Legal Malpractice

Disgorgement in a Breach of Fiduciary Duty-Legal Malpractice Case

By (Andrew Lavoott Bluestone)

Reisner v. Litman & Litman PC is a motorcycle - car collision case in which plaintiff was driving his motorcycle in Nassau County. He was driving on a road that had become known to be dangerous.  At this particular intersection there had been a large number of turning left accidents, which later was said to be caused by a double set of traffic lights, which to a certain extent contradicted each other.

Defendant law firm was retained by motorcyclist and started an action against the driver.  Soon, but not soon enough, they learned of the dangerous road situation and filed a motions seeking leave to file a late notice of claim against the County.  It was denied.

Two things are interesting in this case.  The first is that both sides failed to discuss third-party liability of the traffic light company under Espinal v. Melville Snow Contractors, Inc.., 98 NY2d 136 (2002).

More interestingly, the Court determined that defendants negligently handled the motion for leave, and ordered disgorgement of the fees.  "An attorney may not recover fees for legal services performed in a negligence manner even when that negligence is not a proximate cause of the client's injury." Kluczka v. Lecci, 63 AD3d 796 (2d Dept, 2009). 

Here, the court ordered disgorgement of the fees involved in the County portion of the case.

Full post as published by New York Attorney Malpractice Blog on September 27, 2010 (boomark / email).