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.

The Appeal Requirement

The Court of Appeals’ rule in Grace is the natural but unprecedented outcome of the intersection of the requirement to mitigate and an institutional desire to limit legal malpractice cases. In Grace, plaintiffs started and lost a medical malpractice case on statute of limitations grounds. They then sued their attorney for legal malpractice. Their claim was that the attorneys waited too long to start the case. The attorneys moved for summary judgment, which was denied in Supreme Court and affirmed by the Third Department. The Court of Appeals then took the occasion to issue a new rule on forfeiture of legal malpractice cases for the failure to take an appeal which was likely to succeed. It wrote:

We agree that … prior to commencing a legal malpractice action, a party who is likely to succeed on appeal of the underlying action should be required to press an appeal. However, if the client is not likely to succeed, he or she may bring a legal malpractice action without first pursuing an appeal of the underlying action.

On balance, the likely to succeed standard is the most efficient and fair for all parties. This standard will obviate premature legal malpractice actions by allowing the appellate courts to correct any trial court error and allow attorneys to avoid unnecessary malpractice lawsuits by being given the opportunity to rectify their clients’ unfavorable result.