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By: David A. Slocum
A recent decision issued by the United States Court of Appeals for the Second Circuit demonstrates the importance of having carefully drafted client engagement letters clearly defining the scope of an attorney’s representation. In Allegrino v. Moscou, 2021 U.S. App. LEXIS 34936 (2d. Cir. November 24, 2021), the Second Circuit Court of Appeals affirmed the U.S. District Court’s dismissal of the plaintiff’s legal malpractice claims against his former legal counsel. In Allegrino, the plaintiff alleged he had suffered $40 million in damages as a result of the defendant attorney’s undisputed failure to appear and represent him at certain probate proceedings. The plaintiff alleged he was the beneficiary of a sizable estate which was before the Probate Court for Richmond County, New York for a determination of the estate’s beneficiaries.
The plaintiff further claimed that pursuant to an alleged will purportedly naming him as sole beneficiary of the estate, it would have been “smooth sailing” for him to have received all proceeds of the estate if the defendant attorney had appeared and represented him in the Probate Court proceedings. In the legal malpractice suit that followed the probate proceedings, the District Court dismissed the plaintiff’s claims and the Second Circuit Court of Appeals affirmed notwithstanding the plaintiff-friendly standard of review generally applicable to motions to dismiss.
The Court in Allegrino looked to the language of the attorney’s engagement letters with the plaintiff, the first of which expressly stated the attorney’s engagement was “for the limited purpose” of reviewing certain materials, conducting legal research, and determining whether to pursue an appeal of an earlier order that had been entered in the probate proceedings. The attorney’s second engagement letter with the plaintiff expressly stated that the scope of the engagement was “strictly limited … to … [pursuing that] appeal” and specifically stated that the representation did not include representation of the plaintiff in the underlying probate proceedings whether on remand or otherwise. The plaintiff alleged, however, that after the parties executed the second engagement letter, they had telephone conversations in which the attorney agreed to represent him in the post-appeal remand proceedings before the Probate Court. The plaintiff alleged that separate from payment for representation in the appellate proceedings, he also had wired funds to the attorney for representation in the probate proceedings.
Additionally, in opposing the motion to dismiss, the plaintiff presented a copy of the second engagement letter with a handwritten notation purporting to enlarge the scope of the representation “as per [the parties’ alleged] telephone conversation.” The attorney’s second engagement letter with the plaintiff stated, however, that “any … additional representations would have to be the subject of an additional and separate retainer agreement”, which neither party was bound to accept, and that no change or waiver of any of the provisions of the second engagement letter would be effective unless set forth in writing and signed by both parties. Based on the clear and unambiguous language of the attorney’s engagement letters, the District Court and Second Circuit Court of Appeals both held the attorney was entitled to dismissal of the plaintiff’s legal malpractice claims.
This case serves as a reminder to practitioners in jurisdictions around the country of the vital importance of having signed written engagement letters clearly defining the scope of representation and specifying the manner in which the scope of representation can be enlarged.