ALBANY – An Albany appellate panel has reinstated a legal malpractice case, finding that the attorney’s explanation of his services was insufficient to warrant summary judgment and calling for an “expert opinion to define the standard of professional care.”

The Appellate Division, Third Department, reversed Supreme Court Justice Robert Muller in Warren County (See Profile) and said the judge should not have dismissed a malpractice complaint against Judge & Duffy in Glens Falls. The Nov. 1 decision in Jack Hall Plumbing & Heating Inc. v. Monica A. Duffy, 514422, marked the second time the Third Department has addressed, and reversed, trial judges in what began as a breach of contract case and became a legal malpractice matter.

The dispute involves a family business which had hired an executive named Russell Scudder to assume managerial responsibilities. Scudder, records show, drafted an employment contract that allowed him to be terminated for cause as long as he was provided notice of the grounds and an opportunity to respond. However, shortly after he took the position the Hall family was concerned with the way Scudder was operating their business and wanted to fire him. H. Wayne Judge of Judge & Duffy was consulted.

Despite the contractual language, Judge advised the Halls that they could immediately oust Scudder, in part because the contract contradicted the company bylaws that allowed at-will terminations. Scudder sued, alleging breach of contract, but after a non-jury trial Supreme Court Justice Richard Aulisi (See Profile) found that the by-laws permitted his termination without cause. The Third Department reversed and remanded (302 AD2d 848, 2003), and Scudder was awarded $124,343 in breach-of-contract damages. The Halls then sued Judge & Duffy for professional negligence and the case was handled by Muller.

Muller granted Judge summary judgment, rejecting the affidavit of a local attorney, Frank Putorti Jr., who had said Judge’s failure to advise the Halls to “strictly adhere to the terms of the employment contract” deviated from the standard of practice.

“Plaintiff’s claim that defendants’ legal advice deviated from the relevant standard of care necessarily implies that the trial court’s decision was a deviation from sound jurisprudence,” Muller wrote in dismissing the malpractice claim.

Muller found Putorti’s “myopic principle” that strict adherence is the standard “in all employment contract analyses” unavailing in the context of this case. Judge has maintained that he advised the Halls to promptly terminate Scudder because they were profoundly concerned that their family business was in immediate jeopardy under his leadership.

“The court is not convinced that such a sterile vacuum as contains Attorney Putorti’s panoptic definition of the standard of practice is germane and, consequently, shall neither extract such a Draconian doctrine nor conclude that defendant members of the legal profession are now expected to anticipate such an imprecise standard for reviewing their professional conduct,” Muller wrote.

The Third Department reversed in a unanimous opinion by Justice Robert Rose (See Profile).

The panel said that Judge & Duffy, in moving for summary judgment, had the burden of “establishing that they had exercised the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession in discharging their obligations to the plaintiff,” and failed to do so. It said that an affidavit from Judge “failed to establish his prima facie compliance with the standard of care.”

“Judge was motivated…by Hall’s desire for urgency and his own view that engaging in the termination process provided for by the agreement would damage plaintiff’s business,” Rose wrote. “While Judge offers his legal conclusion and the business-related motivation behind it, his affirmation is insufficient to establish compliance with the applicable standard of care because he neither defines that standard nor explains that a reasonable attorney would reach the same conclusion that he did on the facts as they were presented to him.”

The court said the “adequacy of the professional services provided here requires a professional or expert opinion to define the standard of professional care and skill owed to plaintiff and to establish whether the attorney’s conduct complied with that standard.” Joining Rose on the panel were justices Edward Spain (See Profile), Bernard Malone Jr. (See Profile) and Elizabeth Garry (See Profile).

Cory Ross Dalmata of The DeLorenzo Law Firm in Schenectady argued for the plaintiff. Judge & Duffy was represented by Bruce Huttner of Donohue, Sabo, Varley & Huttner in Albany.

Dalmata said the decision stands for the proposition that a summary judgment motion must be based on more than an affirmation from the moving party.

Huttner said the case will now proceed to trial before Muller.

“The underlyng issue is whether an attorney can be held liable for exercising his reasonable judgment,” Huttner said. “If an attorney makes a good faith effort to exercise his judgment in a good faith manner, then just because the outcome is not favorable does not mean there was malpractice.”

Putorti was immediately available for comment.