Legal Malpractice as a Cause of Action in New York

Legal malpractice is a serious matter in New York, where clients rely on attorneys to represent them competently and protect their legal rights. To bring a successful legal malpractice claim, the plaintiff must meet specific criteria. Simply being dissatisfied with an outcome is insufficient; the plaintiff must establish that the attorney’s actions fell below the professional standard of care and that those actions caused actual, measurable harm.

To state a cause of action for legal malpractice, the plaintiff must allege three essential elements: (1) attorney negligence, (2) proximate causation, and (3) actual damages.

Attorney Negligence

An attorney is considered negligent if their conduct falls below the “ordinary and reasonable skill and knowledge commonly possessed by a member of the profession.” (Bernstein v Oppenheim & Co., P.C., 160 AD2d 428, 430 [1st Dept 1990]). This means that an attorney must perform their duties with the competence expected of a reasonably skilled professional. However, not every mistake constitutes malpractice. Attorneys are often required to make judgment calls, and reasonable strategic choices or tactics—even if they do not produce a favorable result—do not give rise to a legal malpractice claim. (Kassel v Donohue, 127 AD3d 674 [1st Dept 2015], lv dismissed 26 NY3d 940 [2015]).

Proximate Cause and “But For” Standard

The plaintiff must also demonstrate that the attorney’s negligence was the proximate cause of their damages. This is often referred to as the “but for” standard: the plaintiff must show that “but for” the attorney’s malpractice, they would not have suffered actual harm. In other words, there must be a clear causal link between the attorney’s misconduct and the plaintiff’s loss. Speculative or hypothetical damages will not suffice; the damages must be real and ascertainable. (Pellegrino v File, 291 AD2d 60, 63 [1st Dept 2002], lv denied 98 NY2d 606 [2002]).

Actual Damages

Lastly, the plaintiff must show that they suffered actual, quantifiable damages due to the attorney’s negligence. This could include financial losses from a failed lawsuit, lost settlement opportunities, or other measurable harm. Without actual damages, a legal malpractice claim cannot succeed, even if the attorney’s conduct was negligent.

Understanding these elements is essential for anyone considering a legal malpractice claim in New York. Consulting a qualified attorney is always recommended to assess whether these criteria are met and determine the viability of the claim.

Find the Law

“To state a cause of action for legal malpractice, plaintiff must allege attorney negligence, that the negligence was the proximate cause of the loss sustained, and actual damages. (Reibman v Senie, 302 AD2d 290, 290 [1st Dept 2003]). To be negligent, an attorney’s conduct must fall below the “ordinary and reasonable skill and knowledge commonly possessed by a member of the profession.” (Bernstein v Oppenheim & Co., P.C., 160 AD2d 428, 430 [1st Dept 1990]). Dissatisfaction with an attorney’s reasonable strategic choices and tactics does not constitute a basis to state a cause of action for attorney negligence. (Kassel v Donohue, 127 AD3d 674 [1st Dept 2015], lv dismissed 26 NY3d 940 [2015]). Plaintiff must also show that “but for” defendant’s malpractice, plaintiff would not have suffered “actual ascertainable damages.” (Pellegrino v File, 291 AD2d 60, 63 [1st Dept 2002], lv denied 98 NY2d 606 [2002]).” Halwani v. Boris Kogan & Assocs., 2019 N.Y. Slip Op. 32914, 6-7 (N.Y. Sup. Ct. 2019)