Legal Malpractice

Privity and Dismissal in Legal Malpractice

By (Andrew Lavoott Bluestone)

Privity of representation by an attorney of the client is a bedrock concept of legal malpractice.  One interesting situation is in union paid attorney representation.  An alluring benefit of membership in a union is pre-paid or free legal representation in certain situations,  This benefit may mean that there is no real attorney-client relationship sufficient for a legal malpractice action later, if things go wrong.

Similar to the union situation is one in which an association or group of professionals hire an attorney for the members.  Here, in Huffner v. Ziff, Weiermiller, Hayden & Mustico, Llp ,2008 NY Slip Op 07831,Decided on October 16, 2008 ,Appellate Division, Third Department  we see whether an attorney represents a group or a single client.
 

"In 1992, plaintiff, while practicing medicine as chair of the emergency department at Arnot Ogden Medical Center (hereinafter the hospital), and his fellow emergency department physicians negotiated with the hospital over their new employment contract. Plaintiff contacted and met with an attorney at defendant's law firm regarding the new contract.

Defendant argues that no attorney-client relationship existed because it represented the group of physicians, not plaintiff individually. As no written retainer agreement exists, we must "look to the words and actions of the parties to ascertain if an attorney-client relationship was formed" (C.K. Indus. Corp. v C.M. Indus. Corp., 213 AD2d 846, 848 [1995]). Plaintiff asserts that defendant was representing each of the physicians individually. The record does not reveal whether the physicians are organized as any type of official entity. No one signed the contract as a representative of the physician group; each physician signed on his own behalf. The bill for defendant's services was sent to and paid by the physician's group, apparently out of an organizational bank account. Plaintiff was a prior client of defendant and was the physician who met with defendant. He remembers mentioning to defendant details specific to his own medical situation concerning the disability insurance issue. The main attorney from defendant's firm could not specifically recall any such discussion. Under the circumstances, the existence of an attorney-client relationship remains an unresolved question of fact. Therefore, as plaintiff failed to prove an element of his claim, his cross motion for summary judgment was properly denied. "

Full post as published by New York Attorney Malpractice Blog on October 31, 2008 (boomark / email).