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Andrew Lavoott Bluestone

In 2014, we wrote about a new and unprecedented rule that if an appeal of the case leading to a legal malpractice action was reasonably likely to succeed, that appeal must be taken or the legal malpractice case is waived. Grace v. Law, 24 N.Y.3d 203 (2014). This rule was thrust on the legal malpractice bar without any warning when the Court of Appeals granted certiorari on an unpublicized case and rendered a novel decision in a question of first impression. The new rule serves as another unique legal malpractice roadblock in addition to the gateways of “privity,” the “successor attorney” rule, the “attorney judgment” rule, the economic damages only rule, the “effectively compelled” settlement rule and the “settlement as waiver” rules. What we did not expect was an almost total lack of case law arising from this new rule. We’ll examine the sparse landscape since.

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