Legal Malpractice

Can a Client be too Poor for Legal Malpractice?

By (Andrew Lavoott Bluestone)

The decision doesn't tell us in what capacity the attorneys represented the client, but they are now in suit over legal fees, with a legal malpractice counterclaim.  As we read this case, we wondered whether the time and effort was worth it.  Will there ever be a collection of fees?

in Bender, Jenson & Silverstein, LLP v Walter ;  2009 NY Slip Op 08572 ;Decided on November 17, 2009 ;Appellate Division, Second Department  the attorney is seeking fees.  Defendant-counterclaimant asked the court to "assign counsel", a sure sign that the client has few funds. The Court declined, and the Appellate Division determined that "on the Court's own motion, the appeal from the first order dated June 6, 2008, is dismissed, on the ground that no appeal lies as of right from an order that does not affect a substantial right of the appealing party (see CPLR 5701[a][2][v]), and we decline to grant leave to appeal."  Next, the court looked at plaintiff's claim that she could not afford photocopies.
 

The balance of the decision covers a frequent situation in pro-se representation; getting tangled up in discovery problems.  "The plaintiff sought to recover its fee for legal services provided to the defendant, who asserted counterclaims sounding in legal malpractice. In response to the plaintiff's requests for the production of documents, the defendant claimed to be without financial resources to photocopy the requested documents and refused to produce them, in spite of the plaintiff's offer to bear the cost of photocopying. [*2]

Since the defendant failed to establish that she made any effort to comply with the plaintiff's repeated discovery requests, the Supreme Court properly considered her lack of cooperation to be willful and contumacious, and properly conditionally granted the plaintiff's motion to preclude her from introducing the requested documents in evidence (see Kihl v Pfeffer, 94 NY2d 118; D'Aloisi v City of New York, 7 AD3d 750; Brooks v City of New York, 6 AD3d 565; Donovan v City of New York, 239 AD2d 461; cf. Scardino v Town of Babylon, 248 AD2d 371).

In light of the defendant's noncompliance with discovery, the Supreme Court properly denied her motion to quash certain subpoenas which had been served on nonparty witnesses
 

Full post as published by New York Attorney Malpractice Blog on November 24, 2009 (boomark / email).