Tuesday, February 9, 2016

A legal malpractice claim based on violation of a contract's non-disparagement provision.

Practice point:  The Appellate Division affirmed denial of defendant's motion to dismiss the complaint in this action where plaintiff alleges that he would not have lost his contractual right to certain deferred compensation if his attorneys had not acted negligently in speaking to newspaper, in violation of the non-disparagement provision of the contract. The Appellate Division found that these allegations state a cause of action for legal malpractice, and that defendant's documentary evidence fails to establish a defense as a matter of law.  As the motion court found, neither the arbitration award nor the subsequent opinions submitted by defendants unequivocally contradict plaintiff's claim that, but for defendants' alleged negligent conduct, he would not have lost his contractual benefit.

Student note:  It does not matter whether the arbitration decision was reached on the merits or under a procedural bar to considering the deferred compensation issue in the arbitration.

Case:  Barr v. Liddle & Robinson, LLP, NY Slip Op 00744 (1st Dept. 2016)

Here is the decision.

Tomorrow's issue:  Expert opinion testimony in a chiropractic malpractice action.