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Can I sue my attorney and his firm for malpractice and collect from their insurance carrier?

Brooklyn, NY |

I had a 50h hearing but my attorney never filed a lawsuit by the time I found out the statue of limitation had past. Furthermore, I found out my attorney was a full-time employee at 2 different firms, which is a conflict of interest and neither firm knew until now. One of the firms is offering me some money from the attorney's personal account, however, I've been adamant that I want to know if they have malpractice insurance no one will give me a straight answer. My attorney claims he has no malpractice insurance but I know him to be lest then truthful also wouldn't his firm have to have insurance. My lawsuit was for a trip and fall which resulted in me breaking my foot and was part of the catalyst for me losing my employment. My doctor informed me that I will need surgery on my foot.

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Attorney answers 7


If the lawyer has insurance and timely notifies the carrier it will defend and indemnify the lawyer. I handle lots of legal malpractice cases and many lawyers don't have insurance.

I am a former federal and State prosecutor and have been doing criminal defense work for over 17 years. I was named to the Super Lawyers list as one of the top attorneys in New York for 2012 and 2013. No more than 5 percent of the lawyers in the state are selected by Super Lawyers. Martindale-Hubbell has given me its highest rating - AV Preeminent - in the areas of Criminal Law, Personal Injury, and Litigation. According to Martindale-Hubbell”AV Preeminent is a significant rating accomplishment - a testament to the fact that a lawyer's peers rank him or her at the highest level of professional excellence." Fewer than 8% of attorneys achieve an AV Preeminent rating. I also have the highest ranking – “superb” – on Avvo. The above answer, and any follow up comments or emails is for informational purposes only and not meant as legal advice.


If you file a lawsuit they must disclose the existence of insurance. If it is a firm then chances are they had insurance. Smaller firms and solos are less likely to carry insurance.

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It's possible for your attorney to not have insurance, it's not required.

You should speak to a legal malpractice attorney ASAP to discuss a possible case.

Joseph L. Ciaccio is a New York attorney with the Law Offices of Joseph M. Lichtenstein, P.C. ( The answers posted herein are not legal advice and do not create an attorney-client relationship.


Legal malpractice cases are traditionally more difficult than a conventional personal Injury case. I have been handling these types of cases for more than 30 years and essentially it is a "case within a case". That means that the underlying case must be proved, in addition to proving the malpractice of the lawyer. The failure to prove one or the other will cause the entitled claim to fail.

Before getting started, it is imperative that both claims be investigated and evaluated. The. Statute of limitations for the municipal claim is 1 year and 90 days and the legal malpractice claim has a 3 year statute. It is critical to know the exact nature of your lawyer's negligence before moving forward.
Alfred Laub
Committed to Helping People Reclaim Their Lives

The underlying facts for each situation are unique. Any responses given are for informational purposes only and are not designed or intended as professional legal advice, since any suggestions may not apply to your specific circumstance. This information exchange does not create an attorney-client relationship of any kind. Should you determine that you need immediate legal assistance or action , you should contact your local Bar Association for a referral to an attorney in your area.


Blowing a statute of limitation is a violation of a statute and is therefore in a category known as negligence per se. That is, the transgression in and of itself constitutes negligence. The next question is whether that negligence is a departure from good and accepted legal practice in New York. Any reasonable person will have to conclude, yes. The final inquiry in this chain is whether the malpractice is the proximate cause of your damages. Since you are forever barred from filing this lawsuit and the malpractice caused this bar, we have a putative causal connection but we do not yet have damages. To establish damages, one must prove that s/he would prevail in the underlying case.

It takes a lawyer familiar with both the requirements of proving a malpractice case and proving the underlying case to do a proper job here. A trip and fall is no longer an easy case, even in Brooklyn. The de minimis defense and the open and obvious defense are prevailing more and more often. Juries are more cynical than ever. Picking a jury for a legal malpractice case involves, essentially, picking jurors for two cases. The rub is that a person may be a good juror for one branch of the case but not the other. Picking a jury in this context is partially about minimizing conflicts.

My point is, many claim to do malpractice and many do. You need a lawyer who understands the requirements of proving the malpractice case and proving the underlying tort (in this case) case.

I am a co-author of WEITZ ON AUTOMOBILE LITIGATION: THE NO FAULT HANDBOOK. The opinions expressed in this answer are not legal advice. These opinions are based on New York practice. We have no attorney-client relationship. conducting a conversation with me through the avvo comments section does not create an attorney-client relationship. I may be contacted at 212-553-9300.


While legal malpractice cases pose significant issues, letting a statute of limitations expire when you have a credible claim is indicative that you may have a case to pursue. Have a legal malpractice attorney retained and make sure claims are investigated not only against the attorney but also against both firms as well. I am sure that our firm and the other attorneys who responded to you would be glad to discuss your case.


You can certainly have a local legal malpractice lawyer investigate.

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