The “No Harm, No Legal Mal” Defense
By Will Jordan
In a legal malpractice case arising out of an attorney’s allegedly negligent handling of litigation, the crux of the legal malpractice case is proving that the outcome of the underlying case should have been different but for the attorney’s negligence. When a legal malpractice case arises out of allegedly negligent advice given by an attorney in connection with a business transaction or other non-litigation matter, the plaintiff must allege and prove that his reliance on the negligent advice caused him harm (i.e., that but for the attorney’s negligent advice, the client would have acted differently and, by acting differently, would not have suffered the damage he alleges). In the latter case, defense counsel can destroy proximate causation by establishing that the client would not have acted any differently even in the absence of the alleged negligence. For example, in Candela Entertainment, Inc. v. Davis & Gilbert, LLP, the New York appellate court affirmed the dismissal of a legal malpractice action in which the client alleged that the attorney failed to advise it that a film involved licensing issues that necessitated licensor consents in order for the film to be freely marketable. In affirming dismissal, the court noted that the plaintiffs did not allege that they would have abandoned or postponed an assignment of film rights and intellectual property had they been advised of the licensing issues, and did not allege that they were unable to secure consents after the assignment. No harm, no legal mal.