New York Ruling on Requirement to Take Appeal Before Commencing Legal Malpractice Action

/ 05.Nov, 2014
The New York Court of Appeals (the state Supreme Court equivalent), issued a unanimous ruling last week in Grace v. Law, that a failure to appeal an underlying action bars a legal malpractice action “only where the client was likely to have succeeded on appeal in the underlying action.”  Defendants in Grace contended a plaintiff forfeits his or her opportunity to commence a legal malpractice action when he or she fails to pursue a nonfrivolous or meritorious appeal that a reasonable lawyer would pursue.  Plaintiff urged the court to adopt a “likely to succeed” standard.  The court reviewed the rulings of other courts which have examined the issue, including Nevada and Florida courts.  The court rejected the “nonfrivolous or meritorious appeal” standard as one which would “require virtually any client to pursue an appeal prior to suing for legal malpractice.” The difficulty with this test is it requires the client, or the attorney taking over for an attorney who may have committed malpractice, to judge the likelihood of success on appeal.  The safest proposition for the client, and possibly the best practice, may be to take an appeal without respect for the likelihood of success.  However, an argument can be made that no appeal is “likely” to succeed.  On statistics alone, less than twenty percent of cases appealed are reversed (the hyperlink is to a very fascinating article on appellate statistics by the Court Statistics Project).  Although the percentage of reversed cases increases to thirty percent for those cases in which a decision is rendered, success on appeal is still not statistically “likely.”  However, attorneys would be well advised not to depend upon statistical likelihoods when determining whether or not to take an appeal before commencing a legal malpractice action. –Josh J.T. Byrne, Esquire