Legal Malpractice

Attorney 1 Responsible for acts of Attorney 2 in Legal Malpractice

By (Andrew Lavoott Bluestone)

Yesterday we examined this case: Whalen v DeGraff, Foy, Conway, Holt-Harris & Mealey ,2008 NY Slip Op 06342 [53 AD3d 912] ,July 17, 2008 ,Appellate Division, Third Department  on the issue of when an expert is necessary.  Today, we look at how a referring attorney, [or a supervising attorney] may become responsible for the negligence of the referred attorney. 
 

In this case attorney 1 obtained a judgment, and retained attorney 2 to collect- protect- perfect the judgment against debtor's estate in Florida.  Attorney 2 did not protect, and the judgment was noncollectable.  Was attorney 1 responsible for the shortcomings of attorney 2?\

"Plaintiff commenced this action against defendant alleging, among other things, that defendant was vicariously liable for the negligence of Bailey and/or negligently failed to supervise Bailey in filing the notice of claim in Florida. Defendant then moved for summary judgment dismissing the complaint and plaintiff cross-moved for summary judgment. Supreme Court denied the respective motions in a July 2006 order. Plaintiff moved for leave to reargue and/or renew and defendant moved for reargument. Upon reargument, Supreme Court, in November 2007, adhered to its original determination. The parties now cross-appeal from both the 2006 and 2007 orders.[FN2]

Plaintiff contends that defendant is liable for damages resulting from Bailey's failure to file the notice of claim either on the basis that defendant had a nondelegable duty to file such notice of claim or based upon defendant's negligent supervision of Bailey. Defendant maintains that its duty to plaintiff was completely met when it retained Bailey to file the notice of claim and that it was entitled to rely on Bailey to perform that act.

The general rule is that "[a] firm is not ordinarily liable . . . for the acts or omissions of a lawyer outside the firm who is working with firm lawyers as co-counsel or in a similar arrangement" (Restatement [Third] of Law Governing Lawyers § 58, Comment e), as such a lawyer is usually an independent agent of the client. Here, however, defendant solicited Cagan and Bailey and obtained their assistance without plaintiff's knowledge. Although plaintiff was later advised that Bailey had been retained by defendant, she had no contact with Bailey and did not enter into a retainer agreement with that firm. Defendant concedes that plaintiff completely [*3]relied on defendant to take the necessary steps to satisfy her judgment against Gerzof. Under these circumstances, defendant assumed responsibility to plaintiff for the filing of the Florida estate claim and Bailey became defendant's subagent (see Restatement [Third] of Law Governing Lawyers § 58, Comment e). Therefore, defendant had a duty to supervise Bailey's actions (see Restatement [Third] Agency § 3.15; Restatement [Second] Agency §§ 5, 406).[FN3] "

Full post as published by New York Attorney Malpractice Blog on November 13, 2008 (boomark / email).