United States:
Risk Management Lawyers Rejoice As Clear Scope Of Representation Defeats Malpractice Claim
04 March 2019
Holland & Knight
To print this article, all you need is to be registered or login on Mondaq.com.
Peter R Jarvis is a Partner in Holland &
Knight's
Portland office.
In Attallah v. Milbank, Tweed, Hadley & McCloy,
LLP, 2019 WL 362266, the Supreme Court of New York's
Appellate Division upheld the dismissal of a legal malpractice and
breach of fiduciary duty case against a law firm on the ground that
the firm's letter of engagement with the client established
that the firm did not owe the claimed duties to the client.
In 2011, the defendant law firm, Milbank, Tweed, Hadley &
McCloy (Milbank), agreed to represent the plaintiff, Ahdy Attallah
following Attallah's expulsion from the New York College of
Osteopathic Medicine (the College). Pursuant to the terms of the
letter of engagement between Milbank and Attallah, Milbank agreed
to provide:
[A]ll activities necessary and
appropriate in our judgment to investigate and consider options
that may be available to urge administrative reconsideration of
your dismissal [but] does not, however, encompass any form of
litigation or, to the extent ethically prohibited in this
circumstance, the threat of litigation, to resolve this matter.
This engagement will end upon your re-admittance to the College or
upon a determination by the attorneys working on this matter that
no non-litigation mechanisms are available to assist you. The scope
of the engagement may not be expanded orally or by conduct; it may
only be expanded by a writing signed by our Director of Public
Service.
1
When the College refused to reinstate Attallah, he demanded that
Milbank nonetheless attempt to negotiate with or sue the College,
but Milbank refused to do either. Attallah then sued Milbank for
breach of fiduciary duty and legal malpractice. On appeal, the
Appellate Division sustained the trial court's grant of
Milbank's motion to dismiss because:
The letter of engagement conclusively
demonstrated that there was no promise to negotiate. There was only
a promise to investigate and consider whether there were any
options possibly available to urge the school to reconsider the
plaintiff's expulsion. Anything else, including the
defendant's failure to commence litigation against the school
and the defendant's alleged rendering of legal advice regarding
the efficacy of the plaintiff's commencing a defamation action
against others, was outside the scope of the letter of
engagement.
2
Or, as the Appellate Division went on to say, "An attorney
may not be held liable for failing to act outside the scope of a
retainer ***."3
Conclusion and Takeaway
In the cabinet of risk management tools, a clear identification
of the scope of representation is second in importance only to a
clear identification of who is and is not a client. If, for
example, the letter of engagement between Attallah and Milbank had
merely referred in general terms to the firm representing Attallah
with respect to the matter of his expulsion from the College, the
agreement could well have been construed against Milbank as its
drafter. In-house and outside risk management counsel are unlikely
to find a better case to illustrate the point that the few extra
minutes it can take to describe the scope of a representation with
care are well worth the investment.
Footnote
1
Id. at *1.
2
Id. at *2.
3
Id.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
POPULAR ARTICLES ON: Litigation, Mediation & Arbitration from United States
Defenses To Contract Damages In New York
KI Legal
Defendants who face breach of contract damages claims can assert several defenses to mitigate, or altogether eliminate, a potential award of damages against them.
Is Premises Liability The Same As Negligence?
Ward and Smith, P.A.
In today's world, we travel all the time. We shop at grocery stores and department stores, we take walks on the sidewalks in our neighborhoods, and we go to large events, such as concerts or weddings, at various venues.
Defamation vs. Free Speech
Buckingham, Doolittle & Burroughs
The concepts of defamation and free speech often collide, raising questions about where the line should be drawn between the right to express oneself and the responsibility...