Grace v. Law

On October 21, 2014, in Grace v. Law, the New York Court of Appeals issued a ruling that clarifies an issue that had been somewhat unclear with respect to attorney malpractice litigation. The Court held that in a malpractice action arising from an underlying litigated matter, the failure of the malpractice plaintiff to pursue an appeal of the underlying adverse ruling will only bar a subsequent legal malpractice case if it can be determined that the appeal was likely to have succeeded. Based on the evidence presented in that case, the Court ruled that the summary judgment evidence as to the merits of the underlying appeal was insufficient to support granting summary judgment in favor of the defendant attorneys. (Addressing an unrelated issue, the Court also held that a fact question was presented as to whether there was a continuous representation by the defendants such that they were not entitled to summary judgment based on their statute of limitations defense.)

This decision seems likely to continue the trend towards complicated rehashing of the underlying matter as part of the case within a case approach commonly utilized in attorney malpractice litigation. As in this matter, a jury may ultimately be asked to determine whether an underlying appeal would have been likely to succeed as part of the analysis whether the attorneys committed malpractice. Jurors would seem rather unqualified to make that determination, and are likely to be confused rather than enlightened by the testimony of conflicting expert testimony about whether an appeal would have been likely to succeed.