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United States of America > New York > Litigation Dispute resolution > Appellate > Article > “Likely to Succeed” Standard For When a Failure to Appeal Will Waive Subsequent Legal Malpractice Claim

Article: “Likely to Succeed” Standard For When a Failure to Appeal Will Waive Subsequent Legal Malpractice Claim


The New York Court of Appeals recently answered an issue of first impression for the Court: What effect does a client’s failure to pursue an appeal in an underlying action have on his or her ability to maintain a legal malpractice lawsuit? In Grace v. Law, 2014 WL 5325363 (N.Y. Oct. 21, 2014), the Court held that a client who does not appeal is barred from bringing a legal malpractice action only if the client was “likely to succeed” on appeal in the underlying action.


John Grace retained two law firms to pursue a medical malpractice claim in federal court against the Veteran’s Administration and the doctor who treated him. In November 2010, the district judge dismissed most of Grace’s claims as time-barred. Grace did not appeal. Instead, Grace brought a separate action against both law firms for malpractice for failing to timely file the lawsuits. The firms filed motions for summary judgment, arguing that Grace waived his right to bring a legal malpractice action because he did not appeal the dismissal of his medical malpractice claims. The firms argued that a plaintiff who fails to pursue a non-frivolous or meritorious appeal that a reasonable lawyer would pursue forfeits his or her opportunity to commence a legal malpractice action. Grace argued that courts should instead apply a “likely to succeed” standard.


The Court agreed with Grace and held that “prior to commencing a legal malpractice action, a party who is likely to succeed on an appeal of the underlying action should be required to press an appeal.” Id. The Court found that this standard was the most efficient and fair because it would “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.” Id. Adopting the defendants’ proposed non-frivolous/meritorious appeal standard would be unworkable as it “would require virtually any client to pursue an appeal prior to suing for legal malpractice.” Id.


Although a “likely to succeed” standard is unlikely to provide much guidance to litigators, this case should serve as a reminder that failure to pursue appellate procedures may have future consequences for attorneys and clients alike.

Article by Charles E. "Trip" Dorkey III and Mark A. Silver

Last Update: 2015-Mar-01 Charles E. “Trip” Dorkey III - Dentons
The contents of this page do not constitute legal advice or create an attorney- client relationship with the contributor. Do not apply anything you read here without contacting a professional.
Author: Charles E. “Trip” Dorkey III
Law Firm: Dentons
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