Forgoing Appeal Doesn't Bar Client Malpractice Claim

By Samson Habte

Oct. 21 — A client who decides not to appeal a litigation defeat does not necessarily forfeit the right to assert a malpractice claim against his lawyers for allegedly mishandling the underlying action, the New York Court of Appeals declared Oct. 21.

Writing for the court, Judge Sheila Abdus-Salaam acknowledged support for the general proposition “that an attorney should be given the opportunity to vindicate him or herself on appeal of an underlying action prior to being subjected to a legal malpractice suit.”

But the court declined to adopt “a per se rule that failure to appeal in an underlying action bars a legal malpractice claim.” Instead, it embraced what courts in other states have dubbed the “likely to succeed” standard.

“[A] party who is likely to succeed on appeal of the underlying action should be required to press an appeal,” Abdus-Salaam explained. “However, if the client is not likely to succeed, he or she may bring a legal malpractice action without first pursuing an appeal of the underlying action.”

The order affirms decisions that allowed a plaintiff who lost a personal injury case to press malpractice claims against his attorneys even though the client declined to appeal summary judgment rulings that dismissed his underlying claims.

To contact the reporter on this story: Samson Habte in Washington at shabte@bna.com

To contact the editor responsible for this story: Kirk Swanson at kswanson@bna.com

The opinion is available at http://www.bloomberglaw.com/public/document/No_165_2014_BL_294925_NY_Oct_21_2014_Court_Opinion.