Legal Malpractice

"Unsettled Law" and Legal Malpractice

By (Andrew Lavoott Bluestone)

Attorneys deal in areas of well settled law and in areas of "unsettled law."  Clients have problems or issues which exist, no matter how settled the law is in that area.  Attorneys are held to a standard of reasonable care in all aspects of their representation.  How does one square these contradictory settings?

An answer is given in HNH Intl., Ltd. v Pryor Cashman Sherman & Flynn LLP ; 2009 NY Slip Op 04964 ; Decided on June 18, 2009 ;Appellate Division, First Department .
 

"Plaintiffs allege that defendant, a law firm, incorrectly advised them concerning the early 20th century sound recordings they proposed to re-engineer, re-master and distribute as CDs. After the CDs had been manufactured and distributed, plaintiffs were sued and found liable for common-law copyright infringement.

The court dismissed the legal malpractice complaint, pursuant to CPLR 3211(a)(1), based on documentary evidence from which it concluded that the state of the law at the time the advice was given was unsettled and defendants therefore had not " failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession'" at that time (quoting Darby & Darby v VSI Intl., 95 NY2d 308, 313 [2000]).

We conclude, however, that the state of the law was not so unsettled at the time the advice was given as to bar as a matter of law plaintiffs' claim that a reasonably skilled attorney would have advised that the CDs were or might be entitled to common-law copyright protection and would not have advised that the release of the CDs would not result in any copyright liability. Although defendant maintains that it did advise plaintiffs of the possibility of common-law liability and did not advise plaintiffs that the release of the CDs would not result in any copyright liability, we must accept the facts alleged in the complaint as true and accord plaintiffs the benefit of every possible
favorable inference (Arnav Indus., Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & [*2]Steiner, 96 NY2d 300, 303 [2001]). "
 

Full post as published by New York Attorney Malpractice Blog on June 19, 2009 (boomark / email).