THE SCOPE OF REPRESENTATION AND LEGAL MALPRACTICE

Ressler v. FARRELL FRITZ, PC, 2022 NY Slip Op 31706 - NY Co. Supreme Court 2022:

"...Legal malpractice concerns whether an attorney "failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession" (AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 434 [2007]). A cause of action for legal malpractice requires the plaintiff to plead and prove the attorney's negligence, that the attorney's negligence was the proximate cause of plaintiff's damages, and actual damages (Federal Ins. Co. v North Am. Specialty Ins. Co., 47 AD3d 52, 59 [1st Dept 2007]). To establish proximate cause, the "plaintiff must demonstrate that `but for' the attorney's negligence, plaintiff would either have prevailed in the matter at issue, or would not have sustained any `ascertainable damages' (Leder v Spiegel, 31 AD3d 266, 268 [1st Dept 2006], affd 9 NY3d 836 [2007], cent denied sub nom. Spiegel v Rowland, 522 US 1257 [2008] [citations omitted]).

It is well settled that "[a]n attorney may not be held liable for failing to act outside the scope of the retainer" (Genesis Merchant Partners, L.P. v Gilbride, Tusa, Last & Spellane, LLC, 157 AD3d 479, 482 [1st Dept 2018], citing Ambase Corp. v Davis Polk & Wardell, 8 NY3d 428 [2007]). Here, plaintiffs have not dispelled all questions of material fact as to whether they had engaged defendants to monitor DART for changes to the four tidal wetlands permits issued to Village People and to commence Article 78 proceedings challenging potential modifications to those permits. In defining the scope of defendants' representation, the Engagement Letter states that "[Farrell Fritz] will represent you in connection with the commencement of an action against Village People LLC, and its principal, John Zaccaro, Jr. asserting possible adverse possession and other claims relating to real property located at Pennant Walk" (NYSCEF Doc No. 39 at 1). The letter further states that defendants shall provide legal services "in connection with potential litigation involving title to real property located in Saltaire" (id.). While the phrase "and other claims" is ambiguous, the Engagement Letter does not mention the DEC, the permits issued to Village People or the commencement of any proceeding to challenge future modifications or amendments to those permits. Further, the DEC issued the permits to Village People in 2017, and the time within which to challenge that determination expired long before plaintiffs executed the Engagement Letter. Plaintiffs have not shown whether the Engagement Letter was ever modified to expand the scope of defendants' obligations to include continually monitoring the four permits issued to Village People and authorizing defendants to commence legal proceedings if DEC were to modify those permits. Given plaintiffs' failure to meet their prima facie burden, the branch of the motion seeking partial summary judgment on the issue of defendants' negligence is denied without regard to the sufficiency of defendants' opposition."

THE SURROGATE'S RIGHT TO COUNSEL

The Child-Parent Security Act (the CPSA) became effective on February 15, 2021 and can be found in Article 5-C of the Family Court Act. 

Section 581-402 of the CPSA, entitled "Eligibility to enter surrogacy agreement" provides at paragraph (a) (6) as follows:

"(6) the person acting as surrogate, and the spouse of the person acting as surrogate, if applicable, have been represented throughout the contractual process and the duration of the contract and its execution by independent legal counsel of their own choosing who is licensed to practice law in the state of New York which shall be paid for by the intended parent or parents except that a person acting as surrogate who is receiving no compensation may waive the right to have the intended parent or parents pay the fee for such legal counsel. Where the intended parent or parents are paying for the independent legal counsel of the person acting as surrogate, and the spouse of the person acting as surrogate, if applicable, a separate retainer agreement shall be prepared clearly stating that such legal counsel will only represent the person acting as surrogate and the spouse of the person acting as surrogate, if applicable, in all matters pertaining to the surrogacy agreement, that such legal counsel will not offer legal advice to any other parties to the surrogacy agreement, and that the attorney-client relationship lies with the person acting as surrogate and the spouse of the person acting as surrogate, if applicable;

FOR PRO BONO MATRIMONIAL RETAINER AGREEMENTS

The Judicial Departments of the Appellate Division of the New York State Supreme Court amended, effective June 1, 2019, the Statement of Client's Rights and Responsibilities (to be used only when representation is without fee) set forth in section 1400.2 of Part 1400 of Title 22 of the Official Compilations of Codes, Rules and Regulations of the State of New York.

See https://www.nycourts.gov/LegacyPDFS/rules/jointappellate/1400.2%20-%20Joint%20Order.pdf

CLARIFICATION ON STATEMENT OF CLIENT'S RIGHTS AND RESPONSIBILITIES

As reported on February 15, effective that date, the "Statement of Client's Rights and Responsibilities" has been revised (22 NYCRR § 1400.2) for matrimonial actions only.   22 NYCRR § 1400 is for matrimonial actions only. "Section 1400.1. Application. This Part shall apply to all attorneys who, on or after November 30, 1993, undertake to represent a client in a claim, action or proceeding, or preliminary to the filing of a claim, action or proceeding, in either Supreme Court or Family Court, or in any court of appellate jurisdiction, for divorce, separation, annulment, custody, visitation, maintenance, child support, or alimony, or to enforce or modify a judgment or order in connection with any such claims, actions or proceedings. This Part shall not apply to attorneys representing clients without compensation paid by the client, except that where a client is other than a minor, the provisions of section 1400.2 of this Part shall apply to the extent they are not applicable to compensation."

As noted by an anonymous comment to the prior post "The general statement of client rights (22 NYCRR 1210.1) has not changed. It was last changed in 2018 to prohibit discrimination based on gender identity/expression." However, the current form on the New York State Bar Association site does not contain this correction (see https://www.nysba.org/WorkArea/DownloadAsset.aspx?id=27830); thus it would be suggested that anyone utilizing that form insert on paragraph 10 after "sexual orientation" and prior to "age" the words "gender identity, gender expression"

STATEMENT OF CLIENT'S RIGHTS AND RESPONSIBILITIES HAS BEEN REVISED

Effective today, February 15, 2019, the "Statement of Client's Rights and Responsibilities" has been revised. An attorney shall provide a prospective client with a statement of client's rights and responsibilities at the initial conference and prior to the signing of a written retainer agreement. If the attorney is not being paid a fee from the client for the work to be performed on the particular case, the attorney may delete from the statement those provisions dealing with fees. The attorney shall obtain a signed acknowledgment of receipt from the client.

The statement shall be in the form found at this link: Revised Statement of Client's Rights and Responsibilities