No. 91 Leder v. Spiegel

When Abraham Warsaski died in 1993, his only surviving relatives were two nephews, Marshall and
Michael Spiegel, who lived in Illinois. Under Warsaski's last will dated September 15, 1992 (as well as under three earlier wills executed in 1991, 1990 and 1986), he left his entire estate of approximately $800,000 to charity and specifically disinherited his nephews.

The Spiegels filed objections to the will in Manhattan Surrogate's Court in 1993, claiming that
Warsaski lacked testamentary capacity. Their first attorney withdrew from the case, citing irrevocable differences with his clients, and the Spiegels ultimately retained Manhattan attorney Joanne Rowland to represent them at trial. After rejecting a $108,000 settlement offer, they proceeded to trial in 1997 and sought to introduce photocopies of alleged writings of Warsaski to establish his lack of competency. Surrogate's Court refused to admit the evidence, due to the Spiegels' failure to authenticate the papers, and dismissed their challenge to the will.

At the trial's conclusion, Rowland moved to be relieved as counsel and to be paid the $17,704.57
balance of her legal fees and disbursements. Marshall Spiegel counterclaimed for legal malpractice and breach of contract, contending that but for Rowland's erroneous advice, he and his brother would have accepted the $108,000 settlement offer. The court dismissed Spiegel's counterclaims and granted Rowland's application for fees.

The Appellate Division, First Department affirmed in a 3-2 decision, saying Spiegel's malpractice claim is based upon nothing but bare allegations of fact and conclusory legal arguments." The majority said the claim "rests on the unsupported, conclusory assertion that he would have accepted the settlement offer but for [Rowland's] erroneous advice concerning his prospect of success at trial. There is no support for his claim in the voluminous record this matter has generated, nor is there anything in the record, such as an affidavit from his co-objectant brother Michael, to refute [Rowland's] claim that she actively encouraged the brothers to
accept the settlement, but that [Marshall Spiegel] alone had refused over Michael's protestations."

The court observed that the settlement negotiations continued "up to the morning of trial" and that Marshall said in a 1999 affirmation that "the settlement offer he now claims [Rowland] counseled him to refuse, remained open, but that he and his brother were refusing to accept it ... without verification of the value of the estate."

The dissenters argued that Spiegel properly stated a claim for malpractice. "The majority relies in part on [Rowland's] claim that she actively encouraged a settlement and that [Marshall] and his brother refused to accept it. These assertions, even assuming their truth, do not undercut [Marshall's] malpractice claim in the slightest.... That [Marshall] rejected the settlement offer for other reasons -- good, bad or otherwise -- hardly negates his contention that he would have accepted it but for [Rowland's] alleged malpractice. If the majority maintains that this contention is a 'conclusory legal argument,' the majority errs; it is an assertion of fact, what [Marshall] would have done. To the extent the majority relies on this contention being a 'bare' or 'unsupported'
allegation, that would only underscore that the majority is improperly resolving the issue of credibility against [Marshall] on [Rowland's] motion to dismiss...."