Legal Malpractice

When is Legal Malpractice Ripe?

By (Andrew Lavoott Bluestone)

Bankruptcy and legal malpractice have a special relationship.  There are special rules, there are collateral estoppel dimensions to fee requests, and the mere filing of bankruptcy may end a plaintiff's right to a cause of action.  Here, in GREENSTREET FINANCIAL, L.P., against- GREENSTREET FINANCIAL, L.P.,  UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK; 2010 U.S. Dist. LEXIS 84827 we see  the principal that all elements of a legal malpractice case, incliuding damages must be in place before the case is ripe.

"In the instant case, "actual damages" have not been determined, since judgment has not been entered against Smul and the Smul Trust in this action, and, according to the fourth-party defendants, litigation is also pending in Florida, that might affect the amount, if any, for which Smul is liable to the plaintiff and/or the third-party plaintiffs. Therefore, to the extent the fourth-party defendants move for summary judgment, their motion must be denied, without prejudice, as premature, since the issue of "actual damages" has not yet been determined. See id. at 214 (finding that adjudication of a legal malpractice claim was "premature" when the plaintiff could not "establish actual damages absent a final judgment or resolution in the still pending controversy"). As a result, the fourth-party defendants' request, that the claims [*7] made against them in the Fourth-Party complaint be stayed, pending resolution of the claims against Smul and the Smul Trust, is granted. See id (noting that "a legal malpractice claim may not be asserted until the matter on which the claim is based has been concluded," and determining that the legal malpractice claim would be tried after a verdict was rendered, if still appropriate). The motion to sever is denied, as moot."

Full post as published by New York Attorney Malpractice Blog on August 23, 2010 (boomark / email).