Legal Malpractice

Is the Failure to Investigate Legal Malpractice?

By (Andrew Lavoott Bluestone)

The short answer is, Yes...  Here is a more fully reasoned opinion from the Third Department in Thompson v. Seligman, 2008 NY Slip Op 06496 [53 AD3d 1019] ;July 31, 2008 ;Appellate Division, Third Department :
"Plaintiff commenced this legal malpractice action against defendants on the ground that they failed to timely advise her that she may have a valid third-party claim. Defendants moved for summary judgment dismissing the complaint, alleging that they had no duty to investigate plaintiff's representations that she was employed by the Gideon and that they acted reasonably under the circumstances. Supreme Court denied the motion, finding that plaintiff had raised questions of fact with respect to defendants' duty to investigate her claim and whether they were negligent in performing that duty. Defendants now appeal and we affirm. [*2]

Defendants are correct that "[t]he scope of defendant[s'] duty is, in the first instance, an issue of law for the court" (Moeske v Nalley, 295 AD2d 857, 858 [2002]). Unquestionably, "[a]n attorney has the responsibility to investigate and prepare every phase of his or her client's case" (Brady v Bisogno & Meyerson, 32 AD3d 410, 410 [2006], lv denied 7 NY3d 715 [2006]). We find as a matter of law that defendants owed such duty to plaintiff here. The question then becomes whether, in the performance of that duty, defendants " 'exercise[d] that degree of care, skill, and diligence commonly possessed and exercised by a member of the legal community' " (Perks v Lauto & Garabedian, 306 AD2d 261, 261 [2003], quoting Volpe v Canfield, 237 AD2d 282, 283 [1997], lv denied 90 NY2d 802 [1997]).

Under these circumstances, we agree with Supreme Court that plaintiff has raised a question of fact as to whether defendants exercised the appropriate degree of care in performing their duty to investigate the availability of a third-party claim by plaintiff (see Guiles v Simser, 35 AD3d 1054, 1055 [2006]), which precluded granting defendants' motion for summary judgment (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Hook v Village of Ellenville, 46 AD3d 1318, 1319 [2007])."
 

Full post as published by New York Attorney Malpractice Blog on October 06, 2008 (boomark / email).