Legal Malpractice

Wben It's Legal Malpractice or Breach of Fiduciary Duty

By (Andrew Lavoott Bluestone)

Sometimes one reads a decision not knowing whether the court will dismiss or not dismiss.  Sometimes, the question is whether the attorney's acts amount to legal malpractice or breach of fiduciary duty.  Here, the Court points out exactly how it perceives the case.  In B&R Consol LLC v. Powell we see the story of an attorney who is accused of handling a loan, receiving the pay-off, holding the money and making believe that the loan was still in existence.

Is taking money from the client by withholding the pay-off sum legal malpractice or breach of fiduciary duty.  The Court finds that "However, this failure, the failure to keep the plaintiff apprised of the status of the loan, and the bad advice given were clearly not stand-alone errors by Powell.  All were committed in the service of hiding the loss caused by the misappropriation, or at best, constituted an excuse for the loss - an excuse that would not relieve Powell of liability in any event."

The Court found the "facts" asserted in opposition to be patently incredible, "even under the generous standards to be applied to such opposing proof under the authority regarding summary judgment...."  Summary judgment was granted to Plaintiff.

Full post as published by New York Attorney Malpractice Blog on May 25, 2010 (boomark / email).