Rhee-Karn v. Lask

Background

Margaret Rhee-Karn brought a legal-malpractice action against Susan Chana Lask, who represented her for more than two years in a child-custody dispute in New York Family Court. The parties signed a retainer agreement in May 2012 that estimated fees of approximately $70,000 to $100,000, set a minimum flat fee of $25,000 plus disbursements, and provided for hourly billing.

During the Family Court case, Lask advised Rhee-Karn to pursue constitutional claims in federal court. Lask filed the First Federal Action in December 2012 against several people involved in the Family Court proceedings; that action was voluntarily dismissed in February 2013. Lask later filed the Second Federal Action in August 2013. That action was dismissed in September 2014 based on a legal rule requiring federal courts to refrain from interfering with certain ongoing state proceedings.

Lask also represented Rhee-Karn in Family Court. Rhee-Karn alleged that Lask committed malpractice by failing to retain a qualified expert to rebut testimony from Dr. Stephanie Brandt, a court-appointed forensic psychiatrist. The Family Court later awarded sole legal and physical custody to the child’s father, subject to Rhee-Karn’s visitation rights. The Family Court’s decision relied on Dr. Brandt’s testimony and other evidence, including testimony and conduct by both parents.

Claims and Motions

Rhee-Karn’s remaining claims were legal-malpractice claims concerning three categories of expenses: the First Federal Action, the Second Federal Action, and Lask’s representation in Family Court. The parties filed cross-motions for summary judgment, which asks whether the record shows that no genuine dispute of important fact requires a trial and that one party is entitled to judgment as a matter of law.

Under New York law, a legal-malpractice plaintiff must establish attorney negligence, proximate cause, and actual damages. Proximate cause requires showing that the plaintiff would have prevailed in the underlying matter or would not have incurred damages without the attorney’s negligence. Expert testimony is generally required to establish negligence, but the court explained that an expert is unnecessary when the attorney’s conduct falls below any standard of reasonable care or when ordinary experience is sufficient to evaluate the conduct.

First Federal Action

The court granted Rhee-Karn summary judgment on the malpractice claim concerning the First Federal Action. The evidence showed that Lask advised Rhee-Karn to file that action without researching the legal problems associated with bringing constitutional claims in federal court while the Family Court case was ongoing. The court found that Lask did not research those issues until after the First Federal Action had been dismissed.

The court held that this was not merely a mistaken choice among reasonable legal strategies. It found that Lask’s failure to research the relevant law fell below any standard of care and that expert testimony was not necessary. The court also found that Lask’s negligence was the but-for cause of the legal expenses Rhee-Karn incurred in connection with the First Federal Action. Those fees were considered actual and ascertainable damages.

Second Federal Action

The court granted Lask summary judgment on the malpractice claim concerning the Second Federal Action. Unlike the first action, the record showed that Lask researched the relevant issues and repeatedly warned Rhee-Karn against filing another federal lawsuit before the Family Court proceedings ended. Lask told Rhee-Karn that a federal court would not become involved and warned that the law weighed against her and that the case could be dismissed.

The court held that these warnings showed that Lask’s conduct did not fall below the ordinary and reasonable skill and knowledge expected of a lawyer. Rhee-Karn did not present evidence creating a genuine factual dispute on this issue.

Family Court Representation

The court also granted Lask summary judgment on the malpractice claims concerning the Family Court representation. Rhee-Karn argued that Lask negligently failed to retain a qualified expert to rebut Dr. Brandt’s testimony. The court found no dispute that this alleged failure was not the but-for cause of the Family Court’s custody decision.

The Family Court had relied on multiple factors beyond Dr. Brandt’s testimony, including Rhee-Karn’s testimony and conduct, her refusal to answer questions, alleged violations of court orders, employment and housing circumstances, and the father’s ability to support the child and continued residence in the same home. Rhee-Karn also submitted no qualified expert report addressing Lask’s Family Court representation or challenging Dr. Brandt’s report and testimony. The court therefore found that she had not raised a factual question about causation.

The court separately rejected Rhee-Karn’s theory concerning fees paid to Jonathan Gould for a peer-review report. Although Rhee-Karn offered evidence suggesting Gould was not qualified to provide rebuttal testimony, she did not show that he was unqualified to perform the more limited peer-review service he provided. She therefore did not establish that the expense was proximately caused by Lask’s alleged negligence.

Failure to Prosecute

The court denied Lask’s motion to dismiss Rhee-Karn’s claims for failure to prosecute. The court considered the duration of any delay, notice that further delay could lead to dismissal, possible prejudice, court-calendar concerns, Rhee-Karn’s opportunity to have her case heard, and whether lesser sanctions would be effective. The court found that these factors did not favor dismissal, particularly because Lask had not shown that Rhee-Karn was warned that delays in producing discovery materials would cause dismissal.

Disposition

Judge Cote concluded that Rhee-Karn’s October 18 motion for summary judgment was granted in part, as was Lask’s October 18 motion for summary judgment. Rhee-Karn was granted summary judgment on the legal-malpractice claim concerning the First Federal Action. Lask was granted summary judgment on the claims concerning the Second Federal Action and her representation of Rhee-Karn in Family Court. Lask’s motion to dismiss for failure to prosecute was denied. A separate order was to set the schedule for the remaining proceedings.