Legal Malpractice

Premature Distribution and Legal Malpractice

By (Andrew Lavoott Bluestone)

Proving the point that attorneys should not dabble in areas of the law unfamiliar them, we learned of the "7 month Rule" in estate and trust work.  The rule is that an executor is not liable for good faith distribution of estate proceeds if the distribution takes place at least 7 months after the death. In this case the executrix became personally liable to the DSS for monies distributed.

Central to Orosz v Eppig ;2010 NY Slip Op 33312(U); November 16, 2010 ;Supreme Court, Suffolk County ;Judge: Joseph C. Pastoressa is a discussion of the obligations of an attorney retained to investigate and handle a transactional or litigation matter.  Similar in our minds to a full-service elevator contract, it requires the attorney to do more than take the information from the client and make certain filings.  It requires the attorney to investigate, determine and act.

"An attorney may not shift to the client the legal responsibility the attorney was specifically hired to
undertake because of the attorney's superior knowledge (see, Hart v Carro, Spanbock, Kaster &
Cuiffo, 21 1 AD2d 617, 619; Cicorelli v Capobianco, 90 AD2d 524, 525, affd 59 NY2d 626).
An attorney may be liable for ignorance of the rules of practice, for failure to comply with conditions
precedent to suit, for neglect to prosecute or defend an action, or for failure to conduct adequate legalresearch (see, Conklin v Owen, 72 AD3d 1006; McCoy v Tepper, 26 1 AD2d 592; Gardner v Jacon,148 AD2d 794, 796; Grago v Robertson, 49 AD2d 645,646). While an attorney has a responsibility toinvestigate and prepare every phase of a client's case, an attorney should not be held liable for ignoranceof facts which the client neglected to tell him or her (see, Green v Conciatori, 26 AD3d 410, 41 1;Parksville Mobile Modular v Fabricant, 73 AD2d 595, 598)."

Full post as published by New York Attorney Malpractice Blog on December 16, 2010 (boomark / email).