Legal Malpractice

Successor Counsel or Not in a Legal Malpractice Case

By (Andrew Lavoott Bluestone)

An often found situation in legal malpractice cases is the successor counsel problem.  In a nutshell, here it is.  Plaintiff hires attorney 1 who makes a mistake.  Plaintiff finds out about the mistake, which has not led to outright dismissal, but rather, to a problem.  Plaintiff hires attorney 2 who is unable to solve the problem, and the case is dismissed.  May plaintiff sue attorney 1 ?  The answer is not clear, as it depends on the individual facts, but attorney 1 will certainly defend on the proposition that successor counsel took over prior to outright dismissal, and had the last clear chance to fix the problem, thus insulating attorney 1 from liability.

Here, in Guzzello v Steinberg, Finneo, Berger, Barone & Fischoff, P.C. ;2009 NY Slip Op 09427 ;
Decided on December 15, 2009 ;Appellate Division, Second Department  we see one additional element added in.  Plaintiff is too late to sue one of the defendants, but they are free to cross-claim amongst themselves.
 

"Although Berger and the Berger firm established that the action insofar as asserted against them was time-barred, the appellants are not precluded from asserting the cross claims against Berger and the Berger firm (cf. Sommer v Federal Signal Corp., 79 NY2d 540, 558; Hill v Metropolitan Suburban Bus Auth., 157 AD2d 93, 100). Moreover, the Supreme Court improperly considered the argument of Berger and the Berger firm that they were entitled to summary judgment dismissing the appellants' cross claims insofar as asserted against them on the ground that the appellants, as successor counsel, had the opportunity to protect the plaintiff's rights. That argument was raised for the first time in the reply papers of Berger and the Berger firm (cf. Matter of Harleysville Ins. Co. v Rosario, 17 AD3d 677, 677-678). In any event, since, under the circumstances, the appellants cannot be considered successor counsel (cf. Northrop v Thorsen, 46 AD3d 780, 783; Johnson v Berger, 193 AD2d 784, 786; Sucese v Kirsch, 177 AD2d 890, 892), that argument is without merit. Accordingly, the court should have denied that branch [*2]of the motion of Berger and the Berger firm which was for summary judgment dismissing the appellants' cross claims insofar as asserted against them. "
 

Full post as published by New York Attorney Malpractice Blog on December 23, 2009 (boomark / email).