Peter R Jarvis is a Partner in Holland & Knight's Portland office.
In Attallah v. Milbank, Tweed, Hadley & McCloy, LLP, 2019 WL 362266, the Supreme Court of New York's Appellate Division upheld the dismissal of a legal malpractice and breach of fiduciary duty case against a law firm on the ground that the firm's letter of engagement with the client established that the firm did not owe the claimed duties to the client.
In 2011, the defendant law firm, Milbank, Tweed, Hadley & McCloy (Milbank), agreed to represent the plaintiff, Ahdy Attallah following Attallah's expulsion from the New York College of Osteopathic Medicine (the College). Pursuant to the terms of the letter of engagement between Milbank and Attallah, Milbank agreed to provide:
When the College refused to reinstate Attallah, he demanded that Milbank nonetheless attempt to negotiate with or sue the College, but Milbank refused to do either. Attallah then sued Milbank for breach of fiduciary duty and legal malpractice. On appeal, the Appellate Division sustained the trial court's grant of Milbank's motion to dismiss because:
Or, as the Appellate Division went on to say, "An attorney may not be held liable for failing to act outside the scope of a retainer ***."3
Conclusion and Takeaway
In the cabinet of risk management tools, a clear identification of the scope of representation is second in importance only to a clear identification of who is and is not a client. If, for example, the letter of engagement between Attallah and Milbank had merely referred in general terms to the firm representing Attallah with respect to the matter of his expulsion from the College, the agreement could well have been construed against Milbank as its drafter. In-house and outside risk management counsel are unlikely to find a better case to illustrate the point that the few extra minutes it can take to describe the scope of a representation with care are well worth the investment.
Footnote
1 Id. at *1.
2 Id. at *2.
3 Id.
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