In legal malpractice cases, one thing plaintiff must prove is that “but for” the negligence of defendants there would have been a better or more favorable outcome. A recent series of cases has defined a new battleground in the matrimonial legal malpractice field. Legal malpractice claims against matrimonial attorneys have been dismissed based upon the allocution taken of plaintiff at the matrimonial settlement. This is a novel defense.
In many matrimonial settlements taken in court, the parties are asked whether they understand the terms of the settlement and whether they are “satisfied” with the work of their attorney. When they answer “yes” to each, the settlement is then accepted by the court. Later, when a client sues the attorney in legal malpractice, the “satisfaction” becomes a bar to the case. Only the Appellate Division, First Department, has decided the “allocution cases.” No other departments have been presented with this novel defense.
