Proximate cause is one of the elements of legal malpractice. There are four elements. They are a departure from good practice, proximate cause, “but for” relationship and ascertainable damages. Here, to show proximate cause, plaintiff must prove that the departures “from good and accepted practice were the proximate reason for the loss sustained.” Another way of saying this is that plaintiff must show that he or she would have won in the underlying action [or transaction] or would not have incurred any damages” except because of negligence of the attorney. If Plaintiff cannot show proximate cause, the complaint will be dismissed.
Standing is one aspect of proximate cause. One must have a right to sue the attorney before the attorney’s departure proximately cause damage. Privity of contract, no longer necessary in almost any other sphere of the law, still obtains here.
In legal malpractice cases against criminal defense attorneys, the proximate cause of the damages is the guilty plea, or conviction, not representation. This determination is viewed as a policy decision by the Courts. To state a cause of action for legal malpractice arising from negligent representation in a criminal preceding, a plaintiff must alleged his innocence or a colorable claim of innocense of his guilt. id.
One obvious example of lack of proximate cause occurs when the underlying claim was already barred by the statue o f limitations before commencement even though the attorney’s negligence was “clearly inexcusable.” Another example would be one in which it is clear that plaintiff was responsible for her own problem, such as failing to cancel a contract of sale.
Other examples arise in the settlement of the underlying case. Plaintiff claimed shortcomings in divorce representation, which then was resolved in a global settlement which itself resolved a bankruptcy proceeding. “In doing so, plaintiff precluded pursuit of the very means by which defendants’ representation of plaintiff in the matrimonial action could have been vindicated.”
Nevertheless, the rule generally remains that a legal malpractice action remains viable if it alleged that the settlement of the action was effectively compelled by mistakes of counsel. Beyond the scope of this article is a contrary line of matrimonial cases in the First Department in which mere settlement (along with the rote allocution that the client was satisfied with the attorney’s work) deprives them of a legal malpractice cause of action.
Bankruptcy filings are often associated with legal cases gone wrong, and factor into the analysis of standing. Assets of the debtor are property of the estate, and not property of the debtor. A pre-petition legal malpractice lawsuit or cause of action becomes an asset of the estate. Failure to disclose a pre-petition legal malpractice cause of action in the schedules of a Bankruptcy petition deprives the plaintiff of the legal capacity (standing) to sue for legal malpractice later. It is the trustee, and only the trustee in bankruptcy who has that standing.