Legal Updates for Lawyers’ Professional Liability - CASE LAW UPDATE

An attorney cannot be liable for failing act outside the scope of the retainer agreement.
Kohler v. Polsky, 219 AD3d 821, 822 (2d Dept 2023)

The plaintiff had retained the defendant-attorney for representation in a workers’ compensation claim. The retainer agreement explicitly excluded the possibility that the defendant was representing him in other types of claims. 

The plaintiff alleged the defendant committed malpractice by failing to advise him of potential personal injury claims against other third parties. The defendant subsequently moved for summary judgment, arguing that advising the plaintiff of potential personal injury actions was beyond the scope of the retainer agreement. 

Looking to Rule 1.2(c) of the Rules of Professional Conduct, the court noted that a lawyer cannot be liable for failing act outside the scope of their retainer. 

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