Generally, a plaintiff has an obligation to mitigate her damages. In the context of a legal malpractice claim, the professional may argue that the plaintiff is obligated to cure the alleged harm by appealing the underlying issue. In the appropriate scenario, the defendant attorney may claim that the plaintiff had the last opportunity to avoid any damages but improperly filed a malpractice claim as opposed to appealing the underlying matter. Just how far must a plaintiff proceed with litigation before pointing a finger at former counsel? This issue was recently addressed by the to the New York Court of Appeals in a case of first impression.
In the underlying dispute, the plaintiff alleges that his former counsel failed to timely file suit against an ophthalmologist at a local Veteran’s Administration clinic. The plaintiff’s claim was that the VA failed to diagnose glaucoma, which caused blindness in his right eye. In response, the VA successfully argued that the claims were time-barred. The district court agreed and dismissed the plaintiff’s claims. The plaintiff’s counsel then sent a letter stating that he was unlikely to succeed on his remaining claims against the VA. Based on this advice, the plaintiff agreed to discontinue the underlying action.
The plaintiff retained new counsel and filed a legal malpractice suit against his former attorneys for failing to timely sue the VA. The attorney defendants answered that the plaintiff was estopped from a malpractice claim because he voluntarily discontinued the underlying action without filing an appeal. The defendant law firm moved for summary judgment.
The Court of Appeals rejected the law firm’s argument that an appeal is a necessary prerequisite to a legal malpractice action. Instead, the Court adopted a “likely to succeed” standard applied in several other jurisdictions, which assesses whether a client can pursue a legal malpractice action based on the likelihood of success of the underlying appeal. Thus, a legal malpractice claimant may be able to sustain an action absent an appeal where the appeal would be fruitless or without merit. Because the law firm defendant failed to present evidence that the plaintiff would have been successful on appeal, the Court determined that the legal malpractice action could proceed.
Here, the attorneys took the step of attempting to clearly document the end of engagement and explained to the former client why the case against the VA was no longer worth pursuing. Later, however, the attorneys took the opposite stance and claimed that the plaintiff was obligated to pursue that fruitless claim on appeal. Not a comfortable scenario for any attorney. This theme may be prevalent in the legal malpractice context because we’re asked to predict how an underlying case would have changed but for the attorney’s negligence or but for an appeal or but for timely filing suit. The issue is that there is no efficient and cost-effective means to answer those questions. Hence, the result is often expensive and lengthy litigation.