II. Attorney

ATTORNEY AND LEGAL SERVICES CAUSES OF ACTION

Types for Causes of Action:

  1. Attorney Malpractice
  2. Attorney Increasing Inadequate Contingency Fee
  3. Claim for Attorneys Fee
  4. Judiciary Law § 487 (Attorney Deceit)
  5. Legal Fraud
  6. Legal Malpractice in Criminal Cases
binding contract legal services attorney lawyer malpractice judiciary

I. ATTORNEY MALPRACTICE

Elements to prove:

  1. An attorney-client relationship must exist to perform a specific task;
  2. the attorney failed to exercise that degree of care, skill and diligence;
  3. commonly possessed and exercised by a member of the legal community;
  4. such negligence was a proximate cause of the loss in question, that requires a plaintiff to prevail on a claim for legal malpractice, to show
    1. but for the attorney’s negligence;
    2. the client would either have been successful in the underlying matter or would not have sustained; ascertainable damages; and
  5. actual damages were sustained.

II. ATTORNEY INCREASING INADEQUATE CONTINGENCY FEE

Elements to prove:

  1. you must rebut presumption that compensation is reasonable;
  2. make a threshold showing that under the circumstances of the case, the fee awarded pursuant to the schedule is inadequate;
  3. due to the extraordinary circumstances of the case; and
  4. the statutory fee is unreasonable.
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III. CLAIM FOR ATTORNEY’S FEE

It is not recoverable in an action unless specifically provided for by statute or contract.

IV. JUDICIARY LAW §487 (ATTORNEY DECEIT)

Elements to prove:

  1. mere negligence or mis-advice is not sufficient;
  2. the deceit is directed at the court or a party, ongoing litigation, probable future litigation that is a “chronic” pattern or “extreme” deceptive practice, significant, long, and very demonstrable; and
  3. damages are approximately caused by the deceit or deceptive practice.

V. LEGAL FRAUD

Elements to prove:

  1. an act was done or omitted;
  2. amounting to positive fraud; or
  3. is construed as a fraud by the court because of its detrimental effect upon public interests and public or private confidence.

VI. LEGAL MALPRACTICE IN CRIMINAL CASES

Elements to prove:

  1. an attorney;
  2. failed to exercise;
  3. ordinary reasonable skill and knowledge;
  4. commonly possessed by;
  5. a member of the legal profession; and
  6. a plaintiff would have succeeded in the underlying action “but for” the attorney’s conduct;
  7. the attorney was the proximate cause of the conviction;
  8. the duty breach caused plaintiff “actual and ascertainable damages”—no non-pecuniary damages are recoverable; and
  9. plaintiff must be innocent.

the above is an abstract from the Encyclopedia of New York Causes of Action by Ernest Edward Badway, 2018 edition

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