth that it was damaged in the amount noted in Severino's handwritten exhibit.

Plaintiff filed its complaint for legal malpractice on February 13, 2004. Following the reversal of the first summary judgment and remand to the trial court, defendants renewed their motion for summary judgment after additional discovery. As in its first motion for summary judgment, defendants conceded for purposes of the motion that they failed to prepare the agreement that Severino requested. In support of their motion, Scerati certified that he would not have signed a more restrictive agreement. "

Full post as published by New York Attorney Malpractice Blog on May 28, 2008 (boomark / email).