Legal Malpractice

An Attorney's Mistake with No Remedy in Legal Malpractice

By (Andrew Lavoott Bluestone)

Nature abhors a vacuum, they told us in high school and the law abhors a wrong without a remedy. One particular area of legal malpractice where this curers is criminal defense, in which no legal malpractice action might be brought by a convicted defendant, no matter whether the attorney's mistakes contributed, or caused the conviction.

Another area is the estates-peri-death area.  One example is the will beneficiary who does not receive a legacy or bequest because of attorney mistakes, but has no privity.  The attorney's mistake may not be litigated by the will beneficiary.  Here is another example:

Estate of Saul Schneider v Finmann ;  2009 NY Slip Op 02319   Decided on March 24, 2009
Appellate Division, Second Department .  Assume here for this example that the attorney mishandled the insurance transfer.  Money is lost to the estate because of it.  May the estate successfully sue?  No.
""The well-established rule in New York with respect to attorney malpractice is that absent fraud, collusion, malicious acts or other special circumstances, an attorney is not liable to third [*2]parties, not in privity, for harm caused by professional negligence" (Estate of Spivey v Pulley, 138 AD2d 563, 564). Inasmuch as the estate was not in privity with Finmann, and there is no allegation that one of the exceptions to the privity requirement is applicable here, the estate may not maintain an action for legal malpractice against Finmann in its own right (see Deeb v Johnson, 170 AD2d 865; cf. Estate of Nevelson v Carro, Spanbock, Kaster & Cuiffo, 259 AD2d 282, 285). Moreover, Schneider himself did not have a claim during his lifetime against Finmann for legal malpractice, since the only alleged damage suffered from the malpractice was the increase in estate tax liability, which could not have been incurred while Schneider was alive. Consequently, the estate may not maintain this action under EPTL 11-3.2(b) (see EPTL 11-3.2[b]; Deeb v Johnson, 170 AD2d at 866; Rutter v Jones, Blechman, Woltz & Kelly, P.C., 264 Va 310, 314; cf. Nembach v Giaimo & Vreeburg, 209 AD2d 222, 222-223). "
 

Full post as published by New York Attorney Malpractice Blog on April 08, 2009 (boomark / email).