Legal Malpractice

A Previous Appeal, A Retaining Lien and Dismissal in Legal Malpractice

By (Andrew Lavoott Bluestone)

Here is a short, pungent and dispositive decision by the Appellate Division, Second Department in Zito v Fischbein Badillo Wagner Harding  ; 2011 NY Slip Op 00285 ; Decided on January 20, 2011 Appellate Division, First Department.
 

We've seen a "charging lien" utilized as res judicata against a subsequent legal malpractice case, but the use of a "retaining lien" is much more rare.  Presumably, there was litigation in which the Court also determined that fees were actually due to the law firm, and not simply that the law firm had the right to retain files pending a later determination.

"Plaintiff is collaterally estopped from seeking a declaration that he had cause to terminate his attorney-client relationship with defendant Nimkoff Rosenfeld & Schechter (the third cause of action) by this Court's order on a prior appeal, which implicitly determined that defendant was not discharged for cause, because in fact it was not discharged at all but voluntarily withdrew (see 58 AD3d 532 [2009]). Any other construction of the order would be contrary to law, since an attorney discharged for cause "has no right to compensation or to a retaining lien" (Teichner v W & J Holsteins, 64 NY2d 977, 979 [1985]). The issue of discharge that plaintiff raised in his legal malpractice action is identical to the issue addressed by this Court in the prior appeal of the original action. Indeed, during the prior appeal, plaintiff asked this Court to take judicial notice of the malpractice action he commenced in Nassau County, and fully briefed his malpractice claims.

The second cause of action, alleging legal malpractice, is barred under the doctrine of res [*2]judicata by the court's imprimatur of a retaining lien (see Kinberg v Garr, 28 AD3d 245 [2006]; Molinaro v Bedke, 281 AD2d 242 [2001]; Summit Solomon & Feldesman v Matalon, 216 AD2d 91 [1995], lv denied 86 NY2d 711 [1995]; see generally Blair v Bartlett, 75 NY 150, 154 [1878]). "

Full post as published by New York Attorney Malpractice Blog on February 01, 2011 (boomark / email).