Legal Malpractice

The Money is Lost, but is it Legal Malpractice

By (Andrew Lavoott Bluestone)

Much litigation arises from the "deep pocket" theory.  Put in the best light, it might be said that a plaintiff has really been wronged, and now the search is on for the usual suspects.  Put another way, someone has lost a lot of money, due to no fault of his own, and he would like to be reimbursed.  Who is available to reimburse plaintiff?

Here, in Winter v. Dowdall a New York County case, we see how this unwinds. Will it be the attorneys who handled a transaction?   Justice Tolub analyzes the following:

Plaintiff wants to sell property and do a 1031 like-kind exchange.  He hires attorneys who correctly tell him that a third-party must hold the proceeds of the sale in a designated account, and then give the proceeds back to purchase the second property.

The sale goes correctly, the money is delivered to a company which specializes in like-kind exchanges, and apparently it disappears while it is supposed to be in the company's accounts.

Is Citibank responsible?  Is the attorney responsible?  From the caption and the opinion, it seems that the actual holder of the funds is no longer a defendant, and probably [we are guessing] no longer is of any use to plaintiff.  Lost, stolen or missing?

In the event, both attorneys are out of the case, because they are not responsible for the independent torts of the third party funds holder.  Although not specifically stated, there does not seem to be a theory of negligence in the selection of the fund holder, which was probably just another company without apparent faults.

Full post as published by New York Attorney Malpractice Blog on February 12, 2009 (boomark / email).