Legal Malpractice

How Close is the Relationship in Legal Malpractice?

By (Andrew Lavoott Bluestone)

In Denenberg v Rosen ;2010 NY Slip Op 00081 ;Decided on January 7, 2010 ;Appellate Division, ;First Department ; Moskowitz, J. the question of when the relationship begins between client and attorney is discussed.  Plaintiff, who was a knowledgeable investor, as a commodities trader, formed a retirement account that was ultimately disallowed by the IRS.  He incurred big losses.
At the time he formed the tax shelter, his accountants used the name of a law firm to highlight the deal.  Bryan Cave had issued an opinion letter, but in this case it was to be narrowly construed.

"The marketing materials included an opinion letter that Smith and Bryan Cave had issued, on September 10, 1999, to Hartstein/ECI expressing that the Pendulum Plan was legal. The opinion letter contained the caveat that it was solely for ECI:

"This opinion is solely for the information of ECI Pension Services, LLC and its professional advisors. We have not considered whether adoption of the Plan would be appropriate for any particular employer. ..."

Privity is the relationship between client and attorney.  At the strongest, there is a contractual relationship, undisputed, between them.  At the far reaches, on some occasions, an opinion letter upon which a person might reasonably rely has been sufficient.

Here, it was not enough. "The motion court should have dismissed the legal malpractice claims against Bryan Cave and Smith because no attorney-client relationship existed in 2002. The motion court was correct that the tax opinion letter was insufficient to support an attorney- client relationship, considering the letter stated it was for ECI solely and contained disclaimers cautioning readers to procure tax advice tailored to their specific plan. The motion court was also correct that the limited power of attorney was insufficient to show an attorney-client relationship as that document could also have [*7]authorized nonattorneys to act on behalf of plaintiff. The limited power of attorney only authorized Bryan Cave to represent "Robert A. Dennenberg, a Sole Proprietorship Defined Benefit Pension Plan" before the IRS and only for "Form 5307," which was the application submitted to the IRS for it to determine whether to approve the Plan. Plaintiff does not contend that Bryan Cave was negligent in submitting the Form 5307.

However, the motion court improperly relied on plaintiff's entirely conclusory allegations that plaintiff retained the services of Bryan Cave in 2001 to support the legal malpractice claim. Plaintiff points to no communications with Bryan Cave for legal advice about implementation of the Plan. Plaintiff offers no objective facts or actions to show the existence of an attorney-client relationship or the parties' mutual agreement that Bryan Cave would perform ongoing legal services for plaintiff. "

Full post as published by New York Attorney Malpractice Blog on January 12, 2010 (boomark / email).