Legal Malpractice

Representing Both Sides and No Retainer Agreement in Legal Malpractice Case

By (Andrew Lavoott Bluestone)

A series of loans, a single attorney in the transactions, a failure to file the mortgage, a defense that the clients should have filed the mortgage themselves, a loss of $ 750,000.  How can this happen to sophisticated lenders?

The question is not exactly answered, but the picture that emerges from Brija v. Fernandez NY SlipOp 32559, New York County, Justice Ling-Cohan is of lenders with money but little experience, an attorney who is willing to represent both sides, and what looks like failure to file security interests. 

One reason that the case resisted dismissal was the utter lack of retainer agreements or documents which showed when the attorney was finished with the work.  An otherwise paled defense of statute of limitations failed because there was not a single indicator whether the representation lasted a single day or years.

As Justice Ling-Cohan wrote:"The conflicting statements about the end of his representation, the absence of a retainer agreement by Fernandez with any party, the lack of a document signifying the conclusion of his representation (of either plaintiffs or borrowers) the internal inconsistency of the date ranges provided by either side and the possible relevance of the letters and note"... all rule out dismissal on the statute of limitations.

Full post as published by New York Attorney Malpractice Blog on September 24, 2010 (boomark / email).