The Nightmare of Section 487

 

Most lawyers are generally familiar with the standards of practice, departures from which make them vulnerable to claims of legal malpractice.*  Unlike their bretheren in the medical profession who have felt under attack for decades from lawyers who sued them for medical malpractice, leading to a nationwide effort for tort reform, because lawyers in essence make up the rules, they have been insulated from the kind of “crisis” affecting the medical field.  But life is long, the wheel turns, and Judiciary Law §487 promises to make life as a lawyer more uncomfortable than any doctor ever felt.

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Physician Professional Misconduct

 

The practice of medicine is perhaps one of the most mentally, as well as physically demanding and challenging of professional endeavors.  Patients are today more sophisticated and knowledgeable about their own bodies and medical conditions, and thus present more burdensome demands on a doctor’s time.  Government regulations on everything from fees, record keeping, as well as licensure, and the ultimate watch-dog, the tort system, dilute the satisfaction and fulfillment that should come from patient care.  If you are a doctor, keeping up with changing medical care standards and good intentions may not be enough to satisfy acceptable standards of professional conduct.  It behooves the doctor to be aware of the fact that under New York law (Education Law §6530), there are 48 “Definitions of professional misconduct.”  Section 6531 has an “additional definition” dealing with fee splitting making in all 48.

Court of Appeals Rules there is Privity between the Estate Planner and the Client’s Personal Estate Representative: But no Privity to Beneficiaries of the Estate

The traditional protection from legal malpractice claims afforded Estate practitioners by the doctrine of Privity has been relaxed by a recent New York Court of Appeals decision.

In the Estate of Saul Schneider v Finmann[i], a unanimous Court of Appeals has ruled that a personal Estate representative “stands in the shoes of the decedent,” and therefore has “the capacity to maintain a malpractice claim on the Estate’s behalf[ii].”

“Attorney Client Privity is Alive and Well Now, Even when You’re Dead”

Until quite recently, Estate practitioners were protected from Estate planning malpractice claims by Estate representatives by the often overlooked protections afforded by the doctrine of Privity. However, with their unanimous June 2010 decision in the Estate of Saul Schneider v Finmann[i], the New York Court of Appeals has relaxed this traditional safeguard and allowed for a new cause of action in the State against a negligent Estate planning attorney.

Although the Schneider decision represents a marked change from the prior bar on suits by personal representatives against a negligent Estate planning attorney, its rationale is far from revolutionary, and its rather narrow ruling endeavors to balance the interests of both Estate representatives and their legal counsel.