When you are a trial lawyer, you get pretty well acquainted with the structure and substance of pleadings, which are formal documents filed with the court that state the parties’ basic positions. After awhile, complaint A tends to look an awful lot like complaint B, which is probably a result of some attorneys believing that drafting litigation documents means pulling out a form book and filling in the blanks.
When I got the assignment to examine the Summons and Verified Complaint filed in New York by “Real Housewives of New Jersey” star Teresa Giudice against her attorney James A. Kridel, Jr., Esq. d/b/a The Kridel Law Group, some overarching themes caught my attention:
Teresa continues to deflect blame but this time, I don’t see her desperation paying off. Legal malpractice cases are very expensive to prosecute. Attorney-defendants know that their reputation and livelihood is at stake so they are more likely to fight till the end.
Moreover, lawyers are entitled to a certain amount of judgmental deference, meaning strategic decisions that look like mistakes only with the benefit of hindsight do not always support a legal malpractice case.
The clearest legal malpractice cases are ones where the attorney has missed a statute of limitations or court deadline or where the attorney fails to reveal a conflict of interest. Legal malpractice becomes much more difficult to prove where the attorney can justify his or her actions as being strategic in nature. As you will note below, Teresa’s legal malpractice suit against her attorney is an act of pure desperation.
The Elements of Legal Malpractice:
In general terms, in order to prevail in a suit for legal malpractice, the plaintiff must prove he or she probably would have won the underlying case but for the attorney’s negligence in handling the matter.
There is a tripartite test under New York law that legal malpractice complaints must pass in order to withstand a motion to dismiss [see, CPLR § 3211(a)(7)]. The complaint must assert facts showing that: 1) the attorney was negligent, i.e., he/she failed to exercise that degree of skill commonly exercised by an ordinary member of the legal community; 2) the attorney’s negligence was the proximate cause of the harm suffered; and 3) actual damages were suffered by the client. Potential, speculative or anticipatory damages will not do.
Let’s begin at the end: Damages. The third element of a claim for legal malpractice requires proof of damages suffered by the plaintiff-client that are not potential, speculative or anticipatory. I direct you to pg. 8 of the complaint. Scroll down to the first sentence after the familiar, “WHEREFORE” statement. Teresa demanded “at least” $5 million for each cause of action. That is insane. I haven’t seen that figure tossed around in a long time with cases involving REAL celebrities. Can she prove Kridel’s shortcomings caused her to suffer “reputational damage” and “lost income from business ventures” equating to $5 million? If she cannot demonstrate that her paycheck from the RHONJ, cookbook sales, and Fabellini brand totaled that amount to date, it is clear her damage plea is speculative and anticipatory at best.
Equally problematic is Teresa’s claim that Kridel failed to exercise that degree of skill commonly exercised by an ordinary member of the legal community. Teresa alleges in ¶10, “Defendant Kridel never met with Plaintiff prior to Defendant’s Kridel’s filing of the Bankruptcy case.” I’m not sure an omission of “meeting” before filing paperwork rises to the level of professional misconduct. If Kridel missed a deadline in filing the joint Chapter 7 bankruptcy case on her behalf that would certainly pique my interest if I were representing Teresa against Kridel (scary thought).
The complaint also seems to contradict itself if you read paragraphs 7,8, and 11 together. Specifically, the complaint states that in October 2009 (the fact that there are no precise dates is highly problematic) she and Joe “consulted” with the Defendant and after consulting with him they retained Kridel as counsel. Then in ¶11 the complaint avers the Defendant never “met” with Plaintiff prior to filing the Bankruptcy Case. This semantics game is legally irrelevant. Whether they met, consulted, or spoke exclusively on the phone is immaterial. The fact that the complaint admits he was retained as her counsel gives him the ability and authority to file paperwork on her behalf.
If Teresa never divulged certain business interests and income from rental property (see ¶16) one wonders how Kridel was supposed to properly prepare her schedules and statement of financial affairs. Paragraph 13 alleges, “Defendant Kridel, by signing the subject bankruptcy petition, falsely certified that he had ‘performed a reasonable investigation into the circumstances that gave rise to the petition.’” Do you know how low the legal standard of “reasonableness” is? It means Kridel had to merely ask questions and get answers. Nothing more – including forensic accounting or CSI-like digital investigations – was required of him.
In any event, Teresa’s lies come back to bite her with the following video that shows she and Joe met with Kridel. This footage will be the nail in her coffin. It is evidence that Teresa acquiesced to the strategy of the defendant, i.e., her attorney James Kridel.
Another major hurdle for Teresa to overcome is explaining away why she did not raise this weighty issue with Judge Salas during sentencing. Begging and pleading only when the chips are stacked against you makes your arguments appear less credible.
Attorney-Client Privilege Out the Window:
If a client sues their attorney for malpractice, courts deem it a waiver of the attorney-client privilege to the extent that the attorney needs to reveal confidential communications for their defense. If Teresa wants to go head-to-head with Kridel in court, he will most certainly divulge information – probably of the incriminating variety – in order to defend his actions as her counsel. Those impeaching tidbits could result in more jail time for Teresa should the government pursue newly discovered crimes she committed.
There is no doubt some lawyers take advantage of the gift they have been given to practice law. I do not think this is one of those circumstances. If a client does not get the result they were expecting, the law will not recognize that as evidence of legal malpractice. It is that simple.
Stacy Slotnick, Esq. holds a J.D., cum laude, from Touro Law Center and a B.A., summa cum laude, from the University of Massachusetts Amherst. She performs a broad range of duties as an entertainment lawyer, including drafting and negotiating contracts; addressing and litigating trademark, copyright, and other IP issues; and directing the strategy and implementation of public relations, blogging, and social media campaigns.