CHAPTER 9 - 9-8 MISCELLANEOUS DEFENSES

• Jurisdiction: United States

9-8 Miscellaneous Defenses

There are several general defenses that are available in legal malpractice actions. One of the authors used res judicata to dispose of a claim of fraud that could have, and should have been, asserted in previous litigation entitled Byrne v. Burke.⁹⁹ The special defense of accord and satisfaction was rejected in Cusano v. Grudberg, where the defendant tried to argue that the monetary settlement of the underlying claim compromised his claims against the attorney for malpractice.¹⁰⁰ In Idlibi v. Ollennu,¹⁰¹ the Appellate Court held that a claim for legal malpractice fails for lack of standing if the plaintiff never had an attorney client relationship with the defendant. That a client agreed in a fee agreement to arbitrate any and all claims including any claim for malpractice is a valid defense, and the attorney can compel arbitration of the claims asserted. In Asselin & Connolly v. Heath,¹⁰² the court observed that a retainer agreement that requires both parties to submit all disputes arising...