Practice point: A claim for legal malpractice is viable, despite settlement of the underlying action, if it is alleged that settlement of the action was effectively compelled by the mistakes of counsel. However, a plaintiff's conclusory allegations that merely reflect a subsequent dissatisfaction with the settlement, or that the plaintiff would be in a better position but for the settlement, without more, do not make out a claim.
Student note: To recover damages in a legal malpractice action, a plaintiff must establish that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the attorney's breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages. As to causation, a plaintiff must show that, but for the attorney's negligence, he or she would have prevailed in the underlying action or would not have incurred any damages.
Case: Benishai v. Epstein, NY Slip Op 02404 (2d Dept. 2014).
Here is the decision.
Monday's issue: Transfer of assets and Medicaid ineligibility.