Mere Error in Judgment Cannot Be Basis for Malpractice Claim

On November 14, 2017, the First Department issued a decision in Smith, Gambrell & Russell, LLP v. Telecommunications Systems Inc., 2017 NY Slip Op. 07954, holding that a mere error in judgment cannot be the basis for a legal malpractice claim, explaining:

On appeal, defendant argues that plaintiff's filing of a sanctions motion, instead of a motion for attorneys' fees as the prevailing party pursuant to 35 USC § 285, constitutes malpractice. . . .

The record shows that plaintiff had contemplated filing a motion pursuant to 35 USC § 285 and decided against it. The statute provides that the court may award attorneys' fees to the prevailing party "in exceptional cases." Plaintiff advised defendant that it would be a "stretch" to argue prevailing party under § 285. Thus, defendant's theory that plaintiff breached a duty of care to it by choosing to apply for attorneys' fees via a sanctions motion instead of a motion under § 285 amounts to no more than an allegation that plaintiff made an error in judgment, which does not state a cause of action for malpractice.

Moreover, defendant failed to allege that the choice of a sanctions motion rather than a motion under § 285 was a proximate cause of its claimed injury, since there are no allegations in the counterclaim that would establish that the patent proceeding was an exceptional case warranting attorneys' fees.

(Internal citations omitted) (emphasis added).

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