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Law School Case Brief

Arnold v. Devane - 2014 NY Slip Op 08534, 123 A.D.3d 1202, 998 N.Y.S.2d 509 (App. Div.)


In addition to showing an attorney-client relationship, a legal malpractice claim also requires a demonstration that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney's breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages. To be entitled to summary judgment dismissing the complaint, a defendant must present evidence in admissible form establishing that plaintiff is unable to prove at least one of these elements.


Gary Arnold was charged by indictment with various counts of sex-related crimes for which attorney Devane was retained to represent him as counsel. Following a trial in 2009, Arnold was convicted of all counts and, thereafter, Devane's representation was discontinued and different counsel was retained. Arnold and his wife,  subsequently commenced this legal malpractice action against defendant Devane. After answer, Devane moved for summary judgment dismissing the complaint, which  the New York trial court denied. The attorney sought appellate review.


Did the trial court err in not dismissing the malpractice claim brought against an attorney?


Yes, in part.


In the legal malpractice case, the appellate court held that the trial court should have dismissed the claims of the client's wife, as an attorney-client relationship was required for a legal malpractice action and the wife's claims were purely derivative. The attorney, however, was not entitled to summary judgment, as the client had demonstrated a colorable claim based upon his assertions of innocence in the underlying criminal matter, the court's reversal of the judgment of conviction, and the district attorney's decision not to reprosecute him and the consequent dismissal of the indictment.

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