On October 21, 2014, the Court of Appeals issued a decision in Grace v. Law, holding that a client’s failure to pursue an appeal in an underlying action does not bar a malpractice action arising from that action, unless the client was likely to have succeeded in the appeal.
In Grace, the plaintiff, whose medical malpractice claim had been dismissed on statute of limitations ground, brought a legal malpractice claim against his attorneys for failing to timely pursue the lawsuit. The attorneys argued that any malpractice claim against them was barred because the plaintiff had failed to pursue a “nonfrivolous” appeal of the dismissal of the underlying action. The plaintiff countered that the failure to pursue an appeal should not bar a malpractice claim unless the appeal was “likely to succeed.” The Court of Appeals agreed:
On balance, the likely to succeed standard is the most efficient and fair for all parties. This standard will obviate premature legal malpractice actions by allowing the appellate courts to correct any trial court error and allow attorneys to avoid unnecessary malpractice lawsuits by being given the opportunity to rectify their clients’ unfavorable result. Contrary to defendants’ assertion that this standard will require courts to speculate on the success of an appeal, courts engage in this type of analysis when deciding legal malpractice actions generally. We reject the nonfrivolous/meritorious appeal standard proposed by defendants as that would require virtually any client to pursue an appeal prior to suing for legal malpractice.
(Internal citations omitted).