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NY: The Retainer Agreement as a Checklist of Duties

Douglas v. Dashevsky, 62 A.D.3d 937 (2009).

NY: Employment Law

Student Contributor: Nicholas Tam

Facts: In 2002, plaintiff retained the attorney to represent her in a claim of employment discrimination. The plaintiff is an employee who alleges that her former employer wrongfully discharged her as a result of her medical condition, Multiple Sclerosis. She was diagnosed in August 2002. Plaintiff’s attorney learned during the course of representation that the plaintiff was entitled to group long-term disability insurance benefits through the employer’s insurance carrier. After becoming aware of this, in February 2003, the attorney sought to modify the retainer agreement to incorporate legal fees for any recovery of claims for disability insurance benefits.

Pursuant to the insurance policy, plaintiff was required to file a notice of claim within 270 days of her disability in order to claim long term benefits. Since her disability was discovered in August 2002, she was required to file a claim no later than May 2003. Since the time limit had run, Plaintiff was denied disability benefits for not filing a timely claim. The plaintiff alleged the attorney had ample time to file a notice of claim with the employer’s insurance carrier because the attorney had already represented her for nine months since she was first diagnosed with her disability. Moreover, the attorney was aware of the insurance claim since he sought to modify the retainer agreement to reflect the additional fees of taking on this insurance claim. The attorney firm argued that plaintiff retained her solely for representation on the claim of wrongful termination, to obtain a damage award, and restore her to her prior position.

Issue: Whether the attorney acted competently under Disciplinary Rule 6-101 in pursuing the employment discrimination claim, but failing to file a timely notice of claim to the employer’s insurance carrier to cover the plaintiff?

Ruling: The plaintiff pleaded sufficient facts to fit within legal malpractice, and the motion to dismiss, pursuant to CPLR § 3211(a)(7) was denied. The attorney’s failure to file a claim with the employer’s disability carrier harmed plaintiff because the plaintiff was time barred under the statute of limitations and could not collect disability insurance. The modified retainer agreement in February 2003 to account for recovery for a successful insurance claim reflected the attorney’s new duty to competently provide legal services in attempting to obtain disability insurance from the employer, which he failed.

Lesson: The retainer agreement outlines the scope of representation, and as such, the attorney must follow its terms and conditions competently and fully. The failure to diligently perform a legal service or task as outlined in the retainer agreement may amount to legal malpractice if the client suffers harm due to the improper handling of a certain matter.

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Posted in: New York